Research On The Recognition Of The Distinctiveness Of Sound Trademark

Article 8 of the trademark law,which came into force on May 1,2014,included sound into the elements of registrable trademarks for protection.After the amendment of the trademark law,the trademark office and the trademark review and appraisal board immediately added the sound trademark examination standard in the sixth part of the trademark examination and hearing standards.By May 20,2020,the number of applications for the registration of sound trademarks has reached 749,and only 29 have been successfully registered,with a success rate of 3.87%.The rate of registration can reflect that the current examination system of sound trademark is not mature.The trademark examination department has both formal examination and substantive examination in the examination of sound trademark.As a kind of trademark,the sound trademark should have the distinctive characteristics to distinguish the source of goods or services,so as to play the role of trademark identification.According to the different sources of distinctiveness,the traditional distinctiveness theory divides the distinctiveness into intrinsic distinctiveness and acquired distinctiveness.In the determination of trademark distinctiveness,the two are progressive relations.It is inherently distinctiveness if the relevant public hears a sound and the trademark is neutral in its mind in associating it with the provider of a good or service.For a sound trademark without inherent distinctiveness,it can be registered by proving that the trademark has been used for a long time to enable the relevant public to identify the source of goods or services,that is,it has acquired distinctive features.In the study of the specific identification standards of the distinctiveness of sound trademarks in China.In the practice of the review,review the administrative department of the trademark office and the trademark review and appraisal board merely on the trademark review and hearing standards specified "in general,the sound subject to use for a long time to get distinctiveness of trademark " to complete the review,one-sided use only gain distinctiveness standards,require the applicant to prove sound trademark has obtained remarkable characteristic,through long-term use denies sound trademark also inherent distinctiveness.Moreover,the trademark review and appraisal board for obtaining distinctiveness is not clear.In the reexamination decision of rejecting the applicant,the commercial judges only concluded that "the evidence provided by the applicant is insufficient to prove that the trademark of the application has acquired distinctive features through use",and never discussed the specific judgment reasons.Through the analysis of the status quo of legislation and practice on the recognition of the distinctiveness of sound trademarks in China,there are some problems in the recognition of the distinctiveness of sound trademarks,such as inconsistent recognition standards,lack of inherent recognition methods,and unclear recognition standards.In order to solve the above problems,improve the recognition standard of the distinctiveness of sound trademarks in China,and explore the practical experience of Australia,the United States,the European Union and other countries and international organizations,it is found that because the sound was listed as one of the elements that can be registered in China,the protection of sound trademarks has been relatively mature.While affirms the inherent distinctiveness of a sound trademark,Australia grants the examiner greater discretion in determining how much evidence to submit and whether it is registrable based on the characteristics of the sound.On the basis of affirming the inherent distinctiveness of sound trademarks in the United States,the acquired distinctiveness is applied to determine the distinctiveness of sound trademarks in progressive stages.Specifically,consumers' questionnaire survey is adopted to judge the familiarity of relevant public to determine whether the trademark has acquired distinctiveness.On the other hand,the eu's examination on the distinctiveness of sound trademarks requires the use of sound as a trademark to instruct the providers of goods or services,so that the relevant public can identify the source of goods or services.After analyzing the problems existing in the process of determining the distinctiveness of sound trademarks,this paper,based on the experience of Australia,the United States and the European Union,puts forward specific suggestions for improving the distinctiveness of sound trademarks in China.First,a unified standard for the recognition of trademark distinctiveness should be established,which can be achieved by amending the trademark law implementation regulations,jointly introducing a unified standard for the recognition of trademark by administrative and judicial organs,and strengthening the communication and learning of trademark registration between administrative and judicial organs.Secondly,when determining the distinctiveness of a sound trademark,it is necessary to adhere to the judgment standard of the inherent distinctiveness theory and consider the originality factor of the sound trademark.Finally,it is suggested to further clarify the applicable standard of acquiring distinctiveness judgment,to investigate the recognition role of sound trademarks in commercial use,to quantify the duration of use required for sound trademarks to obtain distinctive features,and to introduce a consumer questionnaire system to judge the familiarity of the relevant public.Administrative and judicial organs may,according to the actual situation of the trademark use,start from the above elements and decide whether a sound mark has obtained distinctive features and be registered after comprehensive consideration.