The Cognizance Of The Generic Name In Trademark Registration

The cognizance of the generic name has always been controversial problems.According to the regulation of trademark law in our country, when it only formed bythe generic name of the goods shall not be registered as a trademark; but if in additionto general name it also has other distinctive characteristics, the registered trademarkwhich has already been approved shall not be revoked, and at the same time, atrademark owner may not prohibit others to make faire use of that trademark. In fact,the cognizance of the generic name is division and balance about the interests of allparties. The disputes in reality are emerging one after another, such as “Cabernet”,“LuJin” cases which dispute for trademark registration or improper use and so on.However, neither legislation nor judicial practice has set a real effective standard forthe cognizance of generic name, that can’t fully realize the purpose of the cognizanceof generic name.This paper attempts from standards in cognizance of the generic name and judgeprocedures, in order to consummate the system from these two aspects. The conceptof generic name, current laws or regulations, and judicial processing mode are mainlydiscussed, as well as some opinions about how to complete the cognizance of genericnames. This paper is divided into four chapters.Chapter One analyzed meaning of the general name from the definition of theconcept of generic names is to solve the disputes in trademark registration and use, accurately classify private rights and public domain boundaries, fully protect rights ofthe trademark owners as well as the competitors and interests of consumers. At thesame time, according to the judicial practice and theoretical study of the standards incognizance of generic name, and characteristics of the generic names such asuniversality, standardization and generality, this paper discussed the concept ofgeneric name and nature, discrimination and distinguish the national standards andtrade standards, expert advice and consumer recognition etc. in the cognizance of thegeneral name that which standard is more important. This part laid a foundation forthe following three chapters.Chapter Two studied distinctiveness that was called the soul of the trademark law,combined the inherent distinctiveness and the acquired distinctiveness theory to thecognizance of the general name, especially in “use” and “how to acquiredistinctiveness”, analyzed the reflection of this rule in current law. This part is fairlyessential that it continued the discuss in standards and foreshadowed below.Chapter Three also discussed the regional factors effects in the cognizance of thegeneric name according to the judicial disputes, including only in a certain area ratherthan by the national recognition can be regarded as generic names, and new impactthat globalization brings. Considering the actual situation of trading market, it shall bea correct understanding that the range of generic name is not static, but constantlychanging along with the distinctiveness of relevant identification. In addition to aregistered trademark changed into a generic name because of the gradual loss indistinctiveness, in circumstances the generic name can also acquire distinctivenessand be registerable through the long time and wide range of use. That’s the reasonwhy this kind of case trial time should be simplified and shortened. Design fromsystem to process is very necessary.Based on above, Chapter Four attempted from both the entity and procedure sideto support the legislation and the judicial practice for reference, and achieve thepurpose of the trademark law, to promote the development of economy and protect theinterests of consumers.This paper is creative in the study of the judicial disputes, acquired distinctiveness theory and legislation evolution to explore the perfect system of thecognizance of generic names in China.