Research On Examination Elements Of Motion Mark

The new trademark law in our country has become effective on May 1, 2014.It expands its adjustment object. Article 8 of the new trademark law2 expands the type of trademark in China from traditional to nontraditional, such as: color trademark, sound trademark, the words "such as" indicate that all trademark that which is eligible for the trademark registration no matter the type, such as motion mark, position mark and hologram mark. Motion mark has its unique charm with its intuitive visual impact and its “dynamic”, caused a widely attention of the scholar all around the world, and so do I.In chapter one, the author will research the definition and type of motion marks. The author does research and analysis on the definition of motion marks which is brought forward by Chinese scholar, Taiwan scholar and American trademark manual of Examining Procedure. Refer to the existing motion marks, the author will summarize its characteristics give its definition. In the aspect of the classification of the motion mark, the author adopt the classification of motion marks which was put forward by Lesley Matty, who divided motion marks into three categories, respectively as moving image trademarks, moving aspects of the product itself and gesture mark.In chapter two, the Procedural requirements and Substantial requirements of abroad will be researched. This chapter contains two sections. The first section is about the Procedural requirements of the motion marks in Australia, American, European, Canada and Taiwan. In American, the applicant may submit a drawing or a square drawing that contains up to five freeze frames showing different points in the movement, and must provide a detailed written description of the motion mark. In European, the applicants just need to provide the drawings. In Australia, The applicant must submit clear representations and a description of the motion mark which can clearly describes all the features of the motion mark. A copy of the actual trademark, for example a video clip, is needed. In Canada, the application must include(i) an accurate drawing or drawings of the mark;(ii) a description that clearly defines the scope of the mark; and(iii) a statement that the mark is either a motion mark or a hologram. Where it is not clear whether an application is intended to cover a motion mark or a hologram, the Office will ask the applicant for a written clarification. In Taiwan, the drawings, description and specimen are needed. The first section is about the substantial requirements of the motion marks abroad. Two cases will be introduced by the author, the first is the Twentieth Century Fox v. Twenty-first Century Fox to show the judge of similarity, another is the Lamborghini OHIM Appeal to show how to judge the functionality.In chapter three, the author will conceive the Examination Elements of Motion Mark in China. This chapter includes two sections. The first section is about the Procedural requirements. Go through the analysis of chapter two, the author cannot agree more with the practice of American, Australia, Canada and Taiwan and so divided the Procedural requirements into drawings, descriptions and specimen. Another section is on the Substantial requirements, and the author will discuss it from the significance and the identification method of similarity determination will be studied.The last paragraph is the ending of the thesis. Although motion marks has been slowly rise around the world, the new trademark law amended last year still does not bring the type of motion mark into the scope of protection. The author thinks that it is closely connected with the practice Of motion mark registration in China that the motion mark has not arisen yet in our country. So the author advices that we should not be eager to bring motion mark into the trademark law, the day take it into protection is that the actual application of motion marks is accumulated to a certain number.The innovation of this paper is the researched subject. In China, The researches on the non-traditional marks are mainly focusing on sound mark, flavor mark and color marks and so on. But add the Motion Mark into the protection domain of Trademark Law is the trend of the future, so the author chooses motion as the researched subject. Another innovation point of the thesis is the combine with the trademark practice and theory of the international protection of motion mark, discuss the formal requirements and substantial requirements of motion mark. In addition, the author looks forward to providing reference for the modification of the trademark examining procedure in the future.