Research On Issues Of Trademark Genericism

It is common knowledge that distinctiveness is the key differentiating trademarks from other marks. It is the essential element in guaranteeing the protection of a trademark. As generic names are not born distinctive, they are excluded from becoming trademarked in all countries. However, America,Germany,France and China allow generic name to be protected under certain conditions. The unique nature of the legislation has caused several inconveniences in the legal practice. Trademark disputes involving generic names attract attention all around the world, especially regarding those trademarks which have been transformed from generic names into the names of products or services. The international cases involving "Aspirin" and "Thermos", as well as the domestic cases of "U'Pan" and "XueHuafeng" are all touched on this issue.Trademark genericism and the trademark significance of generic name are the two sides of one coin. The key to resolving this kind of dispute involving trademark genericism is to decide whether it is generic or not generic. Taking into account legislation and local legal practice of several countries, as well as from both theoretical and practical aspects, the acquisition of the trademark name, the test to determine the generic name, and the result of trademark genericism, as well as other pertinent issues will be analyzed. Furthermore, legal advice on how to deal with trademark genricism, based on precedents in the Civil Law system, and trademark protection in China, will be provided.This thesis is comprised of three parts.The first section concerns distinctiveness as the legal base for a trademark. The author analyzes and clarifies the concept of distinctiveness, its effect on trademark protection, and analyzes the distinctiveness of generic names. Several crucial questions in determining generic names are detailed. Firstly, I clarify the concept of distinctiveness by demonstrating that distinctiveness is a function relevant to the features of the marks itself. It is also closely related to the product to which it concerns. Furthermore, the author points out this distinctiveness will change according to the understanding of the trademark by the relevant public. Finally, the author analyzes the distinctiveness of generic names and points out the main issues it will be confronted with in the practical legal world.Second section concerns the legal analysis of trademark genercism and the main part of this thesis. The author mainly analyzes the reasons for trademark genericism, the test to decide trademark genercism, evidence to be employed and the results of the genericism. The test to decide trademark genericism is the most important issue of these aspects. Combining thorough analysis of Civil Law precedents and the main problems existing in the practical legal world, the author formulates a new test to determine trademark genericism. Lastly, from the legislation level of several countries, the author analyzes the results of trademark genericism and the legal relief available for trademark owners or interested parties.Third section concerns the analysis of domestic trademark protection and the related legal advices. The analysis detailed above provides the new kind of test to be determined regarding trademark genericism and clearly demonstrated. At the conclusion of this thesis, the author firstly makes a summary of the main problems regarding current legislation and legal practice in China, and conducts a thorough analysis of relevant cases. After a comprehensive analysis of trademark genericism, legal advices will be provided regarding these issues.