Research On Recognition Of Distinctiveness Of Three-Dimensional Trademark

The recognition of the distinctiveness of the three-dimensional trademark of the shape of product and package has experienced a long and tortuous development process in various countries.China's trademark practice has negated the inherent significance of these two types marks in recent years for two reasons.Firstly,the design creativity of these two types is irrelevant with its inherent distinctiveness proving.Secondly,it denies the probably of inherent distinctiveness of these two types for the reason that relevant people will not perceive them as trademark for granted.Negating the inherent significance of these two types is neither in line with China's trademark legislation nor in line with market competition policies.The creative elements in the originality have important reference significance for the distinctive identification of trademarks.With the concept of originality,the implicit rules in the saliency recognition of three-dimensional trademarks can be found,that is,the rules applicable to common marks are excluded.When the rule applies,the allocation of the burden of proof can be treated differently according to different fields.It is not advisable to judge the inherent salience of a three-dimensional trademark based on the close relationship between the trademark and the designated goods or services,because the two are not equivalent.There is a logical contradiction in the argument that the relevant public's inherent cognition hinders the cognition of commodity sources.Relevant public cognition is a practical proposition,which is related to commodity characteristics and related consumer markets.On the issue of obtaining distinctiveness,the three-dimensional trademark and the flat trademark apply different standards,and the higher-profile standards proposed for the three-dimensional trademark are too strict and have no applicability.Perfecting the three-dimensional trademark to obtain significant judgment criteria,the use mode,market situation and consumption level can be considered as factors,which will in fact affect the relevant public's judgment on the shape of the product and package as a trademark cognition.The evidence from the consumer questionnaire is positive for the relevant public cognition.It can reduce the discretion of administrative law enforcement and judicial system as much as possible.The number of people surveyed and the questionnaire survey can be determined according to the local economic level and the distribution of personnel.