Non-functional Review Of Three-dimensional Trademarks

When China amended the Trademark Law in 2001,it added the statement about the "three-dimensional mark",and the protection of the three-dimensional mark was clarified in Article 8.After more than ten years of development,the three-dimensional trademark has developed rapidly in China,and a relatively complete registration and protection system has been established.In real life,the number of such trademark registrations continues to increase.Different from traditional flat trademarks,compared with foreign developed countries,China's protection of three-dimensional trademarks is relatively late,and the review experience of three-dimensional trademark application registration is relatively lacking.The functional provisions on three-dimensional trademarks are mainly Articles 12 and 59 of the Trademark Law.In addition,the 2016 Trademark Review and Trial Standards also feature the functions of three-dimensional trademarks.Sex has made provisions.At present,there are two problems in the review of China's three-dimensional trademarks: one is the lack of non-functional review standards for three-dimensional trademarks,and the three-dimensional trademark administrative cases that occur in judicial practice.The courts mostly identify various three-dimensional shapes based on lack of significance.Get registered.From this point of view,the non-functional review criteria forthree-dimensional trademarks are missing and cannot effectively guide trademark review.Second,the relationship between non-functional and distinctive review of three-dimensional trademarks is ambiguous.Both are the focus of review when applying for the registration of three-dimensional trademarks.It is a prerequisite for correct justice to straighten out the logical relationship between significant and non-functional examinations..This paper introduces the extraterritorial non-functional review criteria for three-dimensional trademarks from the perspective of the non-functionality of three-dimensional trademarks.The United States subdivides functionality into functional functionality and aesthetic functionality.There are practical judgment criteria and competition necessity criteria for non-functional judgment criteria.The EU believes that the review of non-functionality should be preceded by salience,and it is also considered that for functional three-dimensional signs,even if they are used significantly,they cannot be registered by review.Japan considers the substitutability of the three-dimensional trademark in terms of substitutability.It adopts a similar "competitiveness criteria" in the United States,considering whether there are other alternative shapes,and whether other alternative shapes can It is achieved at the same or lower cost.Unlike Japan,the judgment of non-functionality in Taiwan is mainly based on the production cost or production method.If a commodity exhibits a three-dimensional shape and requires less cost and is easier to produce,then the shape is Belongs to a functional shape.This paper focuses on the non-functional review of three-dimensional trademarks,focusing on the extraterritorial practices in terms of theory and practical experience.By combining them with the actual situation in China,we strive to integrate its beneficial points into our three-dimensional trademarks.Promote the development and improvement of the system in the non-functional review system.The article is organized as follows: The first chapter introduces the current status and shortcomings of the non-functional review of China's three-dimensional trademarks.The second chapter expounds the non-functional provisions of various countries and regions,including the significance of establishing a non-functional regulation system forthree-dimensional trademarks,and focuses on the review standards for non-functionality of three-dimensional trademarks.The third chapter relies on the theory and practice of foreign countries,and proposes corresponding solutions to the shortcomings of the existing non-functional review of three-dimensional trademarks in China.The first is to establish a non-functional review standard for three-dimensional trademarks;to learn from the competition necessity standards established by the United States,and to clarify the logical relationship between significant and non-functional examinations;the non-functionality and distinctiveness of three-dimensional trademarks are separate elements.It needs to be reviewed separately,should not be mixed,and proposes to amend the provisions of Article 12 of the Trademark Law of China.