Legal Issues Research On The Generic Name Of Commodity

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 by the generic name of the goods shall not be registered as a trademark; but if in addition to general name it also has other distinctive characteristics, the registered trademark which has already been approved shall not be revoked, and at the same time, a trademark 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 all parties. 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 for the cognizance of generic name, that can’t fully realize the purpose of the cognizance of generic name. This paper attempts from standards in cognizance of the generic name and judge procedures, in order to consummate the system from these two aspects. The concept of generic name, current laws or regulations, and judicial processing mode are mainly discussed, as well as some opinions about how to complete the cognizance of generic names. On one hand from universality, standardization and generality of the generic names, this paper discussed the concept of generic name and nature, at the same time studied distinctiveness that was called the soul of the trademark law, combined the inherent distinctiveness and the acquired distinctiveness theory to the cognizance of the general name. On the other hand discrimination and distinguish the national standards and trade standards, expert advice and consumer recognition etc. in the cognizance of the general name that which standard is more important. According to the judicial disputes, this paper also discusses the regional factors effects in the cognizance of the generic name, including only in a certain area rather than by the national recognition can be regarded as generic names, and new impact that globalization brings. Considering the actual situation of trading market, it shall be a correct understanding that the range of generic name is not static, but constantly changing along with the distinctiveness of relevant identification. In addition to a registered trademark changed into a generic name because of the gradual loss in distinctiveness, in circumstances the generic name can also acquire distinctiveness and be registerable through the long time and wide range of use. That’s the reason why this kind of case trial time should be simplified and shortened. Design from system to process is very necessary. This paper attempts from both the entity and procedure side to support the legislation and the judicial practice for reference, and achieve the purpose of the trademark law, to promote the development of economy and protect the interests 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 the cognizance of generic names in China.