Research On Judgement Of Distinctiveness Of Three-Dimensional Trademark

With the rapid development of the information society,the forms of trademark are increasing.Besides traditional trademark,three-dimensional trademark,sound trademark and color trademark are also beginning to enter the protection field of Trademark Act.However,due to the influence of traditional trademarks for many years,these non-traditional trademarks often encounter difficulties in registration,especially three-dimensional trademark.Because they are closely related to commodities,Trademark Office,Trademark Appraisal Committee and Courts often reject the registration of these trademarks on the ground of its lacking distinctiveness,reasoning that relevant public usually regard the three-dimensional symbols as common containers or packaging.However,they rarely give a specific explanation on the basis of analyzing the market conditions,just in one comment.And the different attitudes towards the same type of containers' registration are more controversial.For three-dimensional trademark,the recognition of the relevant public is taken as the criterion,that is,whether the relevant public can identify the source of goods or services through the trademark.Because the relevant public cognitive is too subjective,in practice,it is judged from the external distinctiveness and secondary meaning of three-dimensional trademark.There are disputes about whether the shape of the commodity itself or the packaging shape has external distinctiveness,and what is the relationship between the unique design and the identification of the external distinctiveness.The court thinks that the relationship is a necessary but not sufficient condition,mainly based on the relevant public cognitive.Does this attitude mean that they have nothing to do with each other.These problems shall further discuss,so besides the introduction and conclusion,the paper is divided into five parts,which is arranged as follows:The first one introduces a case---“ The dispute of Dior perfume bottle's trademark registration”,which was heard by the Supreme Court in 2018,and it puts forward the problems that the author intends to study.The second part introduces the criteria for identifying the distinctiveness of three-dimensional trademark in the aspects of legislation and judicature,and discloses the problems in the course of identification.The third part firstly analyses the formation process of the relevant public cognitive and its influencing factors through different theories,and considers that the relevant public cognitive are influenced by market factors,which is changing and easy to cultivate,and the relevant public cognitive of different goods or services are different.Generally speaking,according to the nature of the industry,consumers can identify the source of goods by the shape of packaging in some industries.Secondly,the unique design of three-dimensional symbol has a good impact on the distinctiveness identification,which can make consumers identify the source of goods by the symbol.Thirdly,the factors that prevent the public from regarding the three-dimensional symbol as a trademark are analyzed,that is,the practicability or aesthetics of the shape or package affects the distinctiveness of the three-dimensional symbol,and how to distinguish their relationship is also significance.The fourth part briefly discusses evidence that can prove the standard of "higher visibility" of the three-dimensional trademark.Based on the above analysis,the paper also introduces the operability of consumer survey,including the necessity for using consumer survey in three-dimensional trademark,the influencing factors and its effect.In conclusion,I hope that the recognition standard of three-dimensional trademark distinctiveness will be more perfect in the future.