| Functionality system is an important system on trademark law, to prevent the monopoly of a commercial trademark to identify the actual functionality is very important to maintain fair competition order. However, the traditional concerns often focused on practical functionality, less involved aesthetic functionality. Core of this paper is to study the system of aesthetic functionality on trademark law.Firstly, this paper reviews the concept and content of aesthetic functionality, a clear aesthetic functionality and practical functionality belong to the same laws of functionality, trademark law and regulations made just functional, but not include all the facts functional legal functionality.Secondly, functionality began in the United States, is a concept and "trade dress" accompanying, and practical functionality to produce the former, aesthetic functionality to produce relatively late, US courts have been established by precedent "expired patent," "Troubleshooting practical standards ", " competition standards " and other criteria to define the practical functionality and aesthetic functionality, but using independent criteria; our current Trademark Law Article 12 established the practical functionality, but has not gave for aesthetic functionality a clearly defined.Thirdly, this paper discusses the theoretical and practical value of aesthetic functionality, aesthetic functionality and impact analysis system for trademark registration and trademark protection. In terms of value theory, on the one hand, aesthetic functionality trademark system could defend the public domain, to prevent monopoly, and promote fair competition; on the other hand, promote the classification of functional theory refinement study, aesthetic functionality and practical functionality tied enhance awareness of functionality. In terms of practical value, aesthetic functionality can not only improve the qualification for trademark registration, the protection of the interests of competitors' aesthetics; and help clarify the relationship between trademarks and design patents. Trademark registrations, significantly different from the functional, more resistant than the latter having, should give priority to examine whether a flag is functional, if not with a functional re-examine its significance; in addition, the practical function of the review more objective criteria, and review aesthetic functionality compared to more subjective and more difficult to operate, need to consider the potential impact on competition. In trademark protection, with practical functionality as aesthetic functionality is not applicable trademark indisputable principle; when re-examine whether the renewal of trademarks has aesthetic functionality; the establishment of aesthetic functionality in the system to some extent can reduce unnecessary infringement behavior; in addition, on the evidence, generally follow the "who advocates, who burden of proof", for the expired patent by the plaintiff the burden of proof that the expired patent does not have the aesthetic functionality.Finally, the Trademark Law of China as the background, aesthetic functionality to build their own system to make some recommendations. First, in the "Trademark Law", "Countering Unfair Competition law" aesthetic functionality and clear regime applicable to the case and judgment criteria. Currently, only exist when involving three-dimensional trademark aesthetic functionality problems, and in the criteria can learn from America's "competitive standards", namely,(1) whether it is necessary for competition, or the availability of alternative is designed, and(2) whether or not It will result in a significant disadvantage other competitors for its goodwill irrelevantly. Second, the coordination system of aesthetic functionality and significant and proof system. Third, the accumulation of aesthetic functionality specific judging method in the judicial process. |
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