The Case Study For The Trademark Distinctiveness Legal Problem

Abstract:The trademark distinctiveness is the core problem in the trademark review and the trademark litigation. But in the juridical practice, the establishment of the trademark distinctiveness has it’s weakness of too strong haphazardly and lacking of normalized logic. The case of Fuji trademark also shows this problem. The evaluation and approval program, civil tort litigation, cancel the registered trademark problem and along with administrative proceedings are the most absolutely question of Fuji trademark. Many views consider distinctiveness and identification are the same concept when we talk about the former. Whatever the current theory or juridical practice, inherent distinctiveness and gain significance are the master part of significance. The second meaning theory is connected with the gain significance. Scholars are continually doing increasingly accurate definition of the content, even in multi-level micromesh dissection, but the second meaning is mainly a practical issue, so it needs to be firmly connected with the Public cognition in practical questionably society elements to carry out synthetic judgment. What’s more, though the oblige gained the second meaning, he has been limited in using and protecting. He can’t prevent others from proper use of trademark’s original meaning. The case of FUJI trademark coming down to significance is correlation public, recognition of correlation public is usually being the pacing factor of the significance. From the experience of overseas lawmaking and judiciary, the provision about Trademark Distinctiveness is not concrete, especially about how to judge the problem of owing distinctive function after using to judge whether the trademark owe the inherent distinctiveness or not. This article considers that in the process of judgment we should obey two steps as followed. Firstly, we should determine whether the trademark has ruled out the significance unambiguously. Secondly, we should analysis the trademark with characteristic and type of inherent distinctiveness. The judgment of gain significance is mostly according to degree of awareness of correlation public to the trade-marks, which can be finished by unfolding market research. After survey and analysis of certain trademark’ market carried out by authoritative institution, this conclusion can be regard as expert opinion to be category of evidence adopted by judge-trademark dilution.