The Legal Protection On Non-conventional Trademarks

In order to adapt for the commercial activities, the trademark protection mechanisms have been varied and expanded, with a tendency from marks to the whole presentation, from the single dimension to three dimensions, from the static to the dynamic, from visual perception to aural perception to olfactory to perception and even to gustatory perception. Recently, some international conventions and organizations have come to approve of the protection of trademarks on sole color, sound and smell.This article aims at a tentative study of the legal protection of non-conventional trademarks on the basis of expanding tendency of trademarks. Non-conventional trademarks type includes color (sole color), sound, smell, hologram, taste, touch trademark and other future trademark manifestation. The legal protection necessity for non-conventional trademarks lies in the inevitably requirement of the development of trademark mark's type, the sharp growth of application registering non-conventional trademark, the maintenance for the market fair competition and the conformity tendency on the international trademark legal system. This article analyses the legislation cases concerning non-conventional trademarks in some countries and regions. Basing upon this, the researcher elaborates on the basic elements of non-conventional trademarks in terms of recognition, secondary significance and non-functionality and embedly considers on apply for registration of trademarks in color, sound and smell and proposes detailly examining standards on application way, the concrete description, how distinguished recognition, whether was general marker for the color, the sound, the smell trademark. In the meanwhile, the article offers a further discussion on problems of protecting the trademarks in smell, including the vibration theory (proliferation principle), the intrinsic confusion, and the unlikelihood to acquire the secondary significance via advertisements.As regards to China's response to the international tendency of protecting and registering the non-conventional trademarks, this thesis advises the Chinese government should participate actively in the discussion worldwide concerning the protection and registration of non-conventional trademarks and absorb advanced experiences gained by other countries and regions so as to establish its own internationalized protection system of non-conventional trademarks; otherwise, it should try its best to improve the domestic registration environment and encourages the internal enterprises to develop and exploit the non-conventional trademarks with a view to occupy a position in the international protection of non-conventional trademarks.