Research Of The Trademark Distinctiveness

Before the second amendment in 2001, article 8 of the old version Trademark Law prescribed the distinctiveness of trademark as"the trademark can not use the following words and designs:……(5) generic names, designs or models of the goods in respect of which the trademark is used; (6) that have direct reference to the quality, main raw materials, function, intended purpose, weight, quantity or other characteristics of goods or services;……"The new version Trademark Law added one clause to article 8(5) and (6) as new article 11"The following signs shall not be registered as a trademark:(1) those which consist exclusively of generic names, designs or models of the goods in respect of which the trademark is used; (2) those which consist exclusively of signs or indications that have direct reference to the quality, main raw materials, function, intended purpose, weight, quantity or other characteristics of goods or services; (3) those which are devoid of any distinctive character. Where trademarks under the preceding paragraphs have acquired distinctiveness through use and become easily distinguishable, they may be registered as trademarks."The old version Trademark Law regulated that the designs which contained non-distinctive component would not be able to register, and can not be used as trademark else. This regulation greatly limited the"autonomy of the will"of the civil subject in the civil activities, in effect also increased the threshold of the register of the trademark. As a result, some trademark which could be registered as a whole through abandoning the exclusive right of the non-distinctive parts was excluded, and the trademarks which have acquired distinctiveness through use may not be registered as trademarks too.In order to analyze the progresses and the shortages of the amendment, this paper discussed the distinctiveness of trademark in four aspects: the meaning of the distinctiveness, distinctiveness vs. trademark right, the classification of distinctiveness and the determining of distinctiveness.The first chapter mentioned the original of the definition of distinctiveness in the aspect of acceptation, analyzed why this was so confused and gave some suggestion for it, and made a distinction between the novelty and distinctiveness.The second chapter explained the connotation of the distinctiveness relative to the trademark right, then opened out the genius of trademark and trademark's distinctiveness. And this chapter also analyzed the evolution of trademark's function, made clear that the distinctiveness's core status in the trademark system. And lastly, this chapter presented the reasons why when the distinctiveness of trademark disappeared the trademark should be abolished and the right owner should prevent the desalting of the well-known trademark's distinctiveness.The third chapter discussed the traditional classification of distinctiveness, and made a conclusion that it was not proper to use the ideas of inherence distinctive and acquired distinctiveness, and should use actual distinctiveness and latent distinctiveness instead.The forth chapter posed some basic principles in the determining of distinctiveness, deepened the knowing of the genius of trademark right. Throughout this paper, the writer analyzed the distinctiveness of the trademark in various aspects deep to the genius of trademark right, and also an attempt to guide the thinking of the current trademark legislation.