Research On The Identification Standard Of Generic Name Under The Trademark Law

The identification of generic name not only runs through the administrative procedures such as trademark registration examination,invalidation,revocation and so on,but also lies in the trademark administrative litigation and civil tort litigation,The alleged infringer often defends that a registered trademark has lost its distinctiveness to become a generic namewhich could for reasonable use in trademark infringement litigation.However,there is always a big controversy over the recognition of generic name.The trademark hasdistinctiveness,and the generic name does not have distinctiveness.The trademark can play the basic function of distinguishing the source of goods or services.It is protected by trademark law and belongs to private areas of personal.The generic name indicates the nature of the goods or services,such as use and purpose.It can not play a role in identifying goods or services and is a public resource and should not be monopolized by anyone.If a generic name belongs to the public resources is unique to a particular person,it will seriously affect the fairness of other operators' participation in the market competition,and thus undermine the market order.If the trademark in the private domain is identified as a generic name,previous efforts of the owner iscome to nothingand seriously damage the interests of the trademark owner.However,the relationship between the trademark and the generic name is very close,the mark losesdistinctiveness to become a generic name,and the generic name acquiresdistinctiveness by using to become a trademark.Therefore,how to accurately identify the legal attribute of the sign has become particularly critical.Chapter I provides an overview and problems of the generic name.Section I defines the generic name and provides legal significance.Through combing the provisions on thelevels oflegislative,judicial,administrative at home and abroad,and presents that the generic name is used to refer to a class of goods or services,indicating the goods or services itself.Its essence is lack of distinctiveness.There are three legal significanceof the identification of generic name.First,the generic name is not allowed to registered as a trademarkand is not within the scope of the protection of the trademark law.Second,in order to maintain the public interest,loss of distinctivenessof the registered trademarks should be revoked.Third,in the civil tort litigation,the alleged infringer coulddefend thatthe registered trademark is lost of distinctiveness and become the generic name for proper use.Section II providesthat the generic name has the following characteristics,which are not distinctive,extensive,normative and unstablethat is just for generation of trademark.Section III analyzes the status quo and specific problems of the existing identificationstandard of the generic name.Ouridentification Standard of generic nameis divided into statutory standards and agreed standards.Due the existing standard is not clear,there is excessive reliance on statutory standards and despise theagreed standard,and precedency of legal effectof them is not clear,resulting in the confusion of the status quo.Chapter II analyzesthe identification standards of generic name.Section I identifies the generic name by means of a trademark.Trademark identification should take the relevant public awareness into account.In the process ofidentification of the generic name,there isa large number of cases where the alleged infringer uses the generic name for proper use.Once the disputed trademark is identified as a generic name,it means that the mark is not a trademark.This indicates that in the case of many defenses of generic name,the identification of the generic name and the absence of a markability are equivalent in effect.In view of the existence of such a close relationship between the trademark and the generic name,the identification of the generic name should also take the public awareness into account.The statutory standard does have its existence of value,due to it can not be true and accurate to reflect the relevant public understanding of the public,so it can only be served aspreliminary judgmentstandard.And the agreed standard is related to the public convention,and the starting point is the relevant public awareness.Thus it should attach importance to the agreed standards.Section II analyzes the identification standards of generic name of United States,andthese standards are actually comes from the consumers' understanding,which isfor the improvement of our existing standards.Chapter IIIgives the perfect proposal of the identification standard of the generic name.Section I improves the statutory standards,and thinks that thestatutory standard has its existence value,should it can be served aspreliminary judgmentstandard Included into the scope of the proposed evidence of the identification standard of the generic name,and can not be directly leads to the results of its identification.And that the validity of the evidence should be based on the level of the ability to reflect the level of the relevant public awareness.Section II improvesthe agreed standard,and thinks that the agreed standard is the relevant public convention,the starting point is related to the public awareness,it should attach importance to the agreed standards.At the same time,based on the mature experience of the United States in the judicial practice,that is,the primary significance test.And think that it should pay attention to the relevant public investigation to improve the conviction and credibility of the conclusions ofidentificationof the generic name.In addition,that is consistent with the convention as long as the relevant public generally accepted and used,which do not need to be scientific.Section IIIclarifysprecedency of legal effect of the existing standards,and which can learn from identificationofsimilar goods in the process of trademark infringement,and think that thestatutory standard can beserved aspreliminary judgmentstandardin the identification of generic name.However,according to the relevant public investigation and other evidences,the statutory standard does not match the agreed standard,thenthe agreed oneshould beprevailed.