Applicability Of Relevant Public Standards In Affirmation Of Degenerative Trademark Distinctiveness

Degenerative trademark distinctiveness means that distinctiveness is totally lost for improper utilization of trademarks.“Consumer” standard of Trademark Act determines the important role of relevant public standards in the affirmation of degenerative trademark distinctiveness,but there are lots of specific problems that should be resolved in applicability of relevant public standards in the practical affirmation of degenerative trademark distinctiveness.Different scholars may have divergence on opinions of relevant public standards' specific application problems in affirmation of degenerative trademark distinctiveness.In the paper,the method that theory links with practice is applied.On the basis of summarizing existing problems of relevant public standards in practical affirmation of degenerative trademark distinctiveness,the author analyzes specific applications of relevant public standards in affirmation of degenerative trademark distinctiveness,demonstrates necessity of relevant public standards in affirmation of generative trademark distinctiveness,and explores the range of relevant public standards and measuring problems of generative trademark distinctiveness.The chapter can be divided into three parts:In the first part,on the basis of introducing background of the degenerative trademark distinctiveness and relevant public standards and analyzing cases in juridical practice,the author summarizes the core problems in applicability of relevant public standards in affirmation of degenerative trademark distinctiveness.Firstly,scholars still have disputes that whether relevant public cognition can be used as the primary basis of affirmation of degenerative trademark distinctiveness.In addition,in cases which relevant public standards are used for affirmation of degenerative trademark distinctiveness,there is no clear definition for the range of relevant public range.At last,how to apply relevant public standards to confirm trademark distinctiveness has already reached the relatively vague degeneration degree.In the second part,it aims at specific analysis of application problems in the aforementioned relevant public standards.By aiming at the question one that whether relevant public standards can be used as the primary basis of affirmation of degenerative trademark distinctiveness and beginning with defects of objective criterion,the author analyzes the psychological essence of degenerative trademark distinctiveness and looks for basis from the mixed theory.By aiming at the question two that how to define the relevant public range,the author discusses the “relevant public” range in the affirmation of degenerative trademark distinctiveness from specific groups,relevant market and potential relevant public,analyzes gradually,and ensures that relevant public range in affirmation of degenerative trademark distinctiveness should have some consumers with professional knowledge.In addition,it is necessary to define the relevant public range by noticing specific influences of commodity property features on relevant products and regional time.By referring to “collective memory” theory in social psychology,the author explores potential groups involved by relevant public.By aiming at the question three that how to measure degenerative trademark distinctiveness in relevant public standards,the author analyzes and demonstrates that it is necessary to affirm degenerative trademark distinctiveness through “primary significance” and combination of “species analysis method” from the perspective of “quality”,namely what is degenerative trademark distinctiveness in the opinions of relevant public.The author demonstrates and thinks that relevant public may have no specific measurement standards for cognition of trademark from the perspective of “quantity”,namely whether relevant public has the confirmative quantity to affirm degenerative trademark distinctiveness.Furthermore,the author analyzes attentions of questionnaire content design from application of relevant public standards—measurement of consumer questionnaire on affirmation of degenerative trademark distinctiveness.In the third part,the author proposes the suggestion on applicability of relevant public standards in affirmation of degenerative trademark distinctiveness,puts forwards to enhance operability of practical level through the status of uniform relevant public,uniformity of effect increase theory and definite influence factors on the relevant public range,and regards relevant public standards as the primary standards for affirmation of degenerative trademark distinctiveness.In addition,by combining with evidence system in Chinese juridical practice,the author suggests that consumer questionnaire method should be applied and affirmative standards should be used to distinguish evidence efficacy in affirmation of degenerative trademark distinctiveness,hoping that applicability of relevant public standards in affirmation of degenerative trademark distinctiveness can be more reasonable and standardized.