Research On The Distinctiveness Determination Of Three-dimensional Trademarks

"Trademark Law" has clearly stipulated the registrability of three-dimensional trademarks since 2001.However,the distinctiveness determination of three-dimensional trademark registration has always been a difficult point in practice.The status quo of the significance recognition of three-dimensional trademark in China is that,first,be lack of guiding provisions on the recognition of three-dimensional trademark significance,second,the standards of administrative review and judicial judgment under the dual system of trademark right confirmation are inconsistent.The article points out that the inherent distinctiveness of three-dimensional trademarks is closely related to the uniqueness of trademark.The distinctiveness theory of traditional trademarks distinguishes the strength of inherent distinctiveness of trademarks based on the uniqueness of the trademark itself.However,when judging the inherent distinctiveness of a three-dimensional trademark,the uniquely designed three-dimensional shape makes it easier for the relevant public to believe that there is a stable correspondence between the trademark sign and the source of the product or service.But uniqueness is not equivalent to trademark distinctiveness.In addition,it is not appropriate to simply deny the inherent distinctiveness of three-dimensional trademarks on the basis of relevant public cognitive habits which is lacks both legal basis and sufficient argumentation.Therefore,when judging the inherent distinctiveness of a three-dimensional trademark,it is necessary to fully consider the uniqueness of the trademark design,the characteristics of the product itself,the relevant public perception and the market situation,the detailed rules of "common or commonly used shapes",and scientifically determine the relevant Public perception habits.The article also believes that in order for a three-dimensional trademark to gain distinctiveness,the relevant public should establish a unique and stable correspondence between the mark and the source of the product.Although the certification conditions for obtaining distinctiveness of three-dimensional trademarks in my country are the same as those for traditional trademarks,the certification standards for obtaining the "second meaning" of three-dimensional trademarks are relatively high.At the same time,the use of three-dimensional shapes will also affect the "second meaning" of three-dimensional trademarks.The use of three-dimensional trademarks should be based on the relevant public's three-dimensional recognition of their existence.The "familiarity" standard of three-dimensional trademarks should be clarified,and the relevant public "degree of awareness" standards should be used to determine that it is more appropriate to obtain distinctiveness,and the use of three-dimensional trademarks should be regulated to make the judgment method clearer.