Let business leaders tell you the five functions of trademarks.

A trademark is a symbol that distinguishes goods or sources. Trademark is protected by law because of its special function.

As the foundation of trademark, the function of trademark is of great significance to the legal positioning of trademark and the definition of trademark right. Therefore, the understanding of trademark function is the key to accurately understand and grasp the trademark legal system.

The function of trademark refers to the attributes and significance of trademark as an organic part of the social system of commodity production, trading and consumption.

J. ThomasMcCarthy, a famous American scholar, believes that, on the whole, trademarks play four functions worthy of court protection:

1, to identify the seller's goods and distinguish them from those sold by other sellers;

2. It means that all goods using the trademark come from a single or even anonymous source, or are controlled by a single or even anonymous source;

3. It means that all goods using the trademark have the same quality level;

4. As the main tool for advertising or selling this commodity.

At the same time, McCarthy also pointed out that in addition to the above four functions, it must also be remembered that trademarks are also an objective symbol of the goodwill that enterprises have established.

Trademark is a kind of symbol, but not all symbols have property meaning, and symbols with unique functions can become trademarks with property meaning.

The fundamental reason why a trademark becomes property lies in its unique function. In this sense, trademark protection is to ensure the normal realization of trademark functions and protect them from illegal use or obstruction.

First, distinguish the source functions.

Distinguishing the source function is the most basic and original function of a trademark.

The function of distinguishing sources means that the relevant public can distinguish the source of goods they identify from other sources according to a specific trademark.

Signs may have different functions. Only marks with the function of distinguishing the source of goods belong to trademarks. Trademarks guide consumers like lighthouses? Card shopping? Find what you need.

First of all, the function of distinguishing the source of a trademark includes two meanings: trademark recognition and distinction.

According to the definition of trademark in American trademark law, a trademark is a word, slogan, picture or other symbol used to identify and distinguish goods.

Identification determines that the function of trademark is to identify the source of goods, that is, the relevant public can associate goods with their sources according to trademarks;

Distinguishability determines that trademarks should also have the function of distinguishing the goods of an enterprise from those of other enterprises, that is, the relevant public can distinguish the source of the goods they identify from other sources according to a particular trademark.

The identification and differentiation of trademarks are the basic guarantee of the original functions of trademarks, and the identification of trademarks is the premise of their differentiation, which has legal significance.

Therefore, the protection of trademark rights is mainly to protect the function of distinguishing sources of trademarks, which infringes on one of the constituent elements of trademark rights, that is, whether it may cause confusion and misunderstanding among consumers.

Secondly, the distinguishing source function of trademarks also involves two theories: strict source theory and anonymous source theory.

Strict source theory emphasizes that the source of goods must come from the specific producers of goods.

This theory soon became incompatible with the development of social economy. Because not only manufacturers use trademarks, retailers and importers may also use their own trademarks, so the source of trademark identification has exceeded the scope of manufacturers.

At the same time, under the early strict source theory, trademark licensing is impossible, because it means that if a trademark can be licensed separately from commerce, it is equivalent to using the trademark on other commercial goods, which will harm the interests of consumers and be inconsistent with the function of the trademark.

Adhering to the strict source theory will reduce the property value of trademark rights, and the emergence and development of trademark rights transfer and licensing practice forces people to seek new theories to support the legitimacy of licensing or transferring trademark rights from business.

Anonymous source theory is a breakthrough to strict source theory. With the development of social economy and the improvement of traffic conditions, many commodity circulation links have been formed between commodity producers and final consumers, which makes the distance between producers and consumers farther and farther. Correspondingly, it is increasingly difficult for consumers to understand the producers of products.

In this case, people's cognition of the function of distinguishing the source of trademarks has also changed. Consumers are beginning to realize that even if a specific trademark cannot indicate the specific manufacturer of goods, as long as the trademark can guarantee the same source of related goods, the distinguishing function of trademarks can be realized. This is the theory of anonymous sources.

In modern society, the role of trademark recognition is particularly important. At present, the economy is prosperous and there are many kinds of goods. The market is full of many identical or similar goods or services, which come from different manufacturers and operators. The production conditions, production technology, product or service quality and management level of various manufacturers are uneven, and the prices will be different. If enterprises want to attract consumers' attention in the fierce market competition, so that they can choose their own products and win the largest number of consumers to the maximum extent, they must use eye-catching trademarks on their products to make them more easily recognized by consumers.

From the consumer's point of view, consumers can buy the goods they want with the trademarks they know. As a kind of connection, trademarks connect goods with consumers.

For example,? Jiaduobao? And then what? Wang Laoji? Herbal tea, all belong to the same herbal tea beverage, all claim to be the most authentic formula, and consumers can't tell the taste of herbal tea. The existence of trademarks can make consumers avoid confusion, so as to buy the goods they need according to their own preferences, and also save the economic cost of making purchase decisions.

From the producer's point of view, the differentiated source function of trademarks can enable producers to establish direct contact with consumers beyond the shoulders of intermediate retailers, thus establishing credibility in the minds of consumers and making resale possible. This urges producers to improve and maintain product quality, expand market share and maximize benefits.

China's Trademark Law and its implementing regulations also reflect the protection of the function of distinguishing the source of trademarks.

According to Article 30 of the Trademark Law of China:

Where the trademark applied for registration does not conform to the relevant provisions of this Law or is identical with or similar to a trademark that has been registered or preliminarily approved by others on the same or similar goods, the Trademark Office shall reject the application and shall not make an announcement.

Paragraph 2 of Article 3 1 of the Regulations for the Implementation of the Trademark Law stipulates:

Where a registered trademark is transferred, if the trademark registrant fails to transfer the same or similar trademarks registered on the same or similar goods together, the Trademark Office shall notify him to make corrections within a time limit; If it fails to make corrections within the time limit, it shall be deemed as giving up the application for transferring the registered trademark, and the Trademark Office shall notify the applicant in writing.

From the above provisions, it is not difficult to see that China's Trademark Law strictly guarantees that identical or similar trademarks on the same or similar goods belong to the same subject, both in application procedures and subsequent management procedures.

However, with the development of the times, some countries think that the same or similar trademarks on the same or similar goods belong to different subjects, which does not necessarily cause confusion and misunderstanding among consumers, nor does it necessarily weaken the function of distinguishing sources of trademarks.

For example, the existing trademark depository agreement is a breakthrough in the function of distinguishing trademark sources.

Second, the quality assurance function

In 1930s, a brand-new concept, namely quality assurance function, appeared on the basis of the function of distinguishing source of trademark. The role of quality assurance is the necessity of the development of commodity economy.

Quality assurance function means that goods or services using the same trademark have the same quality.

According to this theory, a trademark not only indicates the source of the manufacturer or distributor of goods, but also indicates a certain quality level. Trademarks not only convey information about the source of goods, but also convey information about the quality of goods to relevant consumers.

Trademarks not only distinguish the same goods provided by different manufacturers, but also distinguish the same goods of different quality provided by the same manufacturer.

For example, P&G uses different brands to implement differentiated marketing strategies:

Floating, supple, smooth and supple.

Pan Ting nourishes and nourishes.

Head & Shoulders (Head &; Shoulder) to remove dandruff.

Clairol plant essence.

Sassoon stereotype

It should be noted that the quality assurance function of trademarks does not mean that trademarks always mean? Tall? High-quality goods or services, but only the quality level of all goods or services supplied under trademarks will remain consistent and predictable, that is, the quality assurance function of trademarks is only to ensure the identity of commodity quality, not the high quality of commodities.

Accurately speaking, trademarks do not guarantee the quality of goods, but only convey quality control information. The quality of goods with the same trademark is controlled by a single enterprise.

Trademarks are designed to enable the public to identify those products that they have experience in and understand their quality characteristics. This ensures that the next time they buy goods with the same brand, they will also have the same characteristics. This function means that the trademark owner does not necessarily actually participate in the production of goods, but only needs to control the quality of goods.

For consumers, what they care about is not who produces the goods with the same trademark, but the quality of the goods.

For example, when we buy an Apple iPhone, we can buy it from Apple's flagship store or JD.COM Mall. We don't care about the origin of the Apple iPhone.

We all know that Foxconn is the OEM of Apple's iPhone. Foxconn has many factories, mainly in Shenzhen, Chengdu and Zhengzhou.

As can be seen from the initials of the iPhone serial number, Shenzhen starts with C, Chengdu starts with D, and Zhengzhou starts with F.

The fact is that when we buy a mobile phone, we often ignore the origin of the mobile phone, but care about the quality of the mobile phone and the trademark it uses? Apple graphics card? .

The theory of quality assurance function provides a legal basis for the separation of trademark right from business transfer and license. In order to maintain consumers' expectations for the quality of branded goods, the Trademark Law stipulates special restrictions on the transfer and licensing of trademarks.

For trademark transfer, Article 42 of China's Trademark Law (1) stipulates that:

Where a registered trademark is assigned, the assignor and the assignee shall sign an assignment agreement and file an application with the Trademark Office. The transferee shall guarantee the quality of the goods using the registered trademark.

Regarding trademark licensing, Article 43 1 of China's Trademark Law stipulates:

A trademark registrant may authorize others to use its registered trademark by signing a trademark license contract. The licensor shall supervise the quality of the goods in which the licensee uses its registered trademark. The licensee shall guarantee the quality of the goods using the registered trademark.

In this sense, the protection of trademark rights by trademark law is to protect the trademark owner's control over the quality of the goods used by the trademark. One of the purposes of trademark law is? Urge producers and operators to ensure the quality of goods and services? .

It is worth mentioning that the infringement of trademark rights is not conditional on the inferior quality of the infringer's goods, because the infringer's behavior makes the trademark owner lose control of the quality of the goods.

Therefore, as long as the production or sale of a commodity is out of the quality control of the trademark owner, the commodity belongs to? Not genuine? ; Others arbitrarily change the goods or their packaging by depriving the trademark owner of the quality control right, which may also constitute infringement of trademark rights.

As a symbol to distinguish the source of goods or services, what is the trademark? Mark? What is the quality of goods or services? Ben. The value source of a trademark lies in the quality of goods or services, and the reputation attached to a trademark is the public's comprehensive evaluation of the quality of goods or services used.

Trademark owners can not maintain or improve the quality of goods, which will inevitably affect the public's consumption choice and evaluation, and their trademarks will eventually be eliminated in the competition.

Third, the advertising function.

The distinguishing source function of trademark makes consumers remember the source of goods, and the quality assurance function of trademark makes consumers have the desire to buy again and tell potential consumers through consumers.

So the trademark itself is an advertisement, called the trademark owner? A silent salesman? (silent salesman)

Trademark is not only a symbol, but also the most effective medium to create goodwill and be accepted by consumers. Trademarks are actually helping to sell goods.

In 1942, American Justice Frank Ford pointed out:

We live in a world of symbols, and choose goods according to symbols. Business logo is a shortcut to sell goods, guiding consumers to choose what they need, or after being induced and persuaded, choose what they think they need. Trademark owners use this psychological tendency of the general public to publicize the attraction of commercial signs in the market through various means, and instill information about goods to potential consumers through it, so that they feel that goods with specific signs are what they need.

Nowadays, advertising usually does not simply introduce the performance of a specific brand, but is devoted to shaping the public image of the trademark, linking the brand with positive images such as vitality, freedom and success, and striving for the recognition and love of consumers, thus achieving the purpose of marketing.

For example, Apple (Apple, iPod, iPhone, iPad, AppleWatch) is not only a product, quality, reputation and trademark, but also represents an image, taste, interest and lifestyle.

Another example is Absolute Vodka, which insists on using standard bottle shapes in print advertisements. Always the same, but always different? Brand advertising has a lasting effect. Because of the originality of the unique bottle-shaped brand symbol, it is loved and accepted by consumers, and the brand image established with it is highly recognized.

Fourth, the symbol recognition function.

When social production develops to a certain stage, people move from low-level material needs to spiritual needs such as taste, identity, status and personality.

Compared with the traditional function of trademark, the appearance of trademark symbol recognition function is the natural result of the increasing psychological consumption demand of people in modern consumer society.

Now people's consumption concept has changed from? Material consumption? Where to? Meaning consumption? With the changes, businesses began to shift their focus from the attributes of products to the categories of value, culture and personality.

Besides having a trademark? Card shopping? In addition to indicative significance, it has also become a medium and bridge for social communication between people.

As howard schultz, CEO of Starbucks, said:

People walk into Starbucks to experience the romance, warmth and enjoyment of coffee.

Besides drinking coffee, people prefer drinking coffee? The third space? .

For producers and operators, the significance of trademark symbol recognition function is mainly reflected in the following two aspects:

1, which enriches the competitive means of production and operation.

2, the added value of the product is improved.

In today's increasingly fierce market competition, due to the increasingly prominent tendency of product homogeneity, many well-known enterprises began to shift their business focus from production to marketing.

The direct production cost of a LV handbag with market price of 1000 yuan is about 1000 yuan, but the brand value it carries often exceeds 9000 yuan.

The reason why a brand can stand out in the market competition and be recognized by the public is not only because it has excellent quality and can meet people's specific material needs, but also because it has high brand culture content and can bring people spiritual enjoyment.

Verb (abbreviation of verb) the function of goodwill accumulation

Consumers recognize brands for shopping, because buying and using these brands will bring material enjoyment and psychological satisfaction.

A trademark is an objective symbol of the established goodwill of an enterprise. Without the distinguishing function of trademarks, it is impossible for consumers to come back and buy products they have used and liked.

If this consumer's satisfaction and love are? Goodwill? Label, then a trademark is a sign that can identify that kind of goodwill.

The symbolic value of symbols and the functional value of products all end with the cognition of customers.

There are two physical entities that brands can perceive: goods and trademarks.

They carry different functions, goods realize experience, and trademarks carry cognition.

The President of Coca-Cola once said:

Even if Coca-Cola's factory was destroyed by fire overnight, as long as there is? Coca cola? With this trademark, we can make a comeback immediately.

Without the goodwill accumulated by Coca-Cola Company, it is impossible for the President to make such wild remarks.

For enterprises that are creating brands, trademarks are an important carrier and tool to condense and accumulate the goodwill of goods. Without trademarks, the goodwill of enterprises will have nowhere to depend on and it will be difficult to establish.