Research Under Trademark Law On Issue Of Assessment On Generic Name Of Product

Trademark with distinctiveness plays important role in distinguishing the source of goods, reducing consumer cost on search, and guaranteeing fair market competition by protecting trademark owners’ goodwill through their normal business operation. On contrary, generic name is the general appellation of a certain kind of goods or service, whose role is to distinguish the category of goods, to transfer the primary attribute of goods or service to the market in a quick way rather than the information of owners. Trademark is the “private property” of owner, who is entitled to the exclusive right of registered trademark in China. Trademark is the competitive advantage of the operator. Generic name is a term used in public domain, which is the common resource of the whole society so that everyone could use it arbitrarily to refer to a particular kind of goods or service without being liable for it. Therefore, it becomes significant to assess generic name correctly in the case of ambiguousness occurs in the issue whether a term belongs to trademark or generic name.From the judicial practice, I find that lawsuits filed to court are in large quantity while results of the judgment are sometimes quite different. A lot of appeal and overruled retrial highlight the weakness in assessment of generic name in present in China. In the article, the author would give a brief introduction of the current situation of Chinese judiciary, based on which varieties of criteria and the practice in the U.S. would be discussed. Then the author would point out the primary principle and suggestions in assessing the generic names after combining the trademark law and other judicial interpretations so that it could improve the settlement for this assessment issue.Both empirical and comparative analyses are used in writing the article. The whole thesis is divided into three parts as introduction, body and conclusion, of which the body has four chapters.Chapter I, theoretical meaning of generic name. In order to well understand generic names, the author will first look up into judicial interpretations and international treaties to inspect the accurate definition of generic name, and enrich the understanding of the concept by exploring its basic characteristics. Then, by comparing some concepts that easy to cause disputes with generic name, the author would confirm the legal status of each concept to lay the foundation for the following analysis in the thesis.Chapter II, the present judicial situation and problems occur in assessment of generic name in China. The author has generalized and make empirical analysis on the typical cases occurred in practice in China, and summarized the reasons through different sort for cause of action, and further move to figure out the main problems in our current judgment.Chapter III, factors analysis in assessment of generic name. The author would analyze requirements established in cases in the U.S. Then the author has combined related factors existed in judicial interpretations and judgment, including national or industrial standard, reference books, government documents, publications etc., and focus on analyzing the regionalism and standardability in assessment of generic name.Chapter IV, the principle and improvement of assessment of generic name. The author would elaborate on 2 principles as “relevant public” and “benefit-balanced” principle based on the previous research, and propose that primary significance test in “relevant public” should be the key point of all the factors. And then the author would make some suggestions and supplement to our current practice to improve the settlement in assessment of generic name.