Study On The Judgment Criteria Of The Aesthetic Functionality Of The Three-dimensional Trademarks

As an exclusive private right,the trademark right has a longer protection period than the copyright and the patent right,and in principle can be renewed indefinitely without invalidation or revocation.Behind such a strong monopoly right,the value of trademark is to identify the supplier of commodities or services and reduce the cost of consumer identification.However,not all marks with distinctiveness can be protected as trademarks.When the marks have a strong sense of aesthetic appeal to consumers,the granting of trademark rights should be cautious.According to the trademark law of the People’s Republic of China,the registration of three-dimensional trademarks is restricted by some specific circumstances,including those with aesthetic functionality.Therefore,the registration of three-dimensional trademark should not only meet the requirements of distinctiveness,but also be subject to aesthetic functionality examination,and the three-dimension mark that is identified as having aesthetic functional should not be registered.This is what we call aesthetic functionality theory.The application of aesthetic functionality theory may lead to the conclusion that the symbol is too beautiful to be protected.This seemingly absurd logic reflects the important value of aesthetic functionality theory.First,aesthetic functionality theory aims to ensure that the basic function of a trademark is to identify the source,not to protect the aesthetic sense;second,some stereoscopic logos can be protected under copyright and patent laws if they meet the conditions,finally,from the basic intention of trademark law,the unreasonable competitive advantage brought by aesthetic sence should be eliminated,and the Good Market Order can be guaranteed.Therefore,the aesthetics functionality theory focuses on the degree of which beauty should be excluded from protection.The identification of the aesthetic functionality of three-dimensional trademark is a common problem in trademark law of various countries.First of all,in terms of legislation,China’s legal provisions on aesthetic functionality are found in the trademark law and the trademark examination and hearing standards,but the current legislative provisions are too shallow,neither the concept of aesthetic functionality nor the criterion of judgment have clear and operational provisions.Second,in China’s judicial practice,the court tends to respond to disputes over three-dimensional trademark in a distinctiveness way,lacking an answer to the aesthetic functionality problem,this kind of behavior shows that the understanding of aesthetic functionality theory is not deep enough.This paper attempts to demonstrate the controversy and judgment mechanism of the aesthetic functionality theory,and puts forward some suggestions on the judgment standard of the aesthetic functionality theory of threedimensional trademarks,so as to further enrich the theoretical study of aesthetic functionality theory in China,promoting the progress of functional legislation in China.The full text is divided into four parts.In the first part,the author introduces the controversy concerning the judgment of the aesthetic function of the three-dimensional trademark.Firstly,the author introduces the divergence about the criterion of aesthetic function.Secondly,the author points out the problems in the process of judging the aesthetic functionality of three-dimensional trademarks in China.In the second part,the author analyzes the theoretical basis of the aesthetic functionality of three-dimensional trademarks.First,the author analyzes the legitimacy of the aesthetic functional theory and explains the institutional value of the aesthetic functional theory.Secondly,the author analyzes the independence of aesthetic functional judgments,distinguishes aesthetic functional judgments from distinctive judgments and practical functional judgments.In the third part,the author proposes a new model for judging the aesthetic functionality of three-dimensional trademarks.After analyzing the main aesthetic functional judgment criteria,a more reasonable judgment principle is proposed by the author,that is,taking into account the "competitive needs" and "consumer purchasing motivation",and adopting the principle of comprehensive review of aesthetic functionality.In the fourth part,the author makes suggestions to improve the relevant regulations on the aesthetic functionality of three-dimensional trademarks in China.There are still some problems in the implementation of the aesthetic functional system in China.In this regard,relevant suggestions are put forward from the legislative and judicial levels in order to make the aesthetic functional system more operational.