| The trademark's distinctiveness is a nuclear conception in trademark law that decides a mark can obtain the trademark right and acquires the protection of the trademark law or not. But it has the more important significance. It plays domination role in the institutional design and operation of the trademark law. We can not only clarify the theories, but also benefit to reform to the concrete system of trademark law, by analyzing the basic theories and discussing the function of disdictiveness.This thesis makes an analysis on the basic problems in the trademark's distinctiveness through the function of the trademark and further delves into the theory basis on which the most important systems, namely the trademark infringement, special protection of the well-known trademark and the justification of the protection of the trademark, in trademark law are built just from the perspective of the trademark's distinctiveness. This article also points out the deficiency of the present research in order to furnish the theoretical support to the existing systems of the trademark law. This article composes of four parts as follows:Part I--elementary problems in the trademark's distinctivenessThis part focuses on the concept and judgment of the distinctiveness, realization of the function of trademark. The author firstly analyses the main function of the trademark and argues that distinct function is the basis of the other functions of trademark. Secondly, this part puts forward to concept of the distinctiveness of its own, which shows a possibility that consumers relate the trademark to the product, from the perspective of the realization of the distinct function aforesaid to the rethinking of the present research on this field. Thirdly, the author outlines basic principles in respect of determination of the distinctiveness as follows: trademark is deemed to be distinct in whole unless distinctiveness is not attributed to the trademark to any extent; and trademark is also deemed to be distinct with regard to the designated product or the service. Furthermore the fundamental criterion is acknowledgement by consumers. Under these principles mentioned above, the author analyses determination on theproblem concerning the inherent and acquired distinctiveness, stressing the general name of products, the trademark consisting of variety of arrangements of color and distinctiveness of trademark with three-dimension in appearance. Lastly this part points out the concept and determination of the trademark's distinctiveness shall be provided in the trademark law of the People's Republic of China.Part II--distinctiveness and trademark infringementThis part concentrates on the basic theory and systems design in light of trademark infringement through the theory of the trademark's distinctiveness. The author holds that trademark's distinctiveness shall set up relationship between the trademark and the product in the sense of consumers by way of normal contact with the trademark. So trademark infringement can be found in respect of the act to hamper or damage the relationship aforesaid, which can be respectively called infringement on using right in trademark and prohibitive right therein as not to realize the function of the trademark.This part further analyzes content and forms of infringement on using right, pointing out the effective scope of the right, the whole negotiable fields of products, which shall mean a infringement on using right is deemed in respect of an act of disposing, displacing, changing or covering the lawful trademark by any person. Then the author corrects the principle of "exhaustion of trademark right", contending that it is only a way to defend the abuse of the trademark right, accordingly the right in the trademark is not really 'hised up".It is agreed that confusion theory is desirable in the protection of the prohibitive right in trademark, adopting such a criterion on judgment of infringement on prohibitive right in trademark as a possibility of confusion by consumers. However this traditional theor... |
