Study On The Judgment Of Generic Names Of Goods

Generic names of goods mean the names of a genus of products, which distinguish different products but not sources. Generic names of goods possess three characters. First, generic names are public resources and should be retained in public domain. Second, generic names can neither identify nor distinguish different sources. And last, they are not normative. Here, generic names are legal concepts, but not daily languages. To judge whether some term is a generic name or not, we must consider with the articles which the term is used on. And we also should pay attention to the marketplace where the term is used.It is distinctiveness which makes a registered mark different from a generic name. And it has two meanings, one of which means special while the other means being able to distinguish different sources. In our country, the Trademark Law doesn't tell how to deal with a registered mark's changing towards a generic name, which causes a mess. Because of trademark infringements, a registered mark may come to be generic. In this case, the mark should be judged losing its trademark status and becoming a generic name, unless the owner can prove there is no omission with him.The variety names of new varieties of plants should be judged as generic names. Only having been authorized a plant variety right, can the breeding operator appropriate the variety name. As generic names, variety names should be public sources and not registrable.When judging generic names through distinctiveness, we should consider some factors, including the relevant public, the reference standard and the examination scope. The relevant pubic means who does or may purchase the goods in the marketplace, while it also concludes operators or manufacturers in some concrete situations. And as to the reference standard, national standards and industry standards can only be preliminary evidences in judging generic names, which can be overthrew by other stronger evidences. So are the opinions of professional reference books and dictionaries. When judging generic names, the examination scope should be limited in some area rather than the whole nation.In judicial practice, courts often place too much emphasis on the terms' legal statues as registered marks, which leads to a lot of controversial judgments. A Judicial Determination Institution in generic names should be constructed, which directly authorizes courts to determine whether the terms are generic names or not. And it makes courts consider the actual characters of registered words. Nevertheless, the Judicial Determination Institution should be applied in most but not all cases. Otherwise, some principles should be followed when applying such a method.