Judgment On Distinctiveness Of Trademark

Distinctiveness means a trademark's ability to identify and distinguish his or her goods from those manufactured or sold by others and to indicate the source of the goods. According to the traditional theory, the distinctiveness could be either inherent or acquired while the former is superior and the latter is nothing but the fiction of the distinctiveness. As a Japanese scholar said,"Like the face to human being, the trademark is the face to goods. It represents the value and credit of the company."As long as the average customers accepted the face, trademarks will bring more profits to the company in the market.As a matter of fact, the inherent distinctiveness is not the real distinctiveness but mere an advantageous condition for a trademark to acquire distinctiveness.Therefore there exists no born trademark and only those trademark which have already acquired distinctiveness could become the real trademark in the market. It is the acquired distinctiveness that determines the strength of a mark while the acquired distinctiveness relies ultimately upon the market and the consumers.When we talk about the distinctiveness of the trademark, we must consider"relevant public". The concept is cited in the TRIPS and"Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks"as"relevant sector of public". In the two documents,"relevant public"is used as a standard in the determination of well-known trademarks. This"relevant public"has an exact definition both in relevant treaty and judiciary explanation in China.The word"relevant public"in trademark theory and practice is very important, not only for the theory system, but also for trademark registration and trademark jurisdiction. It has already proved by thousands of trademark practices. Of course, the theory itself has its faults, for example, the flexibilities of the concept.The paper can be divided into following parts:The first part: This part describes the general outline of the distinctiveness of the trademark, mainly forcing on its basic concept and its role in trademark law system.The second part: It is about the way to judge the distinctiveness, followed by two ways: the general judgment and the way stipulated in Trademark Examination and Its Standards. In this part, the concept of the relevant public is cited as a feasible way to judge the distinctiveness.The third part: It concretely introduces the relevant public orientation theory. It starts from the concept and its legislation, and also expounds on the experiences and attentions of the relevant public.The fourth part: It includes five cases which had happened in the examination and jurisdiction in practices. Whether the relevant public orientation theory is good or not, the cases tell. The part tries to derive some conclusions from these cases.The fifth part: It is the last part of the paper. The suggestions are about legislation. Improvements on the purpose of the legislation, the registration and the jurisdiction are three main suggestions.