Research On The Distinctiveness Determination Standard Of Intangible Cultural Heritage Trademarks

Intangible cultural heritage,as the manifestation of the traditional culture of human ethnic groups,has inheritability,group nature,ethnicity,regionality and vitality.The use of trademark law to protect intangible cultural heritage and encouraging intangible cultural heritage to apply for trademarks constitute an important part of the protection of intangible cultural heritage.The core of a successful trademark application for intangible cultural heritage is to satisfy the distinctive features of the trademark and to be identifiable.At present,when applying for trademarks of intangible cultural heritage,not only traditional types of trademarks,but also new types of trademarks can be considered.The key element in the identification of intangible cultural heritage trademarks is the determination of trademark distinctiveness.There are usually four types of inspection elements in the determination of the distinctiveness of traditional trademarks: the determination subject is the relevant public,the determination standard is the common cognition of the relevant public,the determination scene is actual use,and the overall determination standard is adopted.In the determination of the distinctiveness of non-traditional trademarks,an overall principle is generally adopted,which depends on the determination of the relevant public in specific circumstances.In the relevant public perception,whether it is identifiable and can identify the source of the goods.Under this key element,countries will also adopt some different and more subdivided judgment standards,which will consider time and space factors and industry attributes.In addition to the inherent distinctiveness judgment standards,the use time and Scope.By examining the extraterritorial experience in determining the distinctiveness of non-traditional trademarks,it can be seen that,first of all,the overall trend of judicial practice tends to be looser and more flexible in the determination of the distinctiveness of non-traditional trademarks.Second,the cognitive habits of the relevant public are still the core identification factor.Finally,in determining the distinctiveness of non-traditional trademarks,it is necessary to base on a completely different idea from that of traditional trademarks,and to combine the characteristics of non-traditional trademarks.My country mainly stipulates the distinctiveness criteria for intangible cultural heritage trademarks in the Trademark Law and the Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Administrative Cases of Trademark Authorization and Confirmation.However,there are some problems,specifically:The unclear connotation of generic name hinders the significance of intangible cultural heritage trademark;the significance of traditional trademark of intangible cultural heritage registered trademark is not applicable in judicial practice;There is a dilemma in the conversion of excessively restrictive and non-traditional trademark distinctiveness criteria.In this regard,my country should clarify the standard for the identification of common names of intangible cultural heritage;improve the compatibility of existing trademark classification with intangible cultural heritage,increase the application types of common trademarks,and expand the application scope of non-traditional trademarks in intangible cultural heritage;Promote more flexible and relaxed rules for determining the distinctiveness of intangible cultural heritage trademarks,and limit the inspection factors commonly recognized by the relevant public to specific markets in specific regions where intangible cultural heritage is concentrated;It provides a basis for the diversion of intangible cultural heritage standards.In the determination of "relevant public can identify the source",the possibility of confusion is examined,and the examination standard is set lower than that of ordinary trademarks,and it is set in the examination of the originality of logo Minimum ingenuity standard.