Research On The "Second Meaning" In The Trademark Law

Trademark with distinctive features and easy identification can be registered.Some signs can't be registered,because they are the name of the corresponding product or service,or the description of the objective attributes,functions of goods or services.The signs can be registered if they can be distinguished after a period of use.This obtaining significance is known as the "second meaning" of a trademark.The process of signs obtaining significance through being used is the process of creation of trademark's "second meaning".The "second meaning" rule of trademarks is recognized by the laws of many countries.Article 11 in Trademark Law stipulates that marks that are not distinctive can be registered as trademarks if they have acquired distinctive features through use and are readily distinguishable.The protection of trademark's "second meaning" can't only enhance the value of trademarks,but also maintain fair competition in the market.In recent years,the "secondary meaning" rule of trademarks has sprung out more and more new problems in judicial practice.In the sphere of application,the connotation of "other meanings" on geographical names and recognize standard of descriptive marks are not clearly defined.And the market fairness will be influenced by allowing generic name to be registered.In regard to the judgment criteria in the "second meaning" of trademarks,there are currently close connection standards in judicial practice,stronger than the first meaning standard and the unique correspondence standard,but verdicts are inconsistent due to the lack of unification of standards.There is no specific standard of proof in the method of certification,only refer to the evidence provided by the operator to certificate whether the signs are significant,which hinders the applicant from registering the trademark.The system of "secondary meaning" of trademarks in the United States is relatively perfect and has formed a series of effective rules in the judicial practice for about one hundred years.In the United States,trademark registration is carried out in the form of a primary and subsidiary book.The minimum standard of the secondary meaning for a trademark is exclusively used for 5 continuous years in essence.Regarding the sphere of application of the secondary meaning,the United States clearly stipulates the “four standards” for descriptive marks and clarifies the specific meaning of geographical indications.In terms of judgment criteria,the specific criteria are the time span of applying for a trademark registration,the operator's investment in the publicity and use of the trademark,and the efforts made by the applicant in establishing the link between the trademark and the commodity.In the proof method,American courts take use of the combination of direct evidence and indirect evidence to prove,but they mainly consider the consumer's cognition of the mark.The system of "second meaning" of trademark needs to be perfected in China.First of all,we should establish the principle of application of "secondary meaning".Secondly,define "other meanings" in geographical names,and identify descriptive marks from commodity categories,usage,and cognition.Thirdly,the judgment criteria of the “secondary meaning” for the trademark should be measured by the market participants and the market itself and must be met the unique correspondence between a trademark and a commodity with the long-term and extensive use of the trademark.Finally,consumer cognition should be taken as a key measure factor to introduce the consumer questionnaire investigation into judicial interpretation in our country.At the same time,combining with the indirect evidence like trademark's usage time and advertising will assist to prove the "second meaning".