Determination Of Distinctiveness Of Foreign Language Trademarks

Foreign language trademarks mainly refer to trademarks with foreign language elements that are not easily perceived by the relevant public in the country of registration.In recent years,the growing internationalization of trade brings about the increasing number of trademark applications in China.This paper takes the distinctiveness of foreign language trademarks as the research object.Starting from the analysis of the judicial status of administrative disputes in refusal of review of foreign language trademark applications in China,this paper launches an investigation of practical cases.It is obvious that there are several problems concerning the judgement on distinctiveness of foreign language trademarks in our country based on the characteristics and classifications of foreign language trademarks,including inconsistent understandings of general terms and descriptive trademarks as well as arcane regulations with “other signs lacking distinctiveness” and “obtained distinctiveness through use”.Based on language features of foreign trademarks and consumer cognition,the distinctiveness determination of foreign language trademarks should depend on domestic consumers' cognitive level.By considering whether the foreign language mark belongs to a domestically used language,if the applicable premise is satisfied,categorization can be used for reference.Although article 11 in Trademark Law of the People's Republic of China(2013 Amendment)stipulates the situations about trademarks lack of distinctiveness and the approach to get acquired distinctiveness,this article is a general provision.When it comes to the judgement of one certain trademark,this article is inadequate and comprehensions of some relevant articles from executive authority and judicial authority are required.In order to make the distinctiveness determination more objective and scientific,this paper holds that it is essential to apply the traditional rules such as the integrative rule,the combination of goods and services rule,and the relevant public recognition rule.When necessary,the doctrine of foreign equivalents and the figurative trademark recognition applied by classification maybe more suitable with consumer cognition.This paper holds that the distinctiveness determination of foreign language trademarks should be based on domestic consumer perception.Dealing with a language which domestic consumers familiar with or widely required,such as English,distinctiveness can be determined by the translation of the vocabulary.However,for trademarks made up of French and German similar to English but unfamiliar to consumers,or Thai and Arabic with artistic appearances,distinctiveness identification according to the translation may deviate from the actual perception of the relevant public.Instead of merely focusing on the translation and meaning,foreign language trademarks considered distinct or not in their original context should be analyzed according to specific situations in individual cases combined with the ascertainment rules of distinctiveness in the case that the relevant public in our country does not and will not understand the meaning of those marks.Combining the different types of foreign language trademarks,this paper puts forward suggestions for distinctiveness determination from the perspective of trial basis,including being strict with the identification of generic names,being reasonable about the meanings of vocabulary,and being cautious of the evidence of use.At the end of this paper,consumer survey as a social investigation mechanism introduced,which is conducive to reducing subjective elements,contributes to a judgement based on objective evidence and improves the level of foreign language trademark distinctiveness determination and the efficiency of administrative and judicial authorities.Through the analysis of foreign language trademark itself,the investigation of the current judicial status quo,and the discussion of the determination rules,this paper puts forward some suggestions for determining the distinctiveness of foreign language trademarks with a view to providing some clues for the distinctiveness judgment of foreign language trademarks in China.