Research On The Quality Guarantee Function Of Trademark

Starting in the 1930 s, a new concept of the function of trademarks arose. This new concept built on the foundation of the source theory and expanded it. The new concept recognized that a trademark did not necessarily have to indicate only manufacturer or merchant source, but could also serve to indicate a level of consistent quality. Hence, the “quality” or “guarantee” function of marks was born. However, whether the quality assurance function of trademark is an independent interest protected by trademark law is controversial. This article concludes that the quality assurance function of trademark is an independent interest protected by trademark law, although the quality assurance obligation is not the mandatory requirement of trademark law. The main body of this essay contains four chapters:Chapter One: Introduction to the quality guarantee function of trademarks. This article concludes that the quality guarantee function of trademarks has two meanings, which is quality guarantee obligation and quality guarantee right. The quality assurance obligation is not the mandatory requirement of trademark law. There are two reasons, firstly, the trademark law don’t protect the consumers directly, secondly, the market make the proprietor of trademark provide goods which are of high quality. So, what we focus on in this essay is quality guarantee right.Chapter two: Through analysis on trademark law cases concerning change of quality in America and Europe, it is found that the quality assurance function of trademark is an independent interest protected by trademark law.Chapter three: Rules to decide whether the quality guarantee function of trademark is impaired. This article concludes that it may cause trademark infringement if the goods sold is materially different from that of trademark owners, or the sale of goods doesn’t comply with the trademark owner’s quality control measures.Chapter four: Comments on legislation and judicature in Chinese trademark law. At the legislative level, we should modify Aritle7, Aritle42,Aritle43 of Chinese trademark law. At the judicial level, the court may judge trademark infringement when the quality guarantee function of trademark is impaired.