| Three-dimensional trademarks (3D trademarks) are marks consisting of shapes as well as words, devices, letters, numbers, colors and other elements. In2001, China acknowledged the registrability of "3D signs". Accordingly,3D trademarks began to rise as a new member of the trademark family. However, the expansion of trademark types is also accompanied by new problems. The cases concerning the packaging of FERRERO ROCHER chocolate, the shape of ZIPPO lighter, and the appearance of Nestle’s quadrate bottle all indicate the growing number of disputes on3D trademarks, leading to heated discussion among scholars and judicial people. Compared with traditional trademarks,3D trademarks share universality but keep individuality, which is reflected in its criteria for assessment and means of protection. The legal institution of China regarding3D trademarks does not have a long history, and judicial experience is far from enough, hence there exist a series of problems and disputes. Questions like whether traditional principles apply to3D trademarks, how to judge the distinctiveness and non-functionality, whether3D trademarks can only enjoy one mode of protection needs to be answered. This paper endeavors to make a systematic research on the legal requirements and multiple protection of3D trademarks so as to clarify theory confusions, and provide certain innovative advice.This paper contains three sections, namely:introduction, main body and conclusion.The introduction gives a presentation of the writing background and research value, then the status quo of research in related fields, and finally the research methods, objectives and innovation.The main body is divided into three chapters which are as follows:Chapter I discusses the basic issues of3D trademarks. This part analyzes the concept of3D trademarks, then the scope and classification, and at last the relationships between3D trademarks and the packaging and decoration of goods as well as trade dress.Chapter II discusses the trademark law protection of3D trademarks, and focuses on the connotation and assessment criteria of distinctiveness and non-functionality. Concerning distinctiveness, this part describes its concept and classification as well as its relationships with identifying property and originality. Additionally, it comes to the applicability of the relevance theory, and the assessment criteria of the U. S. and China, and ends with relevant suggestions. Concerning non-functionality, firstly, its concept, classification and relationships with the functions of trademarks and designs are discussed. Secondly, it discusses the legislative purpose, absolute effectiveness and exceptions of non-functionality theory. Thirdly, assessment criteria in the US, EU and China are compared. At last, ideas for improving the assessment of functionality are put forward.Chapter III extends the topic to multiple protection of3D trademarks, the object of which is "compound3D trademarks", namely those possess not only distinctiveness, but also originality and aesthetic characteristic. They are eligible to enjoy protection of several laws. This part first analyzes the coexistence problem between trademark law and copyright law and design law, which are all active protection modes, as well as the relationships between trademark law and unfair competition law which is a passive protection mode. Then the reasonableness of coexistence among different modes and relevant suggestions are illustrated so as to improve the whole legal protection system of3D trademarks.Finally, based on the exploration above, the conclusion gives a summary and elevation of the core ideas of this paper. |
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