Determination of Generic Name of Commodities with Geographical Features: Confusion and Ways Out

Sun Mengfei, Song Xiaoting

Abstract： The determination of the generic name of commodities with geographical features is also related to trademark protection and closely related to the protection of geographical indications. The vagueness of the judgment standard leads to the fact that in judicial practice when judging the generic name of goods with geographical features， the conflict between geographical indications and generic names is often ignored， and geographical indications or names that are not registered but play the role of geographical indications are judged as generic names indiscriminately. These judgments are not only harmful to the protection of geographical indications but also harm the interests of producers and consumers， eventually leading to the chaos of market competition order. Clarifying the judgment standard of the generic name of goods with geographical features can make the boundary between the generic name and geographical indications clearer. At the same time， it can better maintain the market order and protect the interests of all parties in the market. When determining the generic name of a commodity with geographical features， whether it has geographical significance should be regarded as one of the criteria. If it can still indicate the origin， it cannot be determined as a generic name.

Keywords： geographical; generic name; geographical indication

CLC： D 923 ? ? ? ? ? ? ? ? ? ? DC： A ? ? ? ? Article： 2096?9783（2022）03?0118?11

The determination of generic names with geographical features is usually based on Article 10 of Provisions of the Supreme People's Court on Several Issues concerning the Trial of Administrative Cases involving Trademark Authorization and Confirmation， which stipulates that a title of a fixed commodity on a relevant market formed due to historical traditions， customs， geographical environment and other reasons that are commonly used on the relevant market may be recognized as a generic name by the people's court. In recent years， the cases of determining the commodity name with geographical features as a generic name have occurred from time to time in China's judicial practice. Usually， the disputes in such cases are that enterprises try to use the locally famous， memorable and unique product names as trademarksto obtain the right of monopoly. Therefore， in the judicial practice of determining the generic name with geographical features， most of them are disputes with the trademark right： the balance of interests whether an enterprise can monopolize a geographical namedominated. The determination of generic names with geographical features related to trademark rights and to the balance of interests with geographical indication rights. the determination of the generic names of commodities with geographical characteristics is of great significance to the development of geographical indications in China， especially for the large number of product names that are not registered as geographical indications in China.

The proper use of generic names is a frequently used defense in trademark infringement cases. Once a trademark or a name is recognized as a generic name， it becomes a public resource and is shared and used by the whole society[1]. Therefore， the determination of generic names is essential. In the guiding case No. 46 "Lu Jin" case issued by the Supreme Court in 2015， the court held that recognizing the commonality of commodities with regional features should be based on specific regions rather than the whole country. Although the handmade cotton fabrics produced in other places are not called "Lu Jin，" "Lu Jin" has become the generic name of the unique folk handmade textiles in Shandong Province， with cotton as the primary raw material， hand weaving thread， hand dyeing， and hand weaving， and has been commonly used in the textile industry in Shandong Province and become a popular name agreed by the relevant social public1. Similar cases include "Yi Hong Cha" and "Liuting Zhu Ti". In addition， there are also cases of judging registered geographical indications as generic names in China's judicial practice. In both "Qinzhou Huang"2 case and "Ku'erle Xiang Li"3 case， the court considered that the name could refer to the product category under the condition of limited production area on the premise of knowing that the name involved in the case was a geographical indication， and determined it to be a generic name. This creates the phenomenon that a geographical indication protects a name and， at the same time， is a generic name in the public domain.

It can be seen that specific standards have been established to determine the generic names of commodities with geographical features in judicial practice. The court is not aware of the conflict between the generic name and geographical indications but blindly judges the generic name in the context of trademark law. Whether it is a geographical indication or not， as long as the court considers that a particular commodity name can be substituted into the judgment conditions of a generic name in the context of trademark law， it shall be determined as a generic name. This is a misunderstanding of generic names and a neglect of the protection of geographical indications. Even if these names are recognized as generic names， they still have the meaning of indicating the origin， which is inconsistent with the public attribute of generic names and conflicts with the basic theory of geographical indication protection. The determination of such generic names with geographical features should be considered more from the perspective of geographical indication protection; that is， geographical indications cannot be determined as generic names by the rigid application of the provisions on generic names in the trademark law system. The name of a local specialty that has not been registered as a geographical indication cannot be judged as a generic name for the one-sided protection of the public interest. Otherwise， it will bring not only adverse effects on the protection of geographical indications in China but also be detrimental to the balance between the interests of producers， consumers， and the public interest and the maintenance of market competition order. This paper attempts to explore the confusion and root causes of the determination of the generic name of commodities with geographical features and provide ideas for the establishment of determination standards based on clarifying the relationship between them and geographical indications.

1 Conflict of Interest between the Determination of the Generic Name of Goods with Geographical Features and Geographical Indications

A generic name is an appellation for a category of goods. According to Article 10 of the Provisions of the Supreme People's Court on Several Issues concerning the Trial of Administrative Cases involving Trademark Authorization and Confirmation， the "generic name" can be understood as the name of goods or services shared by the public or industry， which reflects the fundamental difference between one kind of goods or services and another. The generic name is in the public domain， which means that no one has the right to monopolize its use. A geographical indication is used to indicate that a commodity comes from a particular place of origin. The specific quality， reputation， or other features of the item are mainly determined by the natural or human factors of the region. This is stipulated in Article 16 of the Trademark Law of the People's Republic of China. Although the geographical indication name itself is not creative， it is generally in the form of "name of administrative division of origin + generic product name" or "abbreviation of origin + generic product name". The line between this and the generic name is indistinct. However， giving complete protection to geographical indications can protect resources and promote economic development while protecting the interests of producers and consumers. Once a geographical indication is registered， all qualified producers and sellers in the region can apply for the geographical indication. Still， producers and sellers outside the area and those who do not meet the requirements for using the geographical indication have no right to use it. Therefore， the determination of geographical indications as generic names should be very cautiousto avoid wasting resources by pushing geographical indications into the public domain indefinitely and causing losses to the right holders of geographical indications and consumers. At the same time， even if local people can use the place name not registered as a geographical indication when the place name is deeply bound with a product and has specific indicative significance， the determination of the nature of this geographical name should also be cautious.

1.1 Public Use of Generic Names Conflicts with Geographical Indication Protection

For a long time， generic names， trademarks， and geographical indications have been conflicting concepts. The generic name does not have distinctiveness. It can neither identify the source of the product nor the origin of the product. Therefore， it can neither be used as a trademark nor as a geographical indication[2]. In the field of trademarks， a sign only bearing the generic name may not be registered as trademark. Where a registered trademark becomes a generic name of goods on which it is approved to be used， it can be applied for cancellation. Due to the lack of distinctiveness of generic names， it is difficult for people in the same industry to avoid using them to mark product categories. The trademark law does not prohibit others from using generic names properly. Although geographical indications also have specific public attributes， they shall not be forbidden to be used by qualified producers with specified origin. However， the geographical indication is still a private right. The owner has the right to prohibit the use of such a geographical indication by subjects that are not produced in the place of origin or do not meet the production conditions. Generally speaking， a geographical indication must not be a generic name， and a generic name cannot be registered as a geographical indication. This is reflected in laws and regulations and judicial practice worldwide. Article 6 of EU Regulation No 1151 / 2012 stipulates that generic terms shall not be registered as protected designations of origin or protected geographical indications. There are some classic cases in foreign judicial precedents to decide whether to continue to defend relevant names by determining whether they are geographical indications or generic names. For example， Feta cheese was once considered a generic name in Europe without protection. Some European countries believe there is no geographical reason to make Greek Feta cheese more unique than Feta cheese in other regions. However， later， the European Court of Justice found that the packaging of Feta cheese exported by other countries contained some Greek cultural elements， which immediately made consumers think that Feta cheese is a Greek product. Therefore， it ruled that "Feta" is not a generic name and can be protected as PDO[3]. Bavaria case also made it clear that if a name can only describe the style or type of the product， and the geographical attribution of its origin， quality， reputation， and other features disappears， then this name will become a generic name4. It can be seen that there is an antagonistic relationship between geographical indications and generic names， and the coexistence of generic names and geographical indications is impossible. Once a geographical indication is determined to be a generic name， the nature of the geographical indication has changed， and the geographical indication is no longer a symbol that can indicate the origin， relevant reputation， and other features. Therefore， as a name that cannot tell the origin and the relevant parts， the generic name cannot be registered as a geographical indication. Once a geographical indication loses its function of indicating the source and bearing the reputation and quality features， it should be revoked. It can no longer be protected as a geographical indication.

In China's judicial practice， "Qinzhou Huang Xiao Mi" and "Ku'erle Xiang Li" are geographical indication protection products in China. Because the generic name is not protected in the geographical indication protection system， once the geographical indication is recognized as a generic name， its role in indicating the source of products disappears; that is， Ku'erle Xiang Li has wholly become the name of a kind of pear and can be produced in any region. The difference between Ku'erle Xiang Li and other pears should not be reflected in the area， but in its specific quality or other characteristics. This is not conducive to protecting the interests of producers in the region of origin of Ku'erle Xiang Li and makes Ku'erle Xiang Li lose its local features. "Ku'erle Xiang Li" was selected for the List of EU-China Agreement Protecting Geographical Indications. If it is recognized as a generic name in China， the EU can no longer protect "Ku'erle Xiang Li" on this basis. However， the current determination of the people's court does not take this into a consideration. Instead， they believe that "Ku'erle Xiang Li" and "Qinzhou Huang" are generic names established by usage in a particular region. The court held that even if they are determined as generic names， their regional specificity can still be guaranteed without affecting the protection of geographical indications. According to this logic， all geographical indications can be determined as generic names， which conflicts with the international rules for protecting geographical indications.

In addition to the registered geographical indications， it is more common to judge some commodity names with geographical features that have not been registered as geographical indications as generic names in judicial practice. It reported China has a vast territory and abundant resources， rich local famous and high-quality specialties. These local famous and high-quality specialties are usually named in the way of "origin name + product name" to indicate the origin of products and highlight local features. After China began to protect geographical indications， some local specialty products took the initiative to seek the protection of geographical indications， such as "Yantai Ping Guo"， etc. However， due to the late start of geographical indication protection in China and the difficulty of geographical indication registration， many local specialty products still fail to apply for geographical indication protection. Although these names do not obtain rights through examination and approval， they indicate that the commodity comes from a particular region. The specific quality， reputation， or other features of the item are mainly determined by the natural or human factors of the region[4]. They play the role of geographical indications.

When the commodity names with geographical features are recognized as generic names， the geographical elements are fully considered. The features and quality of the products referred to by these names are still explicitly related to the local geographical environment. In the case of "Yi Hong Cha"， as an unregistered geographical indication， the court first determined it as a generic name and then as a geographical indication. On the one hand， the judicial practice is not aware of the conflict between geographical indications and generic names. On the other hand， it shows that these geographical names determined as generic names play the role of geographical indications. Some people believe that as long as the value of a product comes from the natural quality given by a specific region， and the product's name indicates the geographical name of the place， the product's name must not be generic[5]. Some products with local features may not be registered as geographical indications for various reasons. Still， their role as geographical indications cannot be denied， and the possibility that they can be registered as geographical indications in the future cannot be ruled out. After the geographical names are determined as generic names， the antagonism between generic names and geographical indications makes it very difficult to reverse generic names into geographical indications by international practice. Although there are also examples of changing generic names into geographical indications for protection in some European countries， such as the Feta case， this is based on the determination that Feta still has the role of representation of origin， and the process is very tortuous. Judging from China's judicial practice， this reversal condition is currently not established. Even if the name can indicate the place of origin， it will still be recognized as a generic name in China. Therefore， it is a waste of China's rich resources of geographical indications to judge geographical names that have not yet been recognized by law but have already played the role of geographical indications in practice as generic names.

In addition， the generic name is a kind of public resource， and the restriction on the origin of the generic name is contrary to the commonality of the generic name. Even if the place of origin of the generic name can be restricted， if a producer outside the local place of production uses the generic name， it will be difficult for producers to defend their rights within the fixed place of production withinfixed. Moreover， even if the production area is limited， the scope of the production area may be different from the scope identified by the place name. Therefore， there will be disputes about whether the generic name can be used in the adjacent production area. Not to mention the name is no longer a mark of the origin of the place of production; it has become the name of a particularcategory of goods. As long as products produced in other regions have the same features as a specific type of commodity indicated by the name， the name can be used in theory.

1.2 The Public Use of Generic Names Harms the Interests of Consumers and Producers and Makes It Difficult to Guarantee the Reputation of Geographical Names

From the literal perspective of geographical indications alone， the composition of geographical indications is a combination of geographical names and generic product names. The protection of geographical indications is uniquethere. Their products have distinctive features， such as specific quality and reputation or other features， which are closely related to the natural or human factors of the place. The importance and quality of the products carried in area names are the basis for protecting geographical indications. For the registered geographical indications， the court's statement that the standard for the use of geographical indications is too high. To protect the public interest， local producers should not be deprived of the proper use of geographical names. This statement completely deviates from the original intention of geographical indication protection. Products registered as geographical indications naturally have distinctive quality and reputation. Take "Ku'erle Xiang Li" as an example， it has been known for its excellent quality since ancient times. This superb quality has contributed to the formation of its goodwill and attracts consumers to buy. It is precise because the natural and human factors of the place of origin are closely related to this excellent quality that it can obtain the protection of geographical indications. And this kind of superior quality requires effort to maintain. Therefore， when the geographical indication is approved for use， it must meet certain quality standards and requirements. If local producers fail to meet the required quality standards but use the words "Ku'erle Xiang Li"， the uneven quality of the products will cause consumers to lose their trust graduallyOn the other hand， to a certain extent， local producers use "Ku'erle Xiang Li" not simply to indicate the place of origin. Instead， it is to make use of the existing reputation of Ku'erle Xiang Li and make consumers believe that they have the same quality as geographical indication products and then purchase them. In the "Zhoushan Dai Yu" case， which is similar to this one， the court held that the combination of "Zhoushan" and "Dai Yu" constitutes a geographical indication in the trademark law. Therefore， the use of "Zhoushan Dai Yu" does not belong to place names or generic commodity names but constitutes the use of geographical indications. It wants to express not only the origin of the hairtail， but also its characteristics itsbecause it comes from a specific place of production. If it is only to indicate the place of origin of the product， the "Place of Origin： Zhejiang Zhoushan" marked on the back of the packaging bag with ordinary fonts can serve as an explanation to consumers5. It can be seen that the reputation implied by geographical indications is contained in this fixed name. This is also one of the reasons why geographical indications are protected， and conditions should be set for the use of geographical indications. By judging geographical indications as generic names， artificially lowering the standards of geographical indication products， producers who do not meet the standards can use the name wantonly， which will cause the reputation and quality assurance functions of geographical indications to be almost non-existent. This will undoubtedly increase the difficulty of consumer identification. Over time， consumers are reluctant to buy again， and the reputation of geographical indications will also be affected in the long run. Using this method to protect the rights of local producers to use geographical names is undoubtedly a weakening of the rights of geographical indications.

In the current judicial practice， even if the commodity names that are not registered as geographical indications but have geographical characteristics are judged to be generic names， the type of products they refer to have often distinctive characteristics related to origin. The products referred to by the generic name have certain differences in quality and reputation with the same products in other regions. Local producers combine product names with geographical names instead of creating new trademarks， indicating that there must be a particular reputation in the geographical name， making the product obtain a certain product premium or better sales[6]. Although it has not obtained the protection of geographical indications， no one can deny the reputation carried on the name of its origin and that competitors want to use this reputation to expand sales and increase profits. The determination of the generic name of a product with geographic characteristics enables anyone in any region to use the generic name on the identical product， and there is no unified standard specification. Producers can produce arbitrarily， then it is very likely to appear shoddy， mixed true and false， which does not play a good role in promoting the development of the product， and may gradually disappear local specialties.

There are many reasons for the success of a locally famous and high-quality specialty. Producers use local advantages to produce unique and high-quality products. Consumers are willing to pay for this feature out of trust in product quality and reputation， and producers gain economic benefits. The joint efforts of local producers maintain the excellent reputation of local specialty products. Geographical indications provide a tool and external supervisory power for maintaining this reputation. The determination of the generic name allows producers from all over the country to use it unconditionally. For producers who can guarantee product characteristics and quality in the origin area， the benefits brought by their long-term efforts to maintain product quality and reputation are forced to be shared with others. This is detrimental to the interests of producers. At the same time， the emergence of some undesirable competitors makes it even more challenging to maintain product quality. Products with the indefinite origin， varying levels， and different quality appear on the market， which increases the difficulty of consumers' identification， and ultimately leads to consumers losing trust in the product. The interests of consumers to choose satisfactory products through geographical indications are damaged.

2 The Root Cause of Confusion： the Ignorance of Geographical Significance in the Determination of Generic Names

Compared with the determination of other generic names， the uniqueness of the decision of the generic name of goods with geographical features lies in the "regionality". However， there are no specific provisions on the geographical features in determining the generic name in the context of trademark law. Therefore， the court often has a one-sided understanding of the "regionality" and does not consider the geographical significance. According to international standards， the so-called "geographical significance" generally refers to whether a name can play the role of identifying the connection with the place of origin. This is the basis for judging whether the name is a geographical indication or a generic name. Therefore， for the determination of such generic names， as long as they are still able to convey the source of origin in the consumer's perception， they cannot be recognized as generic names. The generic names cannot convey the source of origin and restrict the origin. The conflict between generic names and geographic significance in China's judicial practice of judging commodity names with geographic features as generic names has not been fully considered. The court did not believe that the determination of a generic name should be after the loss of its geographic significance. Instead， it used this geographic significance as a tool to misapply the criteria for determining a generic name. On the one hand， this situation is caused by the imperfection of the relevant laws and regulations on determining generic names in China. On the other hand， the court did not fully grasp the judgment conditions of generic names.

2.1 The Current Law's Determination of Generic Names Lacks Consideration of Geographical Significance

At present， in China's judicial practice， the recognized standards of generic names are mainly carried out by Article 7 of the Notice of the Supreme People's Court on Issuing the Opinions on Several Issues Concerning the Trial of Administrative Cases Involving the Authorization and Determination of Trademark Rights in 2010 and Article 10 of the Provisions of the Supreme People's Court on Several Issues concerning the Trial of Administrative Cases involving Trademark Authorization and Confirmation （hereinafter referred to as the Provisions） issued in 2017 and amended in 2020. The Provisions divide generic names into statutory commodity names and generic names established by usage. Statutory commodity generic names include three cases： generic names stipulated by law， generic names specified by national standards， and generic names stipulated by industry standards. In practice， it is not difficult to judge the statutory generic names， but when judging the generic names established by usage， each court has great discretion and different judgment standards. The Provisions define generic names established by use as where the relevant public generally believes that a particular name is able to refer to a category of goods. Usually， "relevant public" refers to the whole country. Still， a title of a fixed commodity on a relevant market formed due to historical traditions， customs， geographical environment， and other reasons that are commonly used on the relevant market may be recognized as a generic name by the people's court. This is also the basis for the court to determine the generic names of commodities with geographical characteristics. There are two main reasons for the judgment of geographical names and even geographical indications as generic names. On the one hand， it is because this provision is made under the background of trademark protection. It is only concerned about the conflict between generic names and trademarks. Still， it does not consider geographical indications， which makes the boundaries between geographical names， including geographical indications and generic names， more blurred. On the other hand， because the provisions are relatively general， there is no clear definition of "a fixed relevant market" and "relevant public"， which gives the court greater discretion. The main factors considered by the court when determining the generic names established by usage include the following aspects： media reports， records of relevant historical or official data， opinions of industry personnel， the perceptions of relevant consumers， etc. This determination method is reasonable， but the Provisions do not clearly specify the geographical scope to be considered， so it is not applicable when determining the generic name of a commodity with geographic features. The complexity of deciding a generic term with geographic features is that it involves the determination of the commonality of the name itself and notdecision involves the connection and determination of the geographical significance related to it. This requires the establishment of an explicit criterion， that is， clearly indicating the influence of geographical sense on the determination of generic names.

2.2 Misunderstanding of Names with Geographical Significant in Judicial Precedents

Although the Provisions make it clear that the commonality of the generic name may not be considered nationwide under some special conditions， and only needs to be within the scope of the "relevant market"， it does not give specific rules for determining this. Some unreasonable judgments of the generic names of commodities with geographical features appear in judicial practice precisebecause of the insufficient understanding of the definition of generic names and the judgment conditions. In essence， the court did not realize the particularity of "geographical significance" in the determination of generic names during the trial， which can be analyzed explicitly from the three aspects of "distinctiveness" "relevant market" and "commodity category".

2.2.1 "Distinctiveness" Can be Reflected by Identifying the Place of Origin

In the trademark law， the nature and determination of generic names are essentially different from geographical indications. The reason why generic names are not protected in the trademark law is that they do not have distinctiveness and cannot indicate the origin of goods or services. This kind of origin generally refers to the provider of the goods or services; that is， the generic name cannot distinguish the specific operators of the goods but can only determine the categories of the goods. In the "Liuting Zhu Ti" case， the court held that its distinctiveness as a registered trademark was weak. When "Liuting Zhu Ti" was mentioned， the first thing the relevant public thought of was that it was a special snack in Chengyang District， Qingdao. Moreover， the court demonstrated that from the perspective of historical tradition， government organs， media， relevant public and catering practitioners， "Liuting Zhu Ti" is a very local and representative food in Qingdao and thus recognized "Liuting Zhu Ti" as a generic name established by usage6. This is based entirely on the conditions of the trademark law. For geographical indications it does not have the function of distinguishing product operators but can only determine the product products place of origin. This does not mean that there is no distinctiveness. Therefore， when judging whether a geographical indication is a generic name， it is not possible to directly apply the rules for distinguishing the source of the operator but to see whether the place of origin can be determined. Similarly， when judging the generic name of a commodity with geographic features， the judgment of its distinctiveness should not be limited to whether it can determine the supplier of the commodity. Still， it should be extended to whether it has the meaning of indicating the place of origin. The inability to associate it with the business of origin means that the name has no distinctiveness. For those that can show the place of origin and are related to features such as reputation and quality， and can play a role in distinguishing the place of origin， it should be considered as have distinctiveness.

2.2.2 "Relevant Market" Is Not Equivalent to "Specific Place of Origin"

Whether the determination of generic names should be considered on a national scale or from the relevant geographical scope has always been a hot issue of controversy， and it is also one of the key issues in the determination of regional generic names. To judge whether it is a generic name by "whether it is commonly used in the relevant market"， it is necessary to clarify the definition of "fixed relevant market" and the difference between it and the "specific place of production". In the "Yi Hong Cha" case， the court held that Yi Hong Cha is a black tea produced in Yidu， Enshi， Hefeng， Changyang， Wufeng and other regions and has formed a relatively fixed relevant market due to historical traditions， local customs， geographical environment， and other reasons. "Yi Hong Cha" has become a common black tea commodity name in the relevant market. Therefore， "Yi Hong" is the generic name for black tea products in a specific place of production， and it is a generic name established by usage7. However， "a specific place of production" is not the same as a "fixed relevant market". The generic names with geographic features determined by the courts are usually a combination of "place name + generic name". This includes a generic name， but with the identification of the source of origin added to the front， termit is a unique local product in the production area， which must be a generic name in the production area. However， this does not mean that the scope of circulation of the product is only in this place of origin. When determining the generic name， whether the place name can still identify the place of origin should be an important factor to be considered. If it is judged to be a generic name， the source of origin must be restricted， indicating that the name still has geographic significance from the consumer's point of view. This also means that the relevant market is not fixed or that the relevant market is not limited to the area included in its geographic name. Its broadness should be considered nationwide.

2.2.3 Geographical Differences Cannot be Used as a Condition for Distinguishing "Categories" of Commodities

The commonality of the generic name is that the reference relationship of the generic name of the commodity cannot distinguish the source of the commodity but can only indicate one category of the commodity from another[7]. As for whether a particular name can refer to a category of products， whether the category judgment criterion includes geographical area is also the key to the judgment of such generic names. When the court made a judgment on a generic name with geographic features， it narrowed the scope of the judgment of the generic name to the region. And when considering product category differences， the region is one of the conditions. The court only considers whether a product in this region is unique and not considering whether this feature can be a category of a product alone. Geographical indication products are generally quite different from products of the same category produced in other regions due to their characteristics. But this is not enough to make the characteristics of its place of origin disappear， nor can it be divided into a single category of commodities. Taking "Qinzhou Huang" as an example， when the court judged it as a generic name， it "can reflect the fundamental difference between one type of millet and another type of millet". So， it should mean that "Qinzhou Huang" can refer to a category of millet alone. There are significant differences between this type of millet and other types of millet. This difference is not reflected in origin， but in the characteristics of the millet itself. When consumers see the three words "Qinzhou Huang"， what they can think of is not the geographical significance contained in it， nor the guarantee of the reputation and quality brought to this millet by the place of origin. Instead， consumers simply think that this is just a category of millet that has its characteristics and can be distinguished from other millet. Its features have nothing to do with the place of origin. When judging the generic name of commodities with geographical features， even if it is recognized that it is common in a certain region， the name that still has the function of indicating the origin cannot be regarded as the name that can refer to a category of products.

3 Ways to Perfecting the Determination of Generic Names of Commodities with Geographical Features

To avoid conflicts between the determination of generic names and the protection of geographical indications， to further improve the level of security of geographical indications in China， and to standardize the market order， it is essential to establish a set of generic name determination standards that are connected with the protection of geographical indications. This requires the country to issue relevant legal documents to clarify the determination criteria and requires the court to connect it with the protection of geographical indications when determining the generic names of commodities with geographical features in judicial practice， avoiding one-sided understanding of protecting the public interest.

3.1 Regarding Whether It Has Geographical Significance as One of the Criteria for Determining Generic Names

When judging the generic name of a commodity with geographical features， it should be conducted in the coordination of trademark law protection and geographical indication protection. There have been some legal documents in China trying to define and set conditions for generic names in geographical indication protection. Article 1.16 of the Economic and Trade Agreement between The Government of The United States of America and The Government of The People's Republic of China stipulates that the factors to be considered in the determination of the generic names related to geographical indications include whether the relevant goods are imported into China from areas other than the application or request， and will not mislead the public in terms of the origin of the goods and whether these imported goods are named after that name. In China's Guidelines for the Determination of Generic Names in the Protection of Geographical Indications （Draft for Comment） （hereinafter referred to as Guidelines for Determination）， the generic names involved in the protection of geographical indications are defined as although it is related to the place， region or country where a product was originally produced or sold， it has become a generic name for a product in China. This name is used in China to refer to specific production methods， specific specifications， specific quality， specific types， or specific categories of products. Although the Guidelines for Determination have not been formally issued， it also shows that China has a clear trend at the legislative level to clarify the issue of generic names involved in the protection of geographical indications. If the criteria for determining generic names in the trademark law are not defined， there will be conflicts with the relevant provisions of geographical indications.

Therefore， to further clarify the criteria for determining the generic names of commodities with geographic features， the consideration of geographical factors in the determination of generic names should be added to the trademark law system， and the definition and determination criteria of generic names in the geographical indication system should be improved. In the trademark law system， the conditions for identifying generic names should be revised in the Trademark Examination and Trial Guide and Article 10 of the Supreme People's Court Provisions on Several Issues concerning the Trial of Administrative Cases involving administrative cases Trademark Authorization and Confirmation. Add "A name with geographical features， which is related to the place， region， or country where the product was originally produced or sold， but has lost its role of indicating the place of origin and has become a common name for a category of products， the people's court may recognize it as a generic name". Whether it has geographical significance is one of the generic name determining standards. A name that can indicate the origin and the quality and reputation of the goods referred to is derived from a place of origin shall not be recognized as a generic name. At the same time， in the Trademark Examination and Trial Guide， the generic name "does not have the function of distinguishing the goods or services of different producers and operators， and does not have distinctiveness" should be expanded to "does not have the function of distinguishing goods or services from different producers and operators and place of origin， and does not have distinctiveness". Special clauses on generic names should be added to the Provisions on the Protection of Geographical Indication Products in the geographical indication protection system. Although the Guidelines for Determination define the generic name in the protection of geographical indications， there are still some defects. It is necessary to clarify that "it no longer has the function of indicating the place of origin" and to promote the implementation of the Guidelines for Determination as soon as possible. Coordinate the determination of generic names in the protection of trademark law with the protection of geographical indications. When determining the generic name of a commodity with geographic features， it is first necessary to consider whether it can convey to consumers the place of origin and the product characteristics associated with the place of production. If so， the name must not be generic. If not， it will be judged according to the existing generic name judgment standards.

3.2 Taking into Account the Interests of Producers， Consumers， and Public Interests

Generic names belong to the public domain and should be used by the public unconditionally; the trademark law does not prohibit third parties from using the generic names properly[8]. The place of origin restriction is added before using the generic name， which is a misunderstanding of the generic name because it still relies on the geographical name to play a restrictive role. And the geographical name can still indicate the source of goods. The producers of other origins cannot use the generic name; it is still only available to specific subjects. This in itself contradicts the protection of the public interest. In cases related to generic names with geographical features， the court judged these names as generic names mainly due to the public attributes of the names formed by combining these geographical names with the generic product names. Therefore， the court needs to prevent it from being registered as a trademark and being monopolized for use. Such a generic name with a geographical nature cannot exclude its use of it by local people， let alone being dominated by a company. This is undoubtedly harm to the public interest. To avoid that， the court chose to judge the disputed name as a generic name to prevent the monopoly of rights brought about by registered trademarks. However， considering from the nature of commodity names with geographical features and the theory of generic terms， it is not a once and for all solution to judge them as generic names.

As the basic principle of intellectual property law， the focus of balance of interests lies in the balance between the rights of intellectual property owners and the public interests of society and the public interests on this basis[9]. The principle of balance of interests aims to seek a balance point in protection， which can ensure the premise of the balance of interests， that is， protect private rights， and protect the public interest[10]. The legislative purpose of China's Trademark Law is to "urge producers and dealers to guarantee the quality of goods and services， maintaining the reputation of trademarks， protecting the interests of consumers， producers and dealers， and promoting the development of the socialist market economy". This should also be used as a basis when determining the generic name of a commodity with geographical features， to take into account the interests of all parties involved. The "appropriateness and reasonableness" required by the principle of balance of interests applies not only to the protection of the interests of intellectual property owners but also to the protection of public interests so that a delicate balance can be formed. There is no hierarchy between the interests of all parties. The principle of equality must be adhered to， and all parties' interests should be equally protected. When recognizing a generic name with geographical characteristics， since the disputed name is already registered as a trademark or is about to be registered， the court only focused on the conflict between the trademark owner and the public interest but ignored the damage to the interests of consumers and local producers after the determination of the generic name. Therefore， in determining such generic names， ultimately pushing the resources that should be protected into the public domain should not be regarded as a solution. Instead， it is necessary first to clarify the legal interests involved in local famous and high-quality specialty products that need to be protected， explain the interests of multiple parties involved in the disputed name. The interests of consumers in identifying satisfying products through geographical names， the economic interests of local producers who maintain product quality， and the public interests of society should all be considered. Consider the potential harm that a generic name determination would cause to the interests of consumers and local producers who can maintain product quality. At the same time， take into account the protection of public interests and strive to maximize the overall welfare of the society. Possessing the characteristics of local famous and high-quality products to the greatest extent to protect China's geographical indication resources from being wasted.

4 Conclusions

From the perspective of protecting China's rich resources of local famous and unique products， it is unreasonable to arbitrarily judge the names of commodities with geographical features as generic names. This situation is often caused by the vagueness of the criteria for determining generic names. Clarifying the judgment standard of the generic name of commodities with geographical features plays an essential role in protecting geographical indications and local characteristic products in China theto avoid attribute conflict and "Tragedy of the Commons". At the same time， it can protect the interests of producers and consumers and prevent consumers from misidentifying and making wrong purchases. The determination of generic geographical names should be unified standards. Whether they have lost the function of indicating the place of origin is one of the criteria for determining the generic names of commodities with geographical features. If they can still meantell the place of origin， they cannot be judged as generic names. Using this as the criterion for determining generic generic geographical names and dividing the boundaries between generic names and geographical indications can better maintain market order and protect the interests of all parties in the market.

References：

[1] ZHANG J， LU J H. Attributes and proper use of regional names： taking the "Qinzhou Huang" case as the object of investigation[J]. China Trademark， 2017 （11）： 14-18.

[2] Wang X B. On the legal protection of geographical indications[M]. Beijing： China Renmin University Press， 2006：154.

[3] Defining a name's origin： the case of feta[EB/OL]. （2016-02-25） [2021-10-20]. https：//www.wipo.int/ipadvantage/en/details.jsp？id=5578.

[4] ZHANG J， LU J H. On the judicial cognizance for marks with geographical characteristics： analysis of trademarks， geographical indications， unique names and generic names[J]. Law Science Magazine， 2019， 40（2）： 94-101.

[5] MENG Y， ZHU C S. Research on geo markers—focusing on geographical indications[J]. Xiamen University Law Review， 2003（2）： 60-119.

[6] HU C F. The existence logic and legal protection of China's unregistered geographical indications[J]. Theory Monthly， 2021（6）： 116-124.

[7] LI R. Reflection and reconstruction of the judicial identification standard of generic terms[J]. Electronics Intellectual Property， 2020（6）： 25-36.

[8] SONG X Z. Independent standards for the identification of generic names in the protection of geographical indications[J]. Intellectual Property， 2021（7）： 61-70.

[9] FENG X Q. The theory of balance of interests： theoretical basis of intellectual property law[J]. Intellectual Property，2003（6）： 16-19.

[10] FENG X Q. The value structure of intellectual property law： a study on the interest balance mechanism of intellectual property law[J]. China Legal Science， 2007（1）： 67-77.

具有地域性特點(diǎn)的商品通用名稱判定：困惑及出路

孫夢菲，宋曉亭

（同濟(jì)大學(xué) 上海國際知識產(chǎn)權(quán)學(xué)院，上海 200092）

摘 ? ?要：具有地域性特點(diǎn)的商品的通用名稱判定問題不僅僅關(guān)系到商標(biāo)保護(hù)，與地理標(biāo)志保護(hù)也密切相關(guān)。而判定標(biāo)準(zhǔn)的模糊導(dǎo)致在司法實(shí)踐中，對于具有地域性特點(diǎn)商品的通用名稱進(jìn)行判定時往往會忽視地理標(biāo)志與通用名稱之間的沖突，不加區(qū)分地將地理標(biāo)志或未注冊但發(fā)揮地理標(biāo)志作用的名稱判定為通用名稱。這種判定非但不利于地理標(biāo)志的保護(hù)，也會損害生產(chǎn)者及消費(fèi)者利益，導(dǎo)致市場競爭秩序的混亂。明確具有地域性特點(diǎn)的商品通用名稱的判定標(biāo)準(zhǔn)才能夠更好地劃分清楚通用名稱與地理標(biāo)志的界限，更好地維護(hù)市場秩序，保護(hù)市場各方主體利益。在判定具有地域性特點(diǎn)商品的通用名稱時，應(yīng)當(dāng)將是否具有地理意義作為判定的標(biāo)準(zhǔn)之一，倘若其仍能指示產(chǎn)地來源則不能將其判定為通用名稱。

關(guān)鍵詞：地域性;通用名稱;地理標(biāo)志