Investigation On Infringement Of Three-dimensional Use Of 2D Trademarks

With the progress of the times and the development of technology,especially as changes in the trading market of the commodity,trademarks have gradually become a brand ambassador of commodities,enterprises and even a country,as well as one of the competitive resources.Due to the diversity of trade circulation,new ways surge in the use of trademarks as commodity marks.And the three-dimensional use of the two-dimensional trademarks is a new type of trademark infringement which occurred frequently in recent years.The essence of the 3D trademark infringement is to turn the flat trademarks into goods and put them into the commodity circulation.This kind of 3D use means that the traditional way of using trademarks has been transformed and the common understanding of trademark usage has been broken.The above phenomenon also attracted the attention of all parties in the theoretical and practical circles.In judicial practice,when dealing with the three dimensionalization of 2D trademarks infringement disputes,the biggest problem is whether the three-dimensional use of the trademark can be judged as the use in the sense of the trademark.Generally,the way how the trademarks used in the products is to attach them to the surface of the products so that the products and the trademarks are physically separated.To define the 3D use of 2D trademarks is not simply to determine whether certain graphics are trademarks,but to determine whether the act of three-dimensionalizing a registered flat trademark can be considered as a type of trademark usage.In order to clarify the essential use of the trademark,first of all,the article began from putting forward the issue of the three-dimensional use of flat trademarks,on the basis of the existing literature to sort out the background and delimit of the three-dimensional use of flat trademarks.Secondly,investigated the judicial situation of the three-dimensional use of flat trademarks in China.In concrete terms,enumerated the focus of disputes in three-dimensionalization of 2D trademarks by looking into two typical cases of "Hai Bao" and the "Angry Bird” and reached a conclusion that Whether the behavior of the three-dimensional use of flat trademarks on commodities is the use in the sense of trademarks should not be generalized,however it should take the functional value of trademarks,the subjective intentions of trademark users and the relevant public’s cognition into a comprehensive consideration before any judgement is made.Finally,on the basis of the investigation in both the judicial practice and the academic theory in terms of the judgement of the infringements in 3D use of 2D trademarks in China,and aiming to solving existing problems in the area,the author proposes suggestions such as expanding the reference ranges in using the virtual graphic trademarks and creating protection of commercialization rights of arbitrary trademarks by learning from relevant reference measures overseas.