Research On Trademarkability Of Three-dimensional Signs With Practical Functions

At present,there are disputes in theory and practice whether the three-dimensional symbol with practical functions has the possibility of being registered as a three-dimensional trademark,that is,whether it should be protected by trademark law.Some scholars argue that if the three-dimensional symbol has a practical function,then this practicality is beyond the scope of trademark protection.It is believed that the protection of this kind of three-dimensional symbols may result in the monopoly of the technology of producing this kind of three-dimensional symbols with practical functions,restrict the free competition in the market,and damage the public interests of the society.Therefore,if the three-dimensional symbol has a practical function,it must rule out the qualification of trademark registration.However,this concern is only a possible situation,not a predicament that the trademark law protection of three-dimensional symbols with practical functions is bound to face.Some scholars argue that whether a three-dimensional symbol with practical functions can be trademarked or not should be judged according to the specific situation.Under the premise of not damaging the public interests of the society,if the three-dimensional symbol with practical functions dose have the function of distinguishing the source of goods,then the protection of this kind of distinguishing function is in line with the requirements of trademark law.In practice,there are three-dimensional symbols with practical functions that have been approved to be registered as three-dimensional trademarks,and there are cases confirming the qualification of trademark registration of three-dimensional symbols with practical functions.In this article,through the analysis and comparative study of the historical dimension of trademark protection,the author explains that the essence of trademark protection is the protection of private rights,while the essence of restricting practical functions is the necessary transfer of private rights to maintain the freedom of competition in the public domain.It is not inevitable that three-dimensional symbol with practical functions cannot be trademarked,which needs to be further discussed according to the specific situation.In the author's opinion,it is necessary to protect the relevant stakeholders in the public domain by limiting the practical functions under the following circumstance.The three-dimensional symbol formed purely based on the technical effect should not be placed in the field of private rights protection.Because,if such shapes are given trademark status,it is indeed possible for the supplier of the goods to continue to extend the term of trademark protection through continuous renewal,and to achieve the practical technological monopoly by preventing the only shape that has the technical effect from falling into the public domain.This directly breaks the boundary between trademark protection and patent protection by using the trademark law to circumvent the patent protection period system.However,it is not advisable to deny the qualification of trademark registration of three-dimensional symbols with practical functions when it does not result in technological monopoly and does not harm the public interests.Saliency is the only condition of trademark ability examination in the field of trademark law,which is the judgment standard to measure whether a trademark can be registered or not.When a three-dimensional symbol is a product shape that is necessary to obtain the technical effect,the qualification of trademark registration should not be denied if an alternative shape solution is available and the cost does not exceed the rational expectation of other providers of similar products.When the three-dimensional symbol is the shape of the container or package,decoration and decoration closely related to the commodity,if it does have the function of distinguishing the source of the commodity,then the qualification of trademark registration should not be denied.In the specific judgment of the qualification of trademark,the utility function is one of the factors that affect the differentiation of the origin of goods,rather than the only factor.It should first examine whether there is inherent distinctiveness.Even if there is no inherent distinctiveness,it cannot be used as a reason to deny the qualification of trademark registration.It needs to further examine whether there is secondary meaning through use.When examining whether it has secondary meaning through use,it is also necessary to clarify the division of the corresponding special burden of proof and the survey method of relevant public perception.If the holder of three-dimensional symbols with practical functions took their burden of proof,proved to have practical function of the trademark use three-dimensional symbols,and through the questionnaire survey in related public perception to distinguish goods source,then it should be determined that it has secondary meaning after use and has the qualification of trademark registration.