Research On The Legal Protection Of Position Mark

Position mark is a visibility mark used to distinguish the source of goods or services,which is used in a specific location of a designated goods or service place.It is the product of the diversificated commercial activities and market competition.As a new type of trademark,it condenses the investment and goodwill of operators.However,due to the traditional trademark theory,its protection process is bumpy.Due to the lack of social cognition,it is difficult to become an independent type of trademark;due to the lack of legal protection and different judicial protection attitudes,it is difficult to obtain comprehensive protectionIn view of this,it is necessary to conduct in-depth and systematic research on the practical disputes,theoretical issues,extraterritorial regulations and protection modes of the position mark.This paper adopts semantic analysis,logical analysis,case analysis,comparative analysis and value analysis,and devotes itself to analyzing and solving problems in five chapters:The first chapter introduces the basic theory of position mark.First of all,on the basis of the existing concepts,this paper analyzes the concepts from multiple perspectives,finding out their shortcomings,and points out the special meaning and relationship of the two elements of position mark-"location" and "logo".Secondly,the type is the middle ground between abstract concept and concrete fact.The type of position mark need to overcome the over abstract disadvantage of its concept,and it takes the inherent distinctiveness of logo as the standard of position mark classification to overcome the defect of existing classification.Finally,it puts position mark in the whole trademark system,one is to distinguish it from other trademark;the second is about its legal status in Chinese legal system.The second chapter focuses on the theoretical basis of the position mark protection.The essence of trademark is symbol,and the specific form of trademark evolution should conform to the general law of semiotics theory.Semiotics theory is not only a powerful tool for trademark system analysis,but also a theoretical basis for supporting trademark system.At the same time,the legitimacy of the position mark protection should resort to the philosophy of law,that is,the legal protection of the position mark conforms to the requirements of justice,the position mark conforms to the equality of time in the evolution of trademark types;the position mark,as a non-traditional trademark,conforms to the equality of space under the trend of international registration and protection.The second chapter focuses on the theoretical basis of position mark.The essence of trademark is symbol,and the specific form of trademark evolution should conform to the general law of semiotics theory.The function of position mark lies in its ability to identify and distinguish the source of goods,while the core of the protection of position mark lies in the generation and growth of acquired distinctiveness.At the same time,the legitimacy of position mark protection should resort to the philosophy of law.The legal protection of position mark conforms to the requirements of justice,and position mark conforms to the equality of time in the evolution of trademark type;the position mark-a nontraditional trademark,conforms to the equality of space under the trend of international registration and protection.The third chapter discusses the protection elements of the position mark.Under the condition of obtaining trademark registration,a mark can only become a trademark protected by law if it meets the essential and formal requirements of the trademark law.The essential elements of the position mark include distinctiveness,nonfunctionality and separability;the formal elements are how to describe and distinguish the position mark,mainly text description and graphic description.At the same time,based on these,through case analysis,we find the problems and dilemmas in the specific application of the legal protection elements of the position mark.Chapter four explores the possibility of transplanting the position mark in China’s mainland by referring to extraterritorial legislation and international treaties.This paper reviews some international treaties and the legislative and judicial status,like Europe,America,South Korea and Taiwan,and summarizes valuable experience of legal protection of position mark.System comparison is only a means,and legal transplantation is the purpose.By using the foreign system for reference,we find the system risk and system feasibility in the process of legal transplantation,and avoid and resolve the possible risks from the perspective of legal system,social economy and consumer psychology,and finally integrate the position mark into the legal system of our country.The fifth chapter discusses the multiple legal protection means of the position mark in China.The trademark law is the most important and comprehensive means of protection.It is the most direct way,but also an ideal way,for the position mark to be included in the trademark law to be clearly defined.The trademark examination is the administrative law regulation of trademark application and registration.The specific provisions of the administrative normative documents on the position mark are efficient and appropriate.The judicial system is the last line of defense in the process of trademark protection,the judicial trial experience summary of the position mark is the most urgent way,but it is a reference way.As a well-known commodity packaging and decoration,it can be supplemented by the anti-unfair competition law;at the same time,as a kind of personal interests,it can resort to the tort law,which is for bottom line protection.