A Study On Non-traditional Trademark Legal Protection

The law is the normalization and abstraction of the general facts of life,a nd further standardization of real life.But with the development of society,the varieties of facts that are regulated by law progress with each passing day.T herefore the legal system need reform and development.The trademark law is the abstraction and the standardization of trademark legal relationship in life.With the development of commodity economy,there are more and more kinds of trademarks in real life,such as three-dimensional trademark,single color trademark,holographic trademark,action trademark,sou nd trademark,smell trademark and so on.The methods of distinguishing comm odity producers and attracting consumers are diversified,and are no longer limi ted to visibility trademarks.With the dramatic changes of life,it is imperative to revise and modify the trademark law in order to bring about a good living facts practices.There are many strategies to regulate the same life fact.It is a more feasi ble way to refer the experience of developed countries in adjusting trademark 1 egal relationship under the circumstance of indistinguishable from better ways a ccording to the current research methods.Through reviewing and comparing th e Trademark Law of South Korea,we can rethink the problems existing in Ch inese Trademark Law,and put forward more prudent suggestions for the revisi on of China Trademark Law.Specifically,reaching on the elements of protecti on in non-traditional trademark protection systems in China and Korea and con ducting a comparative study of the special issues of the two countries’ systems,we propose an improvement plan for the non-traditional trademark protection system in China’s current Trademark Law.If non-traditional trademarks are to be protected in accordance with the Trademark Law,they should consider the problems that arise from their characteristics.Unlike traditional trademarks,the problems arising from the non-traditional trademarks characteristics should be c onsidered if non-traditional trademarks are to be protected in accordance with t he Trademark Law.In South Korea,it is a core concept that whether trademark is significant in the whole trademark law,which is the essential requirement of registrations,the approximate judgement of trademark and the limitation of trademark validi ty.It is a necessary condition for protection.The Trademark Law of the South Korea divides the significance of the trademark into "inherent significance" an d "gain the significance".The approximate judgement and the source of goods,three-dimensional trademark,single color trademark,holographic trademark,act ion trademark sound trademark,smell marks of non-traditional trademarks on th e likelihood of confusion mistaken judgment,are the same as the ordinary trad emark approximate judgement.Under the premise of the registration of three-di mensional trademark,firstly,for the color trademark,the color used by the co mmodity itself is not the source of identification on the designated commodity,and has no inherent significance.Only a single color or color combination is used to specify the duration of goods or services in order to obtain a identifie s the source distinguishing features that can be registered as a trademark.The sound and smell trademark,from the practice of the South Korea,does not rec ognize that the sounds and smells of trademark has inherent distinctiveness,onl y have significant use to approval of the registration.For the position trademar k,according to judicial precedent,through "through other label" visual cognitio n standard of trademark protection position.Therefore,if a registered trademark is to be registered,it is necessary to prove that the mark is required as the s ource of the commodity.For holographic trademarks and action trademarks,lik e other non-traditional trademarks,only by meeting the requirements that are si gnificant,comparing with other registered trademarks,are not identical,nor sim ilar or functional,can they be protected by trademark law.China has not yet provided trademark law protection for smell trademark,position trademark,holographic trademark and action trademark,so the protecti on of non-traditional trademarks is less.Meanwhile,in view of the fact that C hina’s Trademark Law is not clear enough for the protection of position tradem arks and the position trademarks cannot be protected,it is necessary to analyze the necessity of protecting the position trademarks,and then puts forward sug gestions for expanding the protection objects of China’s trademark law.The det ails are as follows.First of all,taking a look at the examination guideline of three-dimensional trademark in both countries,the guideline of China is not detailed and not gr aphic compared with South Korea,which leads to the fact that an examiner’s arbitrary determination can be put into it.So,it is better to complement one o f Chinese referring to one of South Korea.Secondly,there are cases in the United States,the European Union and etc.where a color trademark consists of one color was granted protection based o n the rule of distinctiveness through use,which can be also protected in South Korea.The fact that color trademark consists of one color does not necessaril y mean that it is void of distinctiveness and functional.So competent authority in China is better to contemplate whether to include the trademark consisting of one color to the protection scope of color trademark.In addition regarding t he protection scope of color trademark,since the acknowledgement of color tra demark is to grant exclusive rights to colors,it is necessary to determine the s patial scope on the use of color trademark not to excessively restrict the possi bility of the third party to use color.So,it is better to specify the spatial sco pe on Regulations for the Implementation of Trademark Law and trademark ex amination guideline.Thirdly,the main type of non-visual trademark is sound trademark.Sound t rademarks are used to distinguish goods or services and can be protected in C hina and South Korea.Similar to traditional trademarks,protection requirements are similar,however,due to attributes of sound trademark,judgement about th e acknowledgement on the use and similarity are a little bit different.Fourthly,regarding position trademarks,even though sign,word,figure or c ombination thereof have specific shape,but no distinctiveness.If they are in th e place where they acquire distinctiveness by being placed or affixed to the pr oduct in some specific way,it is better to protect them in the separate form o f non-traditional trademark,like color trademark,and sound trademark,three-di mensional trademark.Finally,as of today,smell,hologram,action trademark and etc,which are not specified under the article 8 of China Trademark Act can not be protected.So,as the writer of this paper,I suggest to amend the part of trademark defi nition under the article 8 of China Trademark Act to the form of general cond ition so that the scope of protection of non-traditional trademark can be enlarg ed.