Research On Trademark Acquisition Under The Dynamic Characteristics Of Trademark Distinctiveness

Trademark distinctiveness is one of the objective elements for trademark registration and it is also the basic category of trademark law.However,there is strong subjectivity and discretion of judgement factors when related to trademark distinctiveness,resulting in different authorization standards for trademark authorization,confirmation,and trademark infringement disputes.Actually,the trademark distinctiveness,constantly changing with the trademark using,has the dynamic characteristic.In particular nowadays,the problems of trademark "pre-registration" and "hoarding" brought about by the trademark registration system of our country are becoming more and more prominent.Therefore,emphasizing the importance of trademark using in the trademark registration acquisition system is helpful to solve the above problems.However,nowadays,both the establishment of trademark system and the study of trademark distinctiveness are from a static perspective,leading to the practice of determining the distinctiveness of the trademark in the real-time factual state of the trademark is considered to be inconsistent with the trademark system,which causes fierce controversy.The existence and strength of trademark distinctiveness are related to the trademark acquisition and the scope of trademark rights.Therefore,it is practical to recognize the dynamic changing characteristic of trademark distinctiveness and to study the problems from this perspective.From the perspective of the dynamic change characteristic of trademark distinctiveness,this paper combines the cases of the dynamic characteristic of trademark distinctiveness that effecting trademark acquisition and the scope of trademark rights,and related legal provisions,studies on trademark acquisition of different subjects due to the dynamic characteristic of trademark distinctiveness.This paper also discusses the influencing factors of the scope of trademark rights under the dynamic characteristics of trademark distinctiveness,in order to balance the trademark acquisition of different interest subjects.It is proposed that the principle of prohibition of trademark right abuse should be applied in conjunction with identifying the subjective malicious of trademark owners,instead of denying the claim for damages of non-used registered trademark.On the other hand,it is necessary to strengthen the protection of unregistered trademark and allow the prior users of unregistered trademarks to invoke different rights and interests according to trademark distinctiveness changes to protect their own rights and interests,so as to return to the essence of trademark system.