How to understand the distinctiveness of trademarks

"The meaning of a trademark is generally relative to the specified goods and services. This truth is self-evident. " To judge whether a logo is significant, we should not do it in the abstract, but should consider the goods or services it intends to attach. The concept or meaning of a sign cannot be directly related to the marked object, that is, goods or services, or has only a small or indirect connection. At the same time, the main body to judge whether a trademark is remarkable is not the examiner or judge of the Trademark Office, but the ordinary consumers in the relevant market. It is of great significance when ordinary consumers identify a logo as a trademark in their daily shopping. Ordinary consumers usually look at the logo as a whole, rather than looking at the details of the logo. He or she has reasonable relevant knowledge and reasonable degree of care, and the degree of care will change with the type of goods or services. As the product of the development of commodity economy, the trademark system depends entirely on the specific market, and the background of trademark use determines everything.

There is a degree of distinctiveness, and any mark that meets the minimum requirements of distinctiveness, that is, it has inherent distinctiveness, can be registered as a trademark. In fact, the prominence of trademarks often far exceeds this standard. Therefore, generally speaking, as long as a sign has no obvious defects, its meaning can be inferred. In practice, "reduction to absurdity is generally used to judge the distinctiveness of trademarks, that is, some marks that cannot be used as trademarks or registered as trademarks are excluded." From the legislative point of view, most of the provisions on distinctiveness in trademark laws of various countries belong to prohibitive clauses, that is, those unqualified marks are directly excluded from trademark protection. As far as academic research is concerned, "it is not easy to clearly define the composition of a distinctive trademark from the front, but to analyze it from the back, which will be more helpful to determine whether a trademark has distinctive elements." Meaning is dynamic. An inconspicuous mark may be remarkable because of long-term use. On the contrary, a distinctive sign will lose its meaning because of improper use. This involves the issue of obtaining salience.

In practice, this misunderstanding often occurs. Words not used by competitors are often significant, while words commonly used by competitive enterprises cannot be significant. But this is not the case. First of all, the fact that competitors don't use a word doesn't affect its description or distinctive attributes. For example, there is a sphygmomanometer that can be worn on your wrist like a watch. When Panasonic applied to register "blood pressure meter" as a trademark of sphygmomanometer, it pointed out that no competitive enterprise used the trademark of "blood pressure meter", so the word was of great significance. However, the examiner of the Coordination Bureau and the Appeal Board finally rejected the application. Competing enterprises do not use a word, which is only related to judging whether the word belongs to a common name. But it has no effect on the judgment of inherent meaning. Secondly, the fact that competing companies are also using a word is not enough to overturn its meaning. It has been pointed out that "mail" is very common in the names of many newspapers, and the word is not unique to the trademark owner, so the trademark "THE MAIL" is not enough to distinguish its owner's newspaper from other newspapers. However, this argument was eventually rejected on the grounds that uniqueness itself is not a prerequisite for salience.

In a word, whether a trademark is significant or not should be judged according to the specific circumstances of the case, and there is no universal iron law.

The strength of trademark distinctiveness and its difference significance

The distinguishing theory of trademark distinctiveness originated from America. According to the difference of inherent distinctiveness (identifiability) of trademarks, this theory distinguishes strong trademarks from weak trademarks. Only strong trademarks can be registered in the federal register, that is, only when the trademark itself is distinctive or the trademark owner proves that its trademark has acquired secondary meaning can the trademark be registered in the main register. Strong trademarks include imaginary trademarks, arbitrary trademarks and implied trademarks. In word mark, for example, the so-called fictitious trademark means that the words or letter combinations that constitute the trademark have no meaning in the dictionary. For example, "Exxon" (the trademark of Standard Oil Company) itself does not describe anything and has no meaning. However, not all trademarks composed of self-made words belong to fictional trademarks, and some words make consumers realize a certain meaning in their composition and pronunciation. For example, the trademark "Breads Preped [SiC]] used on" jam and jelly "will make consumers think that it constitutes a description of the quality characteristics of the goods used, that is, jam can be coated on bread, so the trademark is not a fictitious trademark. The so-called arbitrary trademark refers to the word or combination of words that constitute a trademark, which has a fixed meaning in the dictionary, but has nothing to do with its designated goods or services. For example, "Yahoo!" Used in the trademark of "Internet search engine" [Author's Note: Yahoo is one of the famous websites familiar to consumers in China, which means humanoid beast; Yahoo, after that, refers to a hateful person who has the habit of being an animal, a person with a human face and an animal heart. Black &; A "white" (black and white) trademark used on "Scottish alcoholic beverages". The so-called suggestive trademark refers to a trademark that has an innuendo or suggestive effect on the nature or quality of the goods it uses. For example, the trademark Roach Motel implies but does not directly describe the function of using the commodity "insect trap": the trademark "Rain Dance" does not directly describe the function of using the commodity "car wax", but implies the function that "wax will keep rain away from cars". The common forms of weak trademarks are descriptive trademarks, geographical trademarks and family names. The so-called descriptive trademark refers to a trademark that only describes the functions, quality, composition and other characteristics of the goods it uses. For example, the "Vision Center" only describes the places where you can buy glasses. The so-called geographical name trademark refers to a trademark that describes the origin of goods or services. For example, the "San Francisco Bay Club" describes that the health club is located near San Francisco Bay. In order to obtain federal registration and prohibit others from using it, the owner of the trademark must prove that consumers can distinguish the club from other clubs located near San Francisco Bay through the trademark. A surname trademark is a trademark with a common surname, such as the "Newman Own" trademark used in salad dressing. For this kind of trademark, the US Patent Office will not approve the registration unless the applicant can prove that the trademark has acquired a second meaning through use. The reason is that many people may use the same surname at the same time, and letting one person enjoy the trademark right of the surname will bring unfair consequences to others. Strong trademarks and weak trademarks are the division of theoretical circles. Examiners of the United States Patent Office (PTO) do not use this term in trademark examination, but use terms such as "inherent distinctiveness" and "merely descriptive" as stipulated in the American trademark law. This classification is based on the relationship between a trademark and the goods or services it uses. It holds that all trademarks that can be recognized by itself belong to strong trademarks, while trademarks that can not be recognized by themselves and can only be registered by using the second meaning belong to weak trademarks, which solves the problem of trademark registrability well and is worth learning.

China's Trademark Law does not distinguish the strength of trademark distinctiveness, but the expression of "trademark originality" appears in administrative regulations [see Article 1 1 of the repealed Interim Provisions on the Recognition and Administration of Well-known Trademarks]. As a legal vocabulary, "originality" is the requirement of copyright law for works, that is, works protected by copyright law must be original. "Significantness" is the requirement of trademark law that a trademark can be used for trademark registration, that is, the trademark applied for registration should have distinctive features and be easy to identify. Therefore, it is more appropriate to use the expression of "trademark distinctiveness" in trademark legislation. Article 1 1 of the current Provisions on the Recognition and Protection of Well-known Trademarks is amended as "distinctiveness". The distinctiveness of trademarks can be further divided into two levels. One is the inherent distinctiveness of the trademark logo itself, that is, the distinctiveness of the combination or expression of trademark words, graphics, graphics and words, and the distinctiveness of the three-dimensional trademark structure. The second is the distinctiveness obtained through use, that is, the distinctiveness of trademarks is improved by the improvement of brand awareness. "The originality of a trademark" refers to the distinctiveness of a trademark in the first sense, and a trademark with distinctiveness is not necessarily original. For example, the "Great Wall" trademark used for wine is remarkable but not original, while the "Haier" trademark used for refrigerator is remarkable and original.

Comparison of trademark distinctiveness with creativity and originality

American scholars once pointed out: "Significance is to trademarks what novelty is to patents and originality is to works." This statement is very accurate only in terms of emphasizing the importance of meaning. However, under the condition of patent authorization, it is not novelty but creativity that is truly qualified to compare with trademark distinctiveness. Novelty only requires patented technology that is not available in the existing technology, and creativity goes further, and the requirements are not obvious. For example, the European Patent Convention stipulates: "If the existing technology is taken into account, an invention is not obvious to the professional technicians and should be considered as a creative invention." The "originality" in the copyright law means that the work is independently completed by the author, rather than copying any other work. According to the interpretation of the American court, independent completion means "the work contains something unique, even in handwriting, which can show its uniqueness." In a very low-level work of art, there are irreversible things, which are done independently. "In other words, the work must have a minimum of creativity. Although the specific requirements of creativity or originality vary greatly from country to country due to the differences in historical culture or technological development level, as far as creativity or originality is concerned, it is basically the same in all countries of the world as a prerequisite for patent authorization or copyright protection.

Creativity or originality is a requirement for the patented technology or the work itself, but as mentioned above, distinctiveness has no substantive requirement for trademarks. The "administrative court" of Taiwan Province Province has repeatedly explained that "particularly remarkable" means distinctiveness, which may be beneficial to our correct understanding of distinctiveness: "The so-called particularly remarkable means that the trademark itself is special and can be distinguished from other people's goods." "Special cloud means that the trademark itself is special; Zhuo Yueyun refers to those who can distinguish from other people's goods. " "The so-called' special' means that the trademark itself is unique and can attract the attention of ordinary consumers; The so-called' significant' refers to the relationship between its appearance, title and concept and its designated use of goods, which is enough to distinguish it from other people's goods, that is, people who have the adaptability of commodity trademark recognition. " The above explanation only requires the trademark to be "special", "different from others' trademarks" and "able to attract consumers' attention", but there is actually no threshold. Of course, in practice, simplicity, eye-catching and easy to remember are conducive to improving the distinctiveness of trademarks, and these characteristics are helpful for customers who are satisfied with the brand to buy again. However, plainness, lack of originality or imagination do not constitute evidence that a trademark lacks distinctiveness.

However, in practice, trademark authorities in various countries sometimes deviate from the correct standard of distinctiveness and reject the application for trademark registration of enterprises on the grounds of lack of originality or creativity. For example, the Appeal Board of the European Union Internal Market Coordination Bureau once rejected the application to register the "MULTI 2'NI" logo as a trademark of various tools and accessories, on the grounds that the applicant did not show any imagination in the combination of these common words, so it seemed unremarkable. Similarly, even after admitting that the trademark does not need to be original or reflect the designer's imagination, the European Court of First Instance ruled that the symbol "movie action" is not significant for a series of services (including movie screening and rental business). In another case, the EU Internal Market Coordination Bureau rejected the application for registering the commercial slogan "Beauty is not young but decent" as a trademark, and the Appeal Committee sent it back for retrial, pointing out: "The slogan is not bland, but a statement that conforms to the' philosophy of beauty'. "It is not difficult to see that the Coordination Bureau's understanding of trademark distinctiveness is biased, and the reasons given by the Appeal Board for remanding are not appropriate, because blandness is not a fatal flaw for trademark registration. However, a French court has a deeper understanding of distinctiveness and clearly pointed out that trademark rights are not based on creation. In fact, the lack of originality or creativity is not a trademark defect at all.