The Research Of Sound Trademark Distinctiveness

Distinctiveness is the essence of trademarks.It is the core of trademark law.When reviewing trademark distinctiveness,in subjective standard it is suggested to establish a team of the inherent-acquired division theory is often used.However,due to the particularity of sound trademark,traditional theory is difficult to explain the problem of reviewing trademark distinctiveness.Most of the theoretical researches of trademark law in China focus on the traditional trademarks distinctiveness and have made substantial achievements.However,the researches of sound trademark distinctiveness are mostly based on the introduction of concepts and systems,which need systematic and in-depth analysis.Based on the present situation of legislative and judicial protection of sound trademark in China as well as the extraterritorial practice,this paper further analyses sound trademark distinctiveness,in order to help the development of Chinese legal system of sound trademark protection.This paper fully uses literature analysis method,comparative research method,case analysis method and logical analysis method.It contrasts the evolution of foreign legislation and case practice,studies present situation and puts forward suggestions.This paper first summarizes the concept and characteristics of sound trademark,and combs characteristics of sound trademark distinctiveness.Secondly,It analyses the present situation of sound trademark application in China based on data,and analyses the disputes in judicial practice from Tencent sound trademark administrative rejection review case,thus pointing out the difficulties in sound trademark review,including the problem of inherent distinctiveness,the proof standard of acquired distinctiveness,and the problem of expression.Finally,it combs the extraterritorial legal system and judicial practice of sound trademark protection system in the aspects of elements,review standard and expression.Sound trademark protection cannot be separated from a prefect legal system.When reviewing sound trademark distinctiveness,in terms of methods,it is suggested to establish a team of professional reviewers and divide the intensity of sound trademark distinctiveness for examining it in terms of different levels;In objective standards,we can refine the relevant standards including time of use,duration of sound trademark,geographical scope,market share,advertising costs,trademark licensing,to reduce the cost of review;in terms of technical support,we can set up informationized review method as well as Improve procedure of publicity and search.