On Trademark Right Restriction Of Generic Name Of Goods

Trademark registration requires to be compliance with the requirements of significance.Generic name text is generally excluded from the scope of the registered trademarks,but the generic name and registered trademark can be transformed under certain conditions.For example,when the registered trademark loses significance and differentiates,it is possible to degenerate into the commodity name.China's trademark law does not clearly exclude the generic name text to be registered through the use of significance,thus it can be possible to get an approval for the generic name text registration when it gets a significance by use.As long as the relevant public perception has not changed,even if it is registered as a constituent part of a trademark,it will not change the inherent meaning of the type of goods described by the generic name.A trademark registrant may not prohibit the legitimate use of a generic name by any other person.This is the restriction on the right of trademark.The system of right protection and right restriction coexist,lack of restriction can easily lead to abuse of rights,while the limitation beyond the rights protection will lead to the loss of the obligee's interests.Thus,it needs to be considered by the significance of generic name texts to judge whether it is in line with the requirements of trademark protection;the use of the generic name will not cause confusion to the source of goods and does not constitute infringement of the exclusive right to useregistered trademarks considering the constitutive requirements of infringement of trademark rights;considering the balance of the trademark registrant and the public interest,if the generic name text be listed as the registered trademark exclusive right,it is bound to affect the proper use of competitors,affecting the public on commodity identification,damaging the public interests.On the other hand,China's trademark law sets up the system of invalidation and cancellation of the registered trademarks,which can correct the generic name trademark registered by mistake and revoke a registered trademark that is commonly used as a commodity.But in view of being annulled or cancelled,registered trademark is still valid and has both rights.Generic name trademark right registration in form of right defense is what this paper researched on.The trademark law provides for a number of rights defenses,defense of non-trademark use can be applied on definition of trademark use,defense of improper use can be applied on proper use system.From the point of view of Comparative Law,this paper has outlined statements of proper use from other national or regional legal provisions to discuss the essential elements of the proper use of the generic name in China's trademark law: good faith is a subjective element of proper use,to judge whether it is a good faith is not knowing whether it is a trademark of others in an ordinary trademark infringement,but whether it has any intention of a registered trademark of another person's reputation;Objective elements of non-trademark use have been discussed further,and the basis of the judgment is whether it is used in the meaning of the generic name and whether the method of identification is in line with commercial practices.Through a large number of case studies,it is found that the problems faced by reality are far more complicated than those stipulated in the trademark law that different judgments have different standards and contrary conclusions on the determination of the generic names,even different judgments make different affirmations on different ways of using them.This paper holds that the justification of the sign users use is a kind of value judgment,involving three factors.Firstly,the dispute of whether an agreement that has regional characteristics can be commonly known as the commodity name.At present,the disputes about generic names in judicial practice mainly focus on conventions with regional characteristics,commonly known as commodity names.Agreed commodity identification difficult,the judicial interpretation is not restricted to prove the public perception of evidence so that the evidences can take a variety of forms,since there is no clear standard a lot of controversy existed.However,China has a large geographical area,many commodities have certain regional characteristics,or only in some areas of circulation,which also makes the generic names to be more complex.The identification of the generic names appears on the surface of the scope of the use of the commodity names,but in essence it is the definition of the relevant public.In this paper,according to the circulation area,it has been divided into three categories,and discussed the identification of the relevant public.The influence of the trademark registrant's identification on the identification of the generic name in judicial interpretation has also been discussed with specific cases.Secondly,whether the use of trademark registrant is sufficient to produce a distinction between commodity sources.To a certain extent,the trademark law allows generic names registered as a trademark after significant use.If the use of the trademark registrant produces the trademark's significance,the legitimate interests obtained by the long-term use of the trademark registrant shall be protected.It is the public's perception of whether or not to achieve significant judgment.Ordinary trademarks can be significantly different by use,but generic names are judged by public's perception.For this,trademark registrant shall bear higher burdenof proof,but the use of trademarks and the mode of use of trademarks are not necessarily directly related to the cognition of the public concerned.This paper argues that the improper use of trademark registrant will weaken the role of differentiating commodity sources,but the standard use of trademark registrant is not necessary to distinguish the source of commodity.This paper has also put forward several considerations for judging whether or not to achieve significance: the significance of the use of the combination trademark cannot be regarded as that of the generic name texts;the significance of trademark form cannot be regarded as that of the generic name texts;The degree of acceptance and market share of the goods cannot be regarded as that of the generic name texts;the popularity of other trademarks cannot general name trademark cannot be extended to the significance of the generic name trademarks when they are used in conjunction with each other;the manner in which trademarks and commodity names are mixed cannot simply make the generic name trademark visible by marking the registered mark;the use of a registered commodity name in a particular area and the use of a trademark registrant in other areas are not considered to have a role in distinguishing the source of the goods in the region;the honor of a trademark is not a certificate of the public that may be recognized as a trademark.Thirdly,identifies whether the use of the user is in conformity with the requirements for proper use.China's trademark law has not explicitly put forward the elements of proper use,the elements of good faith and non-trademark use are put forward in judicial practice.By comparing the proper use requirements in the trademark legal system of other countries and regions,this paper holds that good faith is a subjective requirement for proper use,the use of business practices is an objective requirement.The substantive requirement of the proper use system is that the identification of the use of the user must be the inherent meaning of the name of the goods,the use of trademarks ofregistered persons shall be avoided as much as possible,and the mode of use must also be in conformity with the mark of trademark practice.This paper has raised several considerations on the proper use of the business practices: firstly,identification of the goods used by the user is the same commodity corresponding to the general name of the commodity;secondly,whether it is necessary to identify the use of text by the user;thirdly,whether to use the logo as the name of the product and mark one's own registered trademark as well as one's own business name;fourthly,whether the form the user used is different from the registered trademark;fifthly,whether the user has highlighted the use of the logo;sixthly,whether the user has avoided the use of the trademark registrant's trademark as far as possible.Meanwhile,generic names which has regional characteristics cannot be claimed a legitimate use by everyone.When it is appropriate to use,it is necessary to prove that the goods conform to the regional characteristics of the commodity's generic name.If the goods are not from the region or are not in conformity with the geographical features,they cannot be regarded as proper use.At last,this paper also believes that due to the lack of sufficient publicity of the common name of goods and the uncertified effect of the prior confirmation on the latter case,it has increased the uncertainty of the name of the goods that can be used properly that causing trouble to operators of similar commodities.