Research On The Criteria For Determining The Generic Name Of A Commodity

A generic name refers to a name which is commonly recognized and used by the relevant public,which aims to separate one category of goods(or services)from the other category.Though "Trademark Law of the People's Republic of China" clearly stipulates that generic names cannot be registered as trademarks,judgment of generic names of goods has remained a controversial issue.Article 10 of "Regulations on Several Issues Concerning Administrative Cases Judging Trademark Authorization and Right Confirmation" issued by the Supreme People's Court clarifies judgment standards for generic names of goods in terms of statutory judgment standards,conventional judgment standards,regional scope and time of judgment.These judgment standards have provided the legal basis and points out the development direction for practical exploration and theoretical research of disputes concerning generic names of goods in China.However,the judicial interpretation,to some extent,is a reconfirmation of the content of "Regulations on Several Issues Concerning Administrative Cases Judging Trademark Authorization and Right Confirmation",thus failing to further elaborate on the stipulation of generic names of goods.As a result,judicial practices have been faced with many difficulties,making in-depth reflection on the issue an imperative.Combining theoretical demonstration with case study,this paper expounds on the issue of judgment standards of generic names of goods.This paper consists of seven sections,and the body part consists of five chapters.Below is brief introduction of each chapter in the body part:Chapter 1 proceeds from the concept of the generic name of goods,and explores the essential attributes of the generic name of goods,including insignificance,universality and publicity.First,in terms of functions,the generic name of goods serves to refer to a specific category of goods(or services),but cannot distinguish sources of goods(or services).This justifies its insignificance.Second,the reference of the generic name of goods should be widely recognized and used within a specific scope.This shows its universality.Third,as an important symbol during the circulation process,the generic name of goods is shared by relevant market subjects instead of being exclusive to any individual,so it is public.To correctly understand the jurisprudential connotation of the generic name of goods is the prerequisite for clarifying judgment standards of the generic name of goods.Chapter 2 introduces and summarizes legal provisions on the generic name of goods so as to lay a solid foundation for the follow-up discussion and analysis.First,in terms of subjects,Article 10 of "Regulations on Several Issues Concerning Administrative Cases Judging Trademark Authorization and Right Confirmation" divides the generic name of goods mentioned by the subparagraph(1)of the second paragraph of Article 11 of "Trademark Law of the People's Republic of China" into the statutory generic name of goods and the conventional generic name of goods,and then stipulates judgment standards of each type.In terms of procedures,trademark application,approval for registration,application for cancellation,invalidation,and reasonable use—all these procedures involve the issue of how to judge the generic name of goods.Trademark Office of the State Administration for Industry&Commerce of the People's Republic of China,Trade Review and Adjudication Board and people's courts—all these subjects have the right to judge the generic name of goods.However,because of different procedures adopted by different subjects in different periods of time,judgment results might vary from each other.In this chapter,the procedural stipulations on judgment of the generic name of goods in China are summarized,which can contribute to clarification of the generic name judgment standards.Chapter 3 takes national and industrial standards as an example,and expounds on characteristics,position,and judgment standards of the statutory generic name of goods.The statutory generic name judgment is scientific,standard,authoritative,objective,and publically acknowledged and shared.All these characteristics give it an unparalleled edge in reflecting consumers' cognition and understanding of the generic name of goods.However,being limited,hysteretic,and weakly correlated in nature,the statutory generic name might not come to the same judgment results as the conventional generic name.When the two are in conflict with each other,"universal cognition of the relevant public" will be the fundamental judgment standard.Chapter 4 discusses judgment standards of the conventional generic name of goods.In essence,judgment of the generic name of goods is a judgment of significance.That the generic name of goods is used to refer to the category of goods(or services)is also based on universal recognition and extensive use of the relevant public.The role of the relevant public in judging the generic name of goods is undisputed."Relevant" and "public"are two key words to confirm the scope of the relevant public.Here,"relevant" means that the "public" is related to the goods;while "public"refers to consumers who pay for the goods.Therefore,consumers with identity characteristics or consumption habits related to goods are the only relevant public to judge the generic name of goods.The author thinks China can refer to judgment of consumers' cognition based on the US"Primary Significance Test".However,there is still a long way to go for China to explore a set of feasible judgment standards in line with its national conditions.Chapter 5 analyzes two hotly-debated issues—judgment standards of the regional scope and time,both among theoretical circles and practitioners.