Study On The Aesthetic Functionality Of Three-dimensional Trademarks

Due to their capacity to confer ‘ eternal ' protection on product shapes,three-dimensional trade marks seem to defy the basic tenets of intellectual property.The underlying reason is that the application for registration of three-dimensional trademark involves the conflict and coordination with the patent right,as well as the impact on the public interest.Article 10 and Article 11 of the trademark law in our country regulate the prohibitive conditions for trademark registration.Specially,according to Article 12,a three-dimensional mark which is merely a shape arising from the characteristics of the commodities or a shape of commodities required to obtain technical results or a shape which gives the commodities substantial value shall not be registered.Therefore,to get registered successfully,three-dimensional trademarks must also be non-functional.It is also known as the functional principle that a functional three-dimensional sign is not allowed to be registered as a three-dimensional trademark.The identification of aesthetic functionality of three-dimensional trademarks is a common problem of trademark law for all countries,and the related practice in our country is also in the process of continuous evolution.Courts refuse the registration of three-dimensional trademarks basically on two grounds: one is to apply the standard of distinctiveness to determine the registrability of a trademark,the other is to consider the functionality issues of three-dimensional trademarks while drawing theconclusion that the aesthetic impression of such shapes does have a certain impact on consumer's decision when purchasing a certain product,but it is not the decisive factor,thus denying the existence of aesthetic functionality.The first reason has totally no idea of the independent value of the substantial value theory to the three-dimensional trademarks.The second reason considers the competition policy improperly with logic defects of the argument and lacks proof of the market practice which is the basis of the consumers' purchase behavior.There is no legal basis to totally repudiate the aesthetic functionality of the three-dimensional trademarks.If the sign is so attractive that its aesthetic value may lead to the purchase of consumers,then the sign is examined under the theory of aesthetic functionality.It's appropriate to apply a separate identification criteria.This article will go through an in-depth analysis of the methods adopted by the Chinese Trademark Law in dealing with the problems related to the three-dimensional shape with aesthetic functionality.The lack of explanation of the concrete meaning and operation method of aesthetic functionality of three-dimensional trademarks is worrying.The functional doctrines of China come from the relevant provisions of the European Union,but it is rarely applied in practice for a couple of reasons,and therefore corresponding practical implementation rules haven't been able to be put forward.However,with the development of modern technology,producers not only attach importance to the promotion of quality,but also carry out a wide range of the development of shapes for the products or packaging,so that their products can stand out and become an important selling point of goods.In this case,whether or not these shapes should obtain trademark registration depends on the in-depth interpretation of this clause.This article will make a thorough analysis of the approach used in the practice of authorizing trademark rights in China when dealing with the issues of the aesthetic functionality of the three-dimensional trademarks.With an analysis of the concept,independent value and standards of three-dimensional trademark registration,it is expected that the aesthetic functionality theory of three-dimensional trademarks can be further explored.This paper is divided into four parts.In the first part,this paper tries to explainthe concept of aesthetic functionality,and then expounds the independent value of aesthetic functionality from the view of the relationship among aesthetic functionality,distinctiveness and utilitarian functionality of three-dimensional trademarks.Distinctiveness and aesthetic functionality should not be confused with each other.The distinctive element of a trademark does not make aesthetic functionality theory unnecessary.The distinctiveness of a trademark is a general term for the identification and differentiation of a trademark.Aesthetic functionality refers to the fact that features are functional and thus cannot be protected as trademarks,because these features provide competitive advantages other than utility and are necessary for effective competition in relevant markets.The reason why the distinctive sign can obtain the trademark protection is the information value condensed in the sign.Protecting such value can bring loads of benefits,such as reducing the cost of searching,protecting consumers from being confused by the source of goods,protecting the goodwill of commercial groups,encouraging producers to maintain the high level of quality of goods and promoting free competition.The requirement that trademarks should not be aesthetically functional reflects policy concerns that protecting product characteristics under trademark law would inhibit competition.The second part explains the legitimacy and absoluteness of prohibiting the registration of three-dimensional trademarks with aesthetic functionality.The first aspect focuses on the reasons why three-dimensional trademarks with aesthetic functionality cannot be registered,respectively from three perspectives: the value of trademarks,the maintenance of free competition and the prevention of permanent copyright and design patents.According to the provisions of Article 9,Paragraph 3,of the interpretation of several issues concerning the examination of administrative cases of trademark confirmation and authorization,aesthetic functional trademarks can meet the distinctiveness requirement in two ways,one is with inherent distinctiveness,and the other is to prove to obtain the second meaning.Marks that do not have inherent distinctiveness can acquire their distinctiveness through long-term use as trademarks.The second aspect rebut this interpretation and put forward that aesthetic functionality cannot be overcome by the existence of distinctiveness.A functional feature can neverbe protected by a trademark,regardless of the possibility of being distinctive.In addition,the fact that a sign is functional doesn't necessarily mean it's generic.In other words,there are cases where the commercial appearance is distinctive because it indicates the source of the product,but it is still invalid due to its functionality.The third part will explore the methods of deciding aesthetic functionality from two aspects,respectively,consumers' purchase motivation and competition necessity standard with reference to relevant examinations of trademark registration.To decide whether the characteristics are competitive,the alternative design should be considered and the relevant product market should be defined.When it comes to the alternative design,we should consider not only the quantity but also the quality of the alternative design.Attention should be paid in defining the relevant product market.If the relevant market is defined too broadly,it is almost impossible to define functionality.Distinctiveness is based on the view of ordinary consumers.If consumers regard the mark as an indication of the source of the product,then the mark is distinctive.On the contrary,if consumers do not rely on the mark to identify the source of different products,the mark is not distinctive.The examination of aesthetic functionality is based on the interests of competitors.Courts investigate whether monopolizing a distinctive feature or set of distinctive features diminishes or deprives the ability of competitors to compete.Trademark protection will not be granted for public policy reasons even if the evidence indicates that consumers have associated the product characteristics of a function with a single source.The fourth part will give some suggestions to improve the interpretation of several issues in the process of administrative examination of trademark rights,so as to make the provisions on the prohibition of registration of three-dimensional trademarks which are aesthetic functional more operable.