Intangible cultural heritage is a public resource, and at present, there are still many gaps in the protection of intellectual property rights in intangible cultural heritage, and the endless acts of trademark squatting affect the creative transformation and innovative development of intangible cultural heritage, and there is still a long way to go to improve relevant legislative amendments.
With the change of the times, Chaoshan Ying song and dance from the square to the stage. Courtesy of respondents
The Spring Festival is approaching, and the Sound of Gongs and Drums Carrying Ancient Cultural Memories, which means that the English song and dance performance of retiring the old and welcoming the new, has opened in Chaoshan Land. The heroic posture and heroic steps of the body, and the grandeur of the English song performance array are shocking. The yingge hammer wielded in the hands of Chaoshan youth constantly strikes the hearts of citizens and tourists, conveying the beautiful wishes of the local people for thousands of years of peace and auspiciousness.
Not long ago, a "trademark defense war" on Yingge quietly came to an end: the Guangdong Provincial Intangible Cultural Heritage Legal Aid Lawyers Group recently disclosed that after the application of Li Junhao, a representative inheritor of Yingge at the municipal level, the State Intellectual Property Office made a formal ruling last year on the application for the invalidation of the No. 16999507 "Yingge YingGe" trademark, declaring the "Yingge YingGe" trademark registered by Zheng Moumou in Shantou City, Guangdong Province, invalid.
In recent years, as more and more intangible cultural heritage resources have been developed and marketed, intellectual property disputes around intangible cultural heritage have become more prominent.
At the end of 2021, the Outline for the Construction of an Intellectual Property Power and the Annual Promotion Plan for the Implementation of the 14th Five-Year Plan issued by the Office of the Inter-Ministerial Joint Conference on the Implementation of the Intellectual Property Strategy of the State Council put the study of the intellectual property protection system related to intangible cultural heritage on the agenda.
"As the 'double creation' boom continues to heat up, disputes related to intangible cultural heritage intellectual property rights will intensify." Deng Yao, head of the Guangdong Provincial Intangible Cultural Heritage Legal Aid Lawyers Group and an expert on the protection of intangible cultural heritage, believes that intangible cultural heritage is a public resource, and there are still many gaps in the protection of intangible cultural heritage, and the endless trademark squatting behavior affects the creative transformation and innovative development of intangible cultural heritage, and the work of improving relevant legislative amendments still has a long way to go.
Rub non-heritage hot more than 250 trademarks crazy grab "Yingge"
"There is an Ansai waist drum in the north, and a Puning Yingge in the south." In Jieyang Puning folk, the English song that integrates dance, southern fist routine and opera acting has always been regarded as a symbol of promoting righteousness and suppression of evil and auspicious peace, and has been highly respected, and has been passed down for more than 300 years. In 2006, Yingge was approved by the State Council to be included in the first batch of national intangible cultural heritage list.
With the promotion of the short video platform, the imposing Puning Yingge frequently appeared on the hot search. After becoming a "new Internet celebrity", the potential business opportunities of Yingge culture were stimulated. An investigation by the Guangdong Provincial Intangible Cultural Heritage Legal Aid Lawyers Group found that it is not uncommon for "Yingge" to be registered as a trademark by individuals or units.
The reporter inquired on the China Trademark Network of the Trademark Office of the State Intellectual Property Office and found that as of press time, there were more than 250 trademark names containing the word "Yingge", of which 34 were trademark registration applications that were exactly the same as the name "Yingge", and there were also many applications for registration in the name of "Yingge".
The registration of these "Yingge" trademarks is not unrelated to the increase in the popularity of intangible cultural heritage. Riding on the two sessions of the "Puning Yingge Cultural Festival" and the selection of Liusha West Street in Puning City as the "Hometown of Chinese Folk Culture and Art" in 2018-2020, the "Yingge" trademark registration application also set off two waves of small climaxes in 2013 and 2019 respectively.
Deng Yao introduced that the above trademark application covers multiple categories from goods to services, including catering, clothing, technology, trade performances, education, etc. Among them, the trademark No. 16999507 "Yingge" approved for registration on July 21, 2016 attracted the attention of the Intangible Cultural Heritage Legal Aid Lawyers Group.
The trademark is classified as Class 41 and can be used in services such as text publishing, organizing performances, and gymnastics training. "The name of the disputed trademark is exactly the same as that of the national intangible cultural heritage list, which means that if any other person or unit uses the word 'Yingge' to engage in relevant services without the permission of the trademark owner, it may be suspected of infringing its exclusive right to use the trademark." He said.
In February last year, Li Junhao formally filed a request for invalidation of the disputed trademark, and the Guangdong Intangible Cultural Heritage Legal Aid Lawyers Group also came to his aid. After seven months of meticulous evidence collection and legal research, the State Intellectual Property Office finally issued a "declaration of invalidation" ruling on the disputed trademark.
Article 11, paragraph 1, item (1) of the Trademark Law of the People's Republic of China stipulates that the sign "only the generic name, graphic and model of the goods" shall not be registered as a trademark. The ruling shows that the trademark "Yingge YingGe" has constituted the above situation. It is worth noting that the ruling also found that "Yingge" is exclusively registered and used by the respondent as a trademark, which is not conducive to the protection and inheritance of Yingge, and is likely to have a negative and negative impact on the public interests such as mainland culture. Up to now, this case has not received the notice and materials of the respondent to file a lawsuit against the ruling.
Today, the China Trademark Network still shows more than 20 successfully registered "Yingge" trademarks of the same name. "We cannot determine whether all of these trademarks are circumstances that should not be registered." Deng Yao said that the above figures are only an objective reflection of the boom in the registration of intangible cultural heritage trademarks, and how to identify and deal with these trademarks still needs further study and discussion by all sectors of society.
Property rights issues on how to prevent the misuse of intangible cultural heritage elements
In the field of intangible cultural heritage, it is not uncommon for trademarks such as "Yingge" to be improperly registered. The reporter searched the relevant legal databases and found that among the 1839 intellectual property dispute judgment documents related to "intangible cultural heritage", trademark ownership and infringement disputes accounted for 1459 articles.
How to use the law to escort the intangible cultural heritage has become a new issue facing the intangible cultural heritage industry. In 2011, the mainland promulgated and implemented the Law of the People's Republic of China on Intangible Cultural Heritage, but the law focuses on the administrative protection of intangible cultural heritage. Existing intellectual property laws, such as the Trademark Law of the People's Republic of China, do not explicitly provide for the protection of intangible cultural heritage.
Market competition depends on the brand, and the core foundation of the brand is the trademark. Deng Yao observed that many intangible cultural heritage skills in the past mainly relied on oral transmission, and producers generally did not have the awareness of registering their own trademarks and brands, "if these trademarks are preemptively registered by others and occupy the market, it will bring great trouble to the inheritance and development of intangible cultural heritage."
Each ethnic group's intangible cultural heritage has its own unique cultural attributes. If these intangible cultural heritage elements are used on improper goods, it will lead to distortion of the inherent connotations of traditional culture.
Under the current legal system, in addition to ordinary trademarks, "geographical indications" are also regarded by many people in the industry as a powerful hand to promote the protection of intangible cultural heritage intellectual property rights.
As the name suggests, "geographical indications" represent the specific region in which the products are produced, so they become a kind of identification that distinguishes the source and reputation of the goods, and can fully reflect the historical and traditional cultural attributes contained in the intangible cultural heritage.
In recent years, many intangible cultural heritage products have applied for the protection of geographical indication products. The reporter inquired on the China National Geographical Indication Product Protection Network, taking the traditional spinning, dyeing and weaving and embroidery projects of the first batch of the National Traditional Craft Revitalization Catalogue as an example, nearly 20% of the corresponding products of the projects have been protected, including Yunjin, Su embroidery, Shu embroidery, Xiangyun yarn, etc.
Since 2018, Jiaoling County, Meizhou City, has launched an application for the protection of geographical indication certification trademarks for the provincial intangible cultural heritage representative project "Jiaoling III and No. 3". "Banana Ridge No. 3 & D." is made from pork liver, pork and pork powder sausage porridge, which is a representative local delicacy. The legend of Lin Zhaotang inventing the "three and the first" in the Qing Dynasty added a bit of reverence to the cuisine.
However, some experts pointed out that under the existing trademark legal system, geographical indications mainly consider natural factors, and such intangible cultural heritage products with geographical names focus on human factors, and it is not easy to obtain geographical indication trademark protection. After several years of active application, the geographical indication certification trademark of "Jiaoling III and No. 3" has still not been approved.
Explore countermeasures to provide legal aid services to non-hereditary inheritors
Whether it is a trademark or a geographical indication, the true subject of non-genetic inheritance and protection is still a person. In 2021, the trademark rights protection actions of "Hu Spicy Soup in Xiaoyao Town" in Henan and "Tongguan Meat Sandwich Steamed Buns" in Shaanxi Province caused a social uproar due to the extensive collection of "membership fees" from merchants by the exposed registrants, and finally the relevant local departments intervened in the investigation and stopped the rights protection actions.
Some legal persons believe that since the Xiaoyao Town Hu Spicy Soup Association legally owns the "Xiaoyao Town" trademark, there is nothing wrong with developing characteristic industries through trademark rights protection, but the trademark system still needs to be properly used to help the protection of intangible cultural heritage; the government should also come forward to clarify the rights relationship of intangible cultural heritage, so as to avoid the development of regional characteristic economic and cultural industries due to disorderly competition.
Mrs. Sin's beliefs and customs are representative projects of national intangible cultural heritage. As early as 2005, a controversial trademark named "Mrs. Sin" attracted widespread attention in the society.
In 2004, the disputed trademark "Mrs. Sin Tai" was approved for registration and allowed to be used in Class 41 goods such as rice, flour, cereal, coffee, tea, etc. After repeated negotiations with the Trademark Review and Adjudication Board of Dianbai County, the People's Government of Dianbai County finally determined that the trademark would damage the "Spirit of Mrs. Sin Lady", the common cultural property of the Chinese nation, and ruled that the disputed trademark was invalid.
"Mainland china has only 10 years of legislation on intangible cultural heritage." Deng Yao believes that the fact that these disputed trademarks related to intangible cultural heritage can be registered reflects the lack of understanding of intangible cultural heritage by the examiners of the trademark authorities and the lack of communication with the intangible cultural heritage authorities.
Deng Yao believes that although any unit or individual can apply for invalidation of the disputed trademark, if the relevant local government departments fully consider the issue of intangible cultural heritage trademarks when building cultural brands, or can avoid the risks that may arise in the future, "Dianbai County's handling of the 'Mrs. Xian' trademark is a good example."
In August 2021, the General Office of the CPC Central Committee and the General Office of the State Council issued the Opinions on Further Strengthening the Protection of Intangible Cultural Heritage, which put forward clear requirements for improving the legislation of intangible cultural heritage and comprehensively using various means such as trademark rights and geographical indications to strengthen the protection of intangible cultural heritage intellectual property rights, and strengthening the education of intangible cultural heritage law popularization was also put on the agenda.
In terms of improving the legal literacy of non-hereditary inheritors, Guangdong has launched many pioneering moves in recent years. In 2018, the Guangdong Intangible Cultural Heritage Protection Center signed the Cooperation Framework Agreement with the Guangdong Provincial Legal Aid Foundation to establish the Guangdong Intangible Cultural Heritage Legal Protection Assistance Fund, and the Guangdong Provincial Legal Aid Foundation also formally established the Guangdong Intangible Cultural Heritage Legal Aid Lawyer Group to provide legal aid and other services for non-genetic inheritance groups, leading the country.
Nowadays, with the help of the Intangible Cultural Heritage Legal Aid Lawyer Group, Li Junhao has designed and successfully registered his own trademark of Yingge Culture Communication Co., Ltd., taking the first step for the creation of yingge cultural brand and the research and development of cultural and creative products.
"For the majority of non-hereditary heirs in rural areas, they still lack the resources to participate in brand building." Deng Yao expects that the competent departments of intangible cultural heritage in various localities can work with intellectual property departments, scholars and professionals to explore measures for the protection of intangible cultural heritage according to local conditions, so as to truly promote the creative transformation and innovative development of intangible cultural heritage.
Source: Nanfang Daily
Reporter: Yang Yi Intern: Chen Wenting
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