The Judgement Of Significance To Trademark In China

The significance to trademark means that a trademark can mark the origin of goods or services and distinguish them from other similar goods or services. Determining the significance to trademark is not only the premise to the implement of trademark legislation, but also the foundation of ruling trademark disputes. In order to promote the development of world trade and convenience of government social management, the significance to trademark should be set clearly.Considering the legislation and cases in many countries around the world, they almost judge the significance to trademark with the corresponding criterion, generally they comprehensively use the combination of goods and services, combined with the relevant public cognitive, combined with the actual use, brand integrity and public interest criterions. As a benchmark, they should be combined with the characteristics of special trademarks for significant judgement. The range of the special trademark is wide in European and American countries, including generic trademark, topographic trademark, single color trademark, three-dimensional trademark, sound trademark and smell trademark etc., and determining the significance of the above special trademarks is based on most consumers’ cognition and the second meaning beyond the literal meaning through actual use, at the same time, the trademark owner has the burden to provide proof for the second meaning on trademarks. Such as the United States, Germany, most states regulate the second meaning of generic trademark and topographic trademark by defining the meaning of the second region, considerations, proved degree and reasonable use right, but when conclude the second meaning of single color trademark, three-dimensional trademark, trademark of sound and smell, they also take into account of the non-functional and special application and certification process.There is a lack of legislation in the judgement system of the significant to trademark in China and the relevant judicial disputes are also abound. So we should define the concept of the significance to trademark, bring the five basic criterions into the law, and define the scope of the relevant public and the actual specific standards in use by implementing criterions, as to provide reference for the court and the administrative department of trademark. When judge the significant to special trademark in our country, we should base on the five criterions, then combine with the characteristics of special trademark and consider the second meaning of region, non-functional of trademark, special procedures and other factors.