Research On Distinctiveness Of Trademark

American Trademark law authority Professor Schechter pointed out in his classic thesis"theory foundations of the protection of trademark","protecting trademark's uniqueness should be the only theory foundation of the protection of trademark.""uniqueness"here means distinctiveness. There are two traditional theories about the protection of trademark---"property theory"and"confusion-forbidden theory"."property theory"thinks that trademark is a property. Although it is different from real property right and creditors'right, it still has the attribute of property. Because trademark should be protected whenever the its owner's right is infringed."confusion-forbidden theory"thinks that the purpose of trademark protection is to protect customer from being tricked, and protect the market's rule from being destroyed. The trademark owner's right of litigation against the infringer is based on the customer's litigation of fraud, which is held in America early. However, since trademark is treated as property, and it should be protected equally, the problem which"property theory"can not explain is why the right range of different trademark is different and the same trademark is protected in different degree under the different situations; what"confusion-forbidden theory"can not explain is that why well-known trademark should be protected even under the situation that customers aren't confused. Both theories can not explain some problem that is solved by"the theory of protection of the distinctiveness of trademark". This article reveals the essence of protection of trademark from the perspective of the relationship between distinctiveness of trademark and the range of right of trademark. There are five parts in this article. The first part which is an introduction introduces background of writing this article. The important role the distinctiveness of trademark plays is deeply discussed from part two to part five. Detail content is as follow:Chapter 1 points out that distinctiveness of trademark is the basic of the right of trademark, including the influence of distinctiveness of trademark for getting and losing right of trademark. In this chapter the basic theory of distinctiveness of trademark is also systematically discussed, because the content of this chapter, especially some important concept, such as"identity of trademark"and"differentiation of trademark", is very important to the discussion of next parts in this article.Chapter 2 discusses deeply the relationship between the distinctiveness of trademark and the range of right of trademark. The range of right of trademark can be divided into two classes: the range of right of common trademark and the range of right of well-known trademark. Common trademark usually is protected by traditional confusion theory. It means that the judge on the approximation of trademark and the similarity of commodity which influents the judge on the constitution of infringement, certainly influents the range of right of trademark. How the distinctiveness of trademark influents the judge on the approximation of trademark and the similarity of commodity will be discussed in detail in this chapter. There are three theories about the protection of well-known trademarks. I will analysis and compare those theories in this chapter, and discuss the key effect of the distinctiveness of trademark for protection of well-known trademarks.Because the protection of trademark in trademark law not only consider about the distinctiveness of trademark, but also require that trademark should agree with set form. So although some trade markings have distinctiveness and function of distinguishing the source of commodity, they can still not be called trademark in trademark law. These trade markings are protected in"Law of the People's Republic of China for Countering Unfair"in our country, which calls"like-trademark"protection. Right of"like-trademark"also has close relationship with the distinctiveness of trademark, which will be deeply discussed in chapter 3.The distinctiveness of trademark is very important for strategy of company. For companies, getting monopoly in market by trademark right is their real goal. However, the range of right trademark is not always proportional to company's monopoly degree. How to properly use distinctiveness of trademark and constitute company's monopoly space will be discussed in the chapter 4.