| Since the first Trademark Law was made in 1982 after founding the People's Republic of China, the Trademark Law of China has been amended twice. Through the last amendment of the Trademark Law in 2001, the actual Trademark Law is in keeping with the Agreement on Trade-Related Aspects of Intellectual Property Rights of WTO. The Trademark Law of China is consistant with international standards formally. Although our country's trademark law is advanced formally, the provisions about the distinctiveness of the trademark law, which is the core of the trademark law, are still vague. When article nine and article eleven of our country's trademark law refer to the distincitveness of a trademark, they use the phrases of "significant characteristics" and "be easy to identify" to define the meaning of distinctiveness both at the same time. It is difficult to find the exact meanings of the two phrases only according to the articles. Also, there is no legal interpretation to define the accurate meanings of the phrases. At the same time, in trademark law practice, how to determine whether a trademark is distinctive, China's Trademark Law has not given any basis for judgement. That is, the reference standard is an unwritten or non-transparent. There is no specific legal provisions as the basis for judicial practice of judgement of distinctiveness, the judgement will inevitably face great difficulties. At the same time, because there is no specific standard for reference, judicial staff apparently has been given too much freedom. These are not conducive to China's trademark law practice's healthy development.Behind the provisions of any law, there must be related legal theory to support them. The related legal theory can make good on the provisions of the interpretation, and that China's trademark law is no exception. The articles about distinctiveness of tredemark of China's Trademark Law are ambiguous. There must be theoretical reasons. According to the traditional theory, distinctiveness includes "inherent distinctiveness" and "distinctiveness acquired through use". The in being study about distinctiveness is usually based on the traditional theory. The traditional theory has limitations, because it fails to point out the essence of tredemark distinctiveness. So it is not hard to understand the articles of China's Trademark Law about distinctiveness are ambiguous.The articles about distinctiveness of China's trademark law, and the traditional theory are all ambiguous when they refer to trademark distinctiveness. The crux of the matter is that the traditional theory fails to point out the essence of distinctiveness. Also, no accurate standard is provided by the traditional theory. At the same time, the majority of the existing study are relative study, the study on distinctiveness itself is a little weak.Because of the limitations of the traditional theory and the articles of trademark law, this study focus on the trademark distinctiveness itself. This study makes the meaning of trademark distinctiveness as the starting point. Then we make a in-depth study on the essence of trademark distinctiveness. Through this in-depth study, we can understand what is the essence of distinctiveness, and what is the accurate criteria of judgement about distinctiveness. Then we analyse the fluctuations and the impact factors of trademark distinctiveness. We can have a comprehensive understanding with trademark distinctiveness now. Then, the traditional theory about trademark distinctiveness is revised. After it, the relation between trademark distinctiveness and the unity of the concept of intellectual property rights is discussed. In the end, some related articles about distinctiveness of China's trademark law are revised. |
