The Study On Trademark Degeneracy

Trademark degeneracy refers to the improper use of the trademark by the owner and the relative competitors, leading to the loss of distinctive characters of the trademark. Recently the cases of trademark degeneracy occurred frequently, which seriously affects the companies. For the part of the company, trademark degeneracy causes all its efforts in trademark creation and promotion has been in vain, as well as the goodwill and the value included in the trademark. Therefore the study of the factors that the court takes into account in judging trademark degeneracy is of great significance in protecting trademarks degenerating to generic names.In the thesis, the author takes the case between Mount Wuyi Paulownia tea Co.Ltd. and the Trademark Review and Adjudication Board of SAIC as an example, to analyze the factors that are taken into consideration in the judgment of trademark degeneracy. The thesis contains 5 parts, except the introduction and tag:Part I, the introduction of the case between Mount Wuyi Paulownia tea Co.Ltd. and the Trademark Review and Adjudication Board of SAIC, and raise the controversial legal issues: how do we judge trademark degeneracy.Part II, the introduction of the concept and the result of trademark degeneracy. Part III, the discussion of the criteria to judge trademark degeneracy juridical practice. According to the experiment in juridical practice, the criteria include:(a) whether it is a legal generic name. Even though the trademark has degenerate to a generic name,what we should take into farther consideration is whether it is commonly known as a generic name in trademark law.(b) The subject of judgment. The conventional generic name is the common form of commodity. “Conventional” is the essential attribute of the generic name of commodity. The most important function of trademark is to help customers to identify source of commodity. Once the customer cannot find the commodity with registered trademark, the trademark has lost its fundamental function. Therefore customer should be taken as the subject in the judgment of trademark degeneracy.(c) The subjective aspect. We should take the subjective consciousness of the owner of the trademark into consideration,that is to say whether the owner intends to take the trademark as a generic name.(d) The time of judgment. Trademark degeneracy last for a long time, and the cognition of customer is changing, so we cannot assure when to take registered trademarks as generic names. However, once the trademark degenerates to a generic name, which means it has no indication function, it should be repealed and back to public field, so that it can be used normally by other operators. Therefore, the judgment of generic names is subject to the status of the fact when the trademark is judged.Part IV, the effective suggestions of how to precaution trademark degeneracy.Part V, the effective suggestion of how to make the degenerated trademark possess distinctive characters again.