Research On Functional Prohibition System In Trademark Law

The functional prohibition system is a restriction system aiming at the continuous expansion of trademark types from single plane to multi-dimensional.Before the appearance of non-traditional trademarks,such as stereoscopic trademarks and sound trademarks,it is sufficient to examine the significance of the registration of the traditional graphic images,such as graphic pictures,and so on.Trademark identification is based on extremely rich public resources.Protection of a logo is basically not hindered by the free competition of others.However,with the regulation of various non-traditional trademark labels,the protection of the functional logo caused by trademark protection caused the infringement of free competition,making the functional principle more and more attention to the countries.China has undergone two revisions to expand the category of trademarks to stereoscopic,sound and other signs.Only in the twelfth article of the trademark law,three kinds of trademarks cannot be registered,which are considered to be the only regulations on the function of trademarks in our country.As a censorship which is juxtaposed with "saliency",function is a principle and system.It is not isolated from isolated abstract law.Our country has always emphasized and discussed the importance of "prominence" in the theory of trademark law,but not enough attention to functional issues.In the judicial decisions of the related disputes,there are no lack of significant alternative functional judgments,or the simple functional equivalence of the trademark,and the lack of enthusiasm and professionalism in exploring the functional problems in practice.The main part of the article is divided into four chapters:The first chapter is the basic theory of the function of the trademark.Trademark function excludes trademark protection for functional labels,which mainly includes two aspects: safeguarding public domain and maintaining free competition.This article does not maintain that the balance between patent law,copyright law and trademark law is one of the institutional values of trademark function.The analysis compares the different definitions of trademark functionality represented by the American law and the EU law,and emphasizes that the discussion of the definition of the function is not to dig out a concept that can be exhausted from the functional characteristics to be fixed in the law.Functional definition is not only combined with fact judgment,but also refers to the value judgment of the functional law from the perspective of competition.The second chapter is the identification of the function of the trademark.The identification of trademark functionality is the most difficult part of the functional prohibition system.Taking the American law as a reference,the standard of functional identification has gone through the evolution course from the practical standard,the standard of competitive advantage to the two yuan standard,and unified the functional standard into the standard of competitive advantage,which is perfect fit with the value of the trademark law and the system of functional prohibition.Taking advantage of competitive advantage as the bottom line of trademark protection,compared with practical advantages,it effectively prevents the improper scope of trademark protection and prevents the alienation of trademark function system from the tool of patent law.The third chapter is the application of the system of trademark functional prohibition.The American law has an advantage in the application scope of trademark function,and the trademark function is not only the exclusive rule of three-dimensional trademark.In the application of the trademark function,we affirm the relative prohibition model of the function of the trademark in our country.The single functional characteristics can not be protected by the trademark law.The functional characteristics can not be overcome by the saliency of its own,but can be overcome by other notable features outside of itself,and it is protected by the trademark law.The fourth chapter is about the perfection of China's trademark functional prohibition system.The identification of "functional elements only" is one of the terms that can not be registered as a trademark,and the relationship between functionality and significance is defined.Taking the standard of competitive advantage as the sole criterion of function,refine the operational norms of the functional review of the trademark.The construction of the functional system needs not only a complete grasp of the functional theoretical system,but also a clear guide to functional review,or the support of the supreme legal interpretation and the guidance of the case.