The Determination Of Distinctiveness Of Three-dimensional Trademarks

Since the introduction of the trademark law in 2001,the distinctiveness of the three-dimensional trademark has always been a hotspot and a difficult point in the debate between the theoretical and practical circles.China is cautious about the review of the distinctiveness of three-dimensional trademarks,and adopts strict standards for the determination of the distinctiveness of three-dimensional trademarks.Therefore,in practice,it is rare to register through auditing.China's judgment on the saliency of three-dimensional trademarks,from the early "industry general or common shape" rules to the "consumer cognitive habits" rules,from the beginning,it is considered that non-industry common or common shapes are significant,and gradually recognized the three-dimensional as the particularity of the trademark itself,considering the consumer's cognitive habits.However,the current standards are still not blameless.Under the standard,the inherent distinctiveness of the shape and packaging of the goods is almost negated.The examination on the three-dimensional trademarks is too strict,and the identification is too subjective and lacks objective measurability.Taking the case of "dior perfume bottle" as an example,based on the analysis of the status quo of identifying the distinctiveness of three-dimensional trademarks in China and referring to the judicial practice abroad,this paper puts forward suggestions for perfecting the three-dimensional trademark significance judgment.This paper is divided into four parts,the content is as follows:The first part is the basic case of the case and the focus of the dispute.Through the introduction of the case leads to two focus of dispute,one is the three-dimensional trademark inherent distinctiveness judgment,the focus involves the relationship between the originality of logo design and inherent distinctiveness,and inherent distinctiveness should be considered factors;Second,the determination of the distinctiveness of three-dimensional trademarks is concerned with the standards for the certification of distinctiveness,the degree of proof and the relevant evidence of the use of three-dimensional trademarks.The second part is the analysis of the judicial status quo and problems in the judgment of stereoscopic trademark significance in China.It introduces the judicial status quo of China's judgment on the distinctiveness of three-dimensional trademarks,and analyzes two problems that are prominent in the judgment of distinctiveness.One is the inherent distinctiveness of goods or packaging;the other is that the examination of the distinctiveness of three-dimensional trademarks is too strict.The third part is to discuss how to judge the distinctiveness of three-dimensional trademark.Chapter discusses two aspects: inherent distinctiveness and terms of the inherent distinctiveness,analysis of the relationship between originality and salience of trademark design,and puts forward the factors that should be considered in the judgment based on the judicial practice abroad.On the aspect of acquired distinctiveness,the specific requirements for acquired distinctiveness of three-dimensional trademarks are clarified from the perspectives of certification standard,degree of proof and evidence.The fourth part is the perfect suggestion to the three-dimensional trademark significance judgment.Put forward the factors that should be considered in the determination of the inherent distinctiveness of three-dimensional trademarks;Further elaboration on "general or common shapes in the industry";Make a standardized explanation of "the use of three-dimensional trademarks";And unify the standard for determining the distinctiveness of three-dimensional trademarks.