On The Legal Protection Of Three-Dimensional Trademark

Along with the standing development of market economy, many countries have expanded the scope of trademark which can be registered one after another. However, the extension of trademark style also brings a series of legal questions. As far as the three-dimensional trademark concerned, although three-dimensional trademark can be protected in more than 80 countries, including our country, these countries are still unable to agree upon how to protect the three-dimensional trademark. They have to think over whether protection of three-dimensional trademark can collide with the original trademark law system and whether protection of three-dimensional trademark can break the relationship of original trademark law rules. They also have to think over how to judge the distinctiveness and the functionality of three-dimensional trademark. For the entire intellectual property system, we also have to think over whether the protection of three-dimensional trademark can destroy the intellectual property system; result in the overlap and crossover of trademark law, copyright law and patent law. Without doubt, the wide divided opinions of the theory research have laid down enormous hidden danger for the three-dimensional trademark examination and judicial practice, affecting the application of trademark law. Therefore, carrying out the study on three-dimensional trademark has significant theory and practice value. This paper clarifies all sorts of theory puzzles, discusses the rational standard on how to judge the distinctive and functionality of three-dimensional trademark and achieves the harmoniousness of trademark law and intellectual property system. This paper can be divided into four parts:The first part summarizes the basic content of three-dimensional trademark protection and holds out that three-dimensional trademark can be clarified into common three-dimensional mark, the shape of commodity itself and commodity package or vessel appearance. Based on the perspective of post modern times, consume society and methodology, this paper sets forth the rationality of three-dimensional trademark protection.The second part analyzes the harmonious coexistence of trademark law, copyright law and patent law. Three-dimensional trademarks may have the character of artistry, distinctiveness and utility at one time. Allowing the protection of three-dimensional mark by trademark law may have the result that one three-dimensional mark can be protected both by trademark law and copyright law or patent law. This paper holds that by means of intellectual property choice doctrine to avoid the overlap protection is unadvisable. Overlap protection of three-dimensional mark is not superfluous. What it protects are different interests bear by the same object.The third part analyzes the distinctiveness requirement of three-dimensional trademark protection. Firstly, this paper clarifies the puzzle that whether three-dimensional trademark protection must prove the second meaning. Then, this paper discusses different standards to examine the distinctiveness of three-dimensional trademark, points out the deficiency of each standard and holds that we should take into account such factors as follows: the character of three-dimensional trademark itself, market environment and the character of product.The fourth part discusses the requirement of non-functionality. This part holds that the merits of non-functionality requirement are to protect the public domain of trademark law and sets forth that the divide between utility functionality and aesthetic functionality has many deficiencies and the judgment of functionality should apply the uniform standard. Then this paper compares the two standards of functionality and holds that the competition theory which is based on the essence of functionality judgment finds the balance point between fair competition and free competition. The competition theory can protect the interest of three-dimensional trademark holders; meanwhile it can prevent confusion of consumers. It does not touch the base line of free competition and avoids the system cost of identification theory. So the competition theory is the desirable choice to examine the functionality doctrine. Based on the above analyses, this paper discusses the deficiency of the 12 article of Trademark Law of the Peoples Republic of China and points out corresponding amending advices.