A Research On The Cognizance Of The Acquired Distinctiveness Of Trademark

The cognizance of the acquired distinctiveness of trademark has a vital role in the legal system. Conform to the development of society, the new amendment of the trademark law arises at the right moment. But the rules how to standard the acquired distinctiveness of trademark after long-term using have significant regulation is still too general, and the operability is difficult in the judicial practice.Through analyzing the basic theoretical issues of the cognizance of the acquired distinctiveness trademark and to explore the role of the specific system of the Trademark Law, we can not only clear the theoretical knowledge, but also it is better to have practical significance keeping pace with the times of trademark legal system. This paper adopts three methods, for respectively, the law hermeneutic method, the comparative study method and the case analysis method, to analysis the meaning of the acquired trademark, the cognizance time of the acquired trademark, the cognizance standards of the acquired trademark, the range of application of the acquired trademark and the cognizance of non-conventional trademarks. Comparing the sophistication of the acquired distinctiveness rules of our Trademark Law with the acquired distinctiveness rules of the Trademark Law of the United States, European Union countries and other developed countries, we should draw lessons from foreign advanced experience and put forward to improve opinions. Through a large number of judicial cases, and scholar’s theory, the paper put forward some advice, for examples, the definition, the scope, the time point and the standard of the cognizance of the acquired distinctiveness trademark. The full text discusses the following five parts:The first part--An overview of the acquired distinctiveness of trademark. This chapter mainly uses the method of hermeneutic and the method of literature analysis to summarize the distinctiveness of trademark, and the acquired distinctiveness of trademark, and the theoretical definition and legislation of "Secondary Meaning", and in order to summarize our own conclusions. The focus of the chapter is to obtain the conceptual analysis of the acquired distinctiveness and to explain the relation of the internal logic "Secondary meaning" and the acquired distinctiveness of trademark and to expound legislation status and significance of the acquired distinctiveness of trademark in the Trademark Law.The second part--the foreign countries legislation and judicial practice of the cognizance of the acquired distinctiveness of trademark. This chapter analysis mainly the cognizance of the acquired distinctiveness of trademark of the developed countries from the levels of two angles of the legislation and judicial practice of the cognizance of the acquired distinctiveness of trademark the United States and European Union respectively. Basing on the foreign countries experience of the cognizance system of the acquired distinctiveness of trademark, it is to improve and help the system of trademark in China.The third part--the existing problems of the cognizance of the acquired distinctiveness of trademark in China. This chapter mainly uses the case analysis method to analyze the existing problems of the cognizance of the acquired distinctiveness of trademark in China and reveal some specific difficulties that we face in judicial practice of the cognizance of the acquired distinctiveness of trademark in China. For respectively, the concept of the acquired distinctiveness of trademark is not clear; the specific standards of the acquired distinctiveness of trademark is lack; the time points of the acquired distinctiveness of trademark is explicit; the application scope of the acquired distinctiveness of trademark is not distinct; the provisions of the acquired distinctiveness of nontraditional trademark is lack.The fourth part--the advice of the acquired distinctiveness of trademark. On the basis of drawing lessons from foreign advanced experience legislation and judicial practice, and combining with our country reality needs and operability of the trademark review and registration and judicial practice, this chapter put forward five suggestions respectively:a clear definite concept of the acquired distinctiveness of trademark; establishing the specific requirements of the acquired distinctiveness of trademark; uniting the point time of the acquired distinctiveness of trademark; limiting the application scope of the acquired distinctiveness of trademark; increasing the provisions of the acquired distinctiveness of nontraditional trademark.