China's Three-dimensional Trademark Registration And Protection Study

Traditionally,trademark is always composed of words,devices,color combination or the combination of such signs and usually exists independently of the products.With the increasingly fierce market competition,the form of trademark has broken the traditional limitation and some new types of trademark appear such as smell trademark and three-dimensional trademark.In line with international practice and TRIPS Agreement of WTO,The Chinese Trademark Law establish the three-dimensional trademark legal system,in which three-dimensional trademark with three-dimensional signs can be protected and registered as a trademark.According to The Chinese Trademark Law,if a three-dimensional sign is subject to be protected under The Chinese Trademark Law,it can't be the shape of goods themselves,or the shape with technical effect or value.As a new type of trademark in China's current Trademark Law, three-dimensional trademark has nothing different with the traditional plane trademark in aspect of protection theory and right contents.However, as a new trademark registration object,in the process of three-dimensional trademark registration,we'll meet some unexpected problems that won't appear in the protection of plane trademark,for example,how to determine the distinctiveness and non-functionality description in registration.In the registration and protection of three-dimensional trademark,there will be some conflicts among the three-dimensional trademark,design,copyright and goods packaging and decoration protected by the Law against unfair competition.It's worth researching on how to theoretically establish the limitation on three-dimensional trademark registration conditions,how to examine the three-dimensional trademark in practice and how to protect the legitimate rights and interests of the three-dimensional trademark owner by law.Based on case study and in combination with other countries' law regulation and theories,this paper carries out a research on the registration and protection of three-dimensional trademark in the perspective of theory and practice,and presents relevant legislative and regulatory proposals so as to better protect the interest of the three-dimensional trademark owner and maintain market fair competition.The first chapter briefly introduces the relevant legislative conditions of France,the European Community,the United States,Japan and Hong Kong,and makes a simple analysis on the concept,classification and characteristics of three-dimensional trademark,and accordingly set forth the practical significance of protecting three-dimensional trademark.The second chapter,based on Chinese trademark examination condition, separately discusses the basic principles adopted in China's three-dimensional trademark examination,including validity principle and distinctiveness principle,and analyzes in details the non-functionality principle characterized by three-dimensional trademark;in addition,this chapter discusses the absolute reasons and relative reasons to refuse three-dimensional trademark in the process of examination.The third chapter describes separately the problems existing in the protection of three-dimensional trademark in China,such as functionality exclusion protection and the protection for unregistered three-dimensional trademark. The fourth chapter,beginning from right conflict analysis,emphasizes to discuss the conflicts among three-dimensional trademark and other intellectual property rights such as design,copyright,packing and decoration of well-known products,and proposes some solution in combination with real cases.The fifth chapter raises some concrete advice on how to improve the registration and protection system for three-dimensional trademark in China.In order to solve the problems in the examination procedure and enforcement of the three-dimensional trademarks,we shall establish the examination criteria and increase the administrative efficiency.In the meanwhile,we shall improve the relevant legal system,so that the owner of the three-dimensional trademarks could enjoy better protection.