Research On Judicial Determination Of The Distinctiveness Of Three-dimensional Trademarks

In China,the regulations on the registration of stereoscopic trademarks mainly focus on the trademark law,the regulations on the implementation of the trademark law and the standards for trademark examination and trial.The law stipulates that the registration of stereoscopic trademarks needs formal examination and substantive examination,in which the significance is an important factor for substantive examination.The trademark law stipulates that registered trademarks must have distinctiveness,and some trademarks without distinctiveness can also obtain distinctiveness after being used.Due to the principle of legislative provisions,the cognizance of three-dimensional trademark is not consistent in judicial practice.At the beginning of the trial,the court of our country thought that the three-dimensional logo which is different from the common or general shape has significance.Later,it thought that the design of a unique logo can not prove that it has significance,and it needs other evidence to prove that it has significance.In determining the significance of three-dimensional trademark,we should first make clear the attitude of three-dimensional trademark registration,which should be treated with caution or tolerance.Then,taking the representative cases as the research samples,this paper analyzes the problems existing in the judicial practice,such as the relationship between the unique design of the application logo and its inherent significance,and whether it can directly calculate the significance of the logo;Whether it is necessary to have a higher popularity when identifying the trademark’s significance;What is the degree of evidence to be significant;How to scientifically define the scope of the relevant public and how to identify the cognition of the relevant public.We can learn from the experience of the United States and the European Union,and combine with the actual situation of our country,put forward the following suggestions:according to the industry characteristics of some signs and the cognitive psychology of the relevant public,increase the possibility of inherent significance;When determining the significance,the time,scope and actual effect of three-dimensional signs should be considered.