The Judgment Of Trademark Distinctiveness

Trademark distinctiveness is the core of trademark protection and also serves apriority condition to obtain a permit for registration. Being the soul of trademarkprotection, trademark distinctiveness goes through different concrete systems ofTrademark Law, which plays a dominant role in design and operation.This paper mainly uses comparative analysis method, case analysis method andhistorical analysis method, starting from the definition, classification of thedistinctiveness of trademark distinctiveness and distinctiveness of trademark intrademark law, summarizes the general theory of the distinctiveness of trademark.And then analyses judgment rules and objects of the trademark distinctiveness. Thegeneral rules consist of overall judgment rules combining with practical applicationrules, goods and services judgment rules as well as the public interest judgment rules.The judgment subject of trademark distinctiveness mainly focuses on its relevantpublic. Analysis to the relevant public judged by subject is determined by specifictrademark itself.The focus of this paper is to mark the trademarks divided into inherentdistinctiveness and acquired distinctiveness to judgment. The fanciful trademark,arbitrary trademark and suggestive trademarks have inherent distinctiveness. Thejudgment of descriptive trademarks distinctiveness depends on whether thetrademarks have acquired a second meaning through using. However, the generic termcannot acquire distinctiveness to be allowed to register even if it has been used for along-term. Then, analyze the judgment of distinctiveness on several specialtrademarks on three-dimensional trademarks, color trademarks and non-visualtrademarks.Summarize a series of judicial practice from the United States and the countriesin the European Union: To judgment whether a trademark has distinctiveness, the keyis to the cognitive of the relevant consumers. The trademark can establish aconnection during the trademark and the source of goods or service in the consumermind, So that consumers can associate the goods or services on behalf of the sourcewhen they see the trademark, only the trademark which has distinctiveness canregister as a trademark. In my opinion, judge whether the trademark hasdistinctiveness, should follow a principle: Whether the trademark has distinctiveness should determine the trademark for consumers can identify the source of the goods.Because each cases involving trademark type is different, therefore in the specificdetermination should also consider the specific circumstances of the case, the finaljudgment is whether the trademark has distinctiveness.