Research On Distinctiveness Of Three-dimensional Trademarks

In academia,"three-dimensional trademark" is not a new concept, and our trademark lawin2001made it a requirement. In practice, however, the number of three-dimensionaltrademarks can be registered but it is very few. The main reason is that, as one of the objectsof trademark services—consumers who are not accustomed to it. The reason whyconventional planar trademark has high distinctiveness, easy to be identified by consumers,because there is such a concept being formed in the minds of consumers—which is theinformation related to the manufacturers of goods or services. As three-dimensionaltrademarks, the shape of goods, packagings, containers are still present in their own meaningin the minds of consumers. They are not anything else, are the appearance of the shape ofgoods or packaging of goods or container of goods. The root of these manifestations to thethree-dimensional trademark’s registration is the three-dimensional trademark has a weakdistinctiveness. Based on the difficult situation of three-dimensional trademark’s registration,the author studys the legislations of three-dimensional trademark’s distinctiveness andcensorship rules all over the world, explores the three-dimensional trademark distinctiveness’sinfluencing factors and limitations, to make a little contribution to the country’s difficulties inthe three-dimensional trademark’s registration.This paper includes six parts.The first part and the second part are the general theory of three-dimensional trademarkand trademark’s distinctiveness, which are focused on solving the basic theoretical issues suchas what the three-dimensional trademark is, how many kind of it, what is the meaning oftrademark’s distinctiveness and what is the relationship between trademark’s distinctivenesswith three-dimensional trademark’s registration.Third part discusses the inherent distinctiveness of three-dimensional trademark. Theauthor first analyzes the major countries’ censorships of the inherent distinctiveness ofthree-dimensional trademark in the world, such as the European Union, the United States;secondly,analyzes the problems of the review of three-dimensional trademark’s inherentdistinctiveness, such as the study of factors are not comprehensive, the lack requirements of"other significant feature of the marks"; concludes with recommendations to address theseproblems. The fourth part discusses the three-dimensional trademark’s acquired distinctiveness.The author starts from the scope of three-dimensional trademark’s acquired distinctiveness, itis concluded that general or common three-dimensional trademark shapes or the combinationsof functional shapes with other signs such as the lack of distinctiveness’ three-dimensionaltrademark, which can be allowed to register with secondary meaning. In review section, theauthor also follows the idea of "inside outside after the first", comparative analysis of tworepresented review standards of three-dimensional trademark’s acquired distinctiveness in theEuropean Union and the United States; combing the problems of the review of thethree-dimensional trademark’s secondary meaning in China; finally, perfect proposals aregiven.The fifth part discusses the limitations to the three-dimensional trademark’sdistinctiveness. Three-dimensional mark with trademark’s distinctiveness is in fact thethree-dimensional trademark. In addition to a kind of information delivery carrier, thethree-dimensional trademark also is the object of copyright and the patent right for design, forthe balance between the three-dimensional trademark rights and other trademark rights,copyrights, patent rights, the interests of consumers and the public, limitations tothree-dimensional mark’s distinctiveness are the fair use system and the non-functionalityprinciple.The sixth part summarizes the full text.