The Legal Protection On Non-Conventional Trademarks

The so-called non-traditional trademark, also known as the new trademark or non-conventional trademarks, is different from or independent from the traditional trademark. It refers to the trademark that could distinguish goods or services of the operators and obtain primary registration of a trademark. According to the item of Article Ⅶ of the current "Trademark Law" in our country, the type of trademark is limited to visual aspect only, without taking scent marks, auditive marks into consideration. However, the Trademark Law of the People’s Republic of China (revised draft) of2011, the item of Article8, eliminates the requirement of the trademark from the visual perspective and expands the agreeable area to single color marks and sound marks, symbolizing the fact that more types of non-traditional trademarks will be protected by lawThose traditional trademarks are limited to the visual sort, and with the emphasis on the narrative text and description. However with the economic development and the advancement of technology, they can no longer meet the needs of market competition. Taking this trend into consideration, most countries put the non-traditional trademarks into the protection of trademark law. Some international treaties concerning trademarks also accustom to this trend, and gradually acknowledge these new forms of trademark.Apart from the introduction and conclusion parts, this thesis is divided into five chapters to deal with the protection of non-traditional trademarks:In Chapter Ⅰ, it is the general introduction to non-traditional trademarks. This chapter introduces the traditional trademark and the types and characteristics of non-traditional trademarks, thereby defining the concept of the traditional marks and non-traditional trademarks.In Chapter Ⅱ, it is the legislation of the foreign non-traditional trademarks. This chapter introduces and analyzes of the legislation on non-traditional trademarks in the world’s major countries and regions, and tries to provide a reference to China in the protection of non-traditional trademarks.In Chapter Ⅲ, it is about the basic elements of the non-traditional trademark protection. From the aspect of positive primary elements and negative primary elements that constitute the trademark, this chapter provides a detailed analysis of the characteristics of the non-traditional trademarks’primary elements, like nobility, second meaning, function and conflict, and finally defines the concept of non-traditional trademark.In Chapter Ⅳ, it involves the standard of judging non-traditional trademarks. This chapter describes the standard of reviewing non-traditional trademarks in other countries and regions of the world. Through this chapter, it intends to provide useful references for our standard of reviewing non-traditional trademarks.In Chapter Ⅴ, it proposes suggestions on improving the non-traditional trademark in China. This chapter begins with the review of non-traditional trademarks from the notable and non-functional perspective, analyzes the present situation and inadequate legislative proposals of the three-dimensional trademarks, color trademarks, auditive marks, scent marks and finally raises some suggestions based on the analysis.