Research On Judgment Of Distinctiveness Of Three-dimensional Trademark

Along with the speeding development of market economy, many countries have expanded the scope of trademark which can be registered one after another. According to the “Agreement on Trade-Related Aspects of Intellectual Property Rights” under WTO, members can include any visual sensed marks into registered, so there is no doubt that three-dimensional trademark is lawful to be registered. However, even three-dimensional trademark can be registered and protected in over one hundred countries and regions now, there are still many debates among questions like if it has inherent distinctiveness, how to judge its inherent distinctiveness, how to use the evidence well to prove its acquired distinctiveness. As far as three-dimensional trademark concerned, Trademark Law of the People’s Republic of China of 2001 has included it into protection, but there are many problems in judicial practice since then, there is almost no modification about how to judge its distinctiveness in the revised Chinese Trade-mark Law as of 2013.With the economy developed with more quality after reform, there are more problems arisen from distinctiveness judgment in cases, but there are still no explicitly standard and method to judge, countries still have no mature and effective mode of law explication and application. Therefore, there is significant theory and practice value to offer some advice on standard and method of judging three-dimensional trademark distinctiveness after concluding and analyzing problems in judicial practice in our countries and studying the related rules and experience of America, European Union and Japan. The full text is divided into three parts: preface, body part and epilogue. The body part consists of four chapters.The first chapter gives an overview of content of three-dimensional trademark distinctiveness. It explains the origin of the trademark and what is three-dimensional trademark, and explain what three-dimensional trademark is in general and narrow sense, then distinguish three-dimensional trademarks from three-dimensional marks. It explains what is trademark distinctiveness and what is three-dimensional trademark distinctiveness, illustrating the specialty of three-dimensional trademark distinctiveness. At last, it analyze if there is any influence on judging three-dimensional trademark distinctiveness when three-dimensional trademark can be explained in general or narrow sense, then we conclude that we have to judge the three-dimensional mark distinctiveness no matter on general or narrow concept. So this paper we define the concept of three-dimensional trademark in general sense and mainly analyze how to judge the inherent distinctiveness of three-dimensional trademark.The second chapter analyzes cases and problems about judging three-dimensional trademark distinctiveness in judicial practice. It explains the classical cases since 2001 and summarize problems we encounter. The problems are as follows: 1) The design creativity of the shape of product or its package is irrelevant with its inherent distinctiveness proving. 2) It denies the probably of inherent distinctiveness of the shape of product or its package totally for the reason that thinking people will not perceive them as trademark for granted. 3) As for acquired distinctiveness of three-dimensional trademark, it is important to prove its “ higher well-known degree” while there is no rules to refer to, also the rules about evidence to prove the “ well-known degree ” is are too general to take, it is not scientific. I take some analyze on the above questions.The third chapter analyzes the related rules and experience of abroad on judging three-dimensional trademark distinctiveness. In this part, we mainly discuss the legislation and judicial practice on judging three-dimensional trademark distinctiveness of America, European Union and Japan, we mainly analyze related rules and experience of those regions in allusion to the problems in our judicial practice. The rules and experience are as follows: 1) They admit three-dimensional trademark has its inherent distinctiveness though there are debates in America on if the product shape mark has its inherent distinctiveness. 2) As for how to judge the three-dimensional inherent trademark distinctiveness, America has two theory based on if apply more rigid rules on product shape mark, one is the same rule and another is the different rule; European Union thinks it should apply the same rules to the two-dimensional trademark, but when we judge the three-dimensional trademark distinctiveness, we should consider the character of products, take if the related consumers can perceive it as trademark as the final standard; Japan take a rigid standard on three-dimensional trademark inherent distinctiveness judgment, they think as long as it can be perceived as product shape as a whole, no matter how creative it is compare to the common design, it is not distinctive, but in recent case of “GUYLIAN Chocolate”, the court stated the creativity of product shape can be used as evidence to prove its inherent distinctiveness. 3) As for how to judge the three-dimensional trademark acquired distinctiveness, when we come to what evidence to adopt, America pay more attention on testimony, questionnaire and practical confusion of related consumers, and they think the use evidence of word label on product can be used to prove three-dimensional mark acquired distinctiveness, whether the three-dimensional mark appears conspicuous or not; European Union mainly adopt these evidence such as sales record, the scope and influence of advertisement, the scope and depth of its market, also some investigation of related market or consumers, but they subscribe more details about how to investigate in or to reach more real and fair result; Japan has establish such an principal after COCA CO-LA BOTTLE case, providing that if applicant can prove the marks in market is the same as in application and all objective evidence can prove consumers can relate the marks to products or business of applicants, then the use evidence of word label on product can be used to prove three-dimensional mark acquired distinctiveness, whether the three-dimensional mark appears conspicuous or not. Through analyze of this part, we hope to take some useful reference for our legislation and judicial practice on three-dimensional trademark acquired distinctiveness judgment.The last chapter puts forward some suggestions on three-dimensional mark distinctiveness judgment. As for inherent distinctiveness, after analyze of judicial practice in judging three-dimensional mark distinctiveness and studying the related rules of abroad on same questions, I put forward some factors considered in allusion to the problems encountered. The elements considered are as follows: the design of three-dimensional mark, the situation of related market, the character of the product. As for acquired distinctiveness, I put forward some advice on adopting what evidence in view of the method and means, such as evidence like consumers investigation report should be led and pay attention to adopt, use evidence of three-dimensional mark that bears some word label should be used to determine its acquired distinctiveness, whether the three-dimensional mark appears conspicuous or not.