The Research Of A Function Judgement Of Three-dimensional Trademark

Since China joined the three-dimensional trademark system in the Trademark Law in 2001,the number of applications for three-dimensional trademarks has increased dramatically,but the number of successful registered three-dimensional trademarks is far less than that of flat trademarks.The main reason is that three-dimensional trademarks need not only significant,but also non-functional elements.However,there are no perfect legal provisions on non-functionality,and there are still many controversial issues on how to judge non-functionality.The author hopes to put forward some exploratory ideas for judging non-functionality by combing and summarizing the functional judgment of stereoscopic trademarks.This paper first returns to the purpose and value essence of the establishment of stereoscopic trademark system,clarifies the concepts of stereoscopic trademark and function,and points out that the application of functional theory to the restrictive conditions of stereoscopic trademark is conducive to clarifying the institutional boundaries of trademark law and patent law,protecting the free use of public domain marks in trademark law,and safeguarding the legislative purpose of fair competition in trademark law.Secondly,how to judge the three-dimensional trademark function at home and abroad is studied from three aspects: legislative status,administrative review status and judicial status.It summarizes the multi-standard judgment model of the United States and the fact judgment model of other countries represented by the European Union,and points out the problems existing in the current situation of our country.Then,it clarifies the nature and function,the practical function and the aesthetic function of the three-dimensional trademark in the process of functional judgment.Among them,when judging the function of nature,we should pay attention to the difference between the function of nature and saliency,which includes the nature of nature and the nature of industry general standards,and should be distinguished from the general shape;when judging the function of utility,we should understand that the standard of "practicality" is lower than the practical requirement of patent law,and that expired inventions and utility model patents can be used as factors to judge the function of utility instead.The existence of design can not deny function;on the judgment of aesthetic function,this paper affirms the existence of aesthetic function,but advocates that aesthetic function should be mainly applied to special commodity categories.The understanding of substantive value should include aesthetics and value.On this basis,even if a failed design has aesthetic sense but no value,registration still exists.Possibility of three-dimensional trademark.Finally,the author proposes that we can refer to the following judgment ideas when conducting administrative review of the three-dimensional trademark function.The first step is to clarify the basic premise of the three-dimensional trademark function judgment,affirm the multiple rights attributes of the three-dimensional shape,make it clear that saliency and functionality have the same status,and pay attention to the classification judgment of commodity categories before judging.The second step is to adopt factual judgment criteria for nature function,practical advantage criteria for practical function and competitive necessity criteria for aesthetic function.