Research On The Distinctiveness Of Trademark

The property of trademark to identify the commodity or service provided by the operator and distinguish difference commodities or services provided by different operators,is the distinctiveness of trademark,also known as distinct character of trademark,and the identity or distinctiveness of trademark.Actually,it is a hub that connecting the trademark owner and the object of trademark use,also it is the core in the realization ofthe basic function of trademark.After "We Chat" trademark case went through the objectionexamination,review and administrative proceedings,the final focus of the dispute in the second instancefocus on inherent significance of the "WeChat" trademark.Questions that the case leaves for this article include,firstly,the analysis of inherent distinctiveness in Trademark Registration Acquisition System.Secondly,the analysis of the impact of the later use of trademark on the prior application.The traditional theory of distinctiveness of trademark is mainly based on the duality between of "inherent distinctiveness" and "acquired distinctiveness",this distinction corresponds to two kinds of methods to access distinctiveness.The first,one symbol possesses inherent distinctiveness.The second,one symbol obtains acquired distinctiveness by using.In the trademark registration acquisition system that has been design,it is reasonable to put forward inherent distinctiveness theorybased on above-mentioned classification and the justifications of enforcement costs theory,the legislative objectives of trademark registration acquisition system and the balance of the public interest.Inherent distinctiveness,as a theoretical classification of distinctiveness of trademark,it achieve mutual convergence with the practice of right acquisition system and the review rules.In our Trademark Registration Acquisition System,on one hand,the later use of trademark doesn't change the rule of distinctiveness reviewof the prior application.In addition,the later use of the trademark and the consequence of distinctive connection does not lead todeficiency of distinctiveness of the prior application of trademark,it isn't one of the absolute reasonsthat rejecttrademark registration.On the other hand,the significance of the date of application and the applicants' interests of reasonable expectations and reliance which rely on the value of Procedural Justice precede over the later use of the trademark and its acquired distinctiveness.Therefore,compare with the later use of trademark,the prior application that qualified inherent distinctiveness should be taken seriously by Trademark Law.This system not only conforms to the legislative objectives of the trademark registration system,so as to maintain Trademark Law which posses the character of competition law and commercial law,and the anticipationand stability of its basic system and principles and safeguard the orderly competition in the market.Legal value of Procedural Justice should be protected on the basic of following the rules.For the case of The "WeChat" trademark,it does not belong to descriptive mark,and it's a suggestivetrademark.The later use of Tencent companynever makes the mark lack of distinctiveness,thus the prior application from CuangBoYa Taicompany complies with all elements of trademark registration application,based on the legislative choice ofTrademark Law,as well as China'strademark registration system and the corresponding primary applicationprinciple,the prior application of CuangBoYaTai Company has no need to give way to the later use of Tencent company,the trademark application for registration of "WeChat" trademark from CuangBoYaTai Company shall be approved.The article contained five parts:Part One:The introduction of this case whcih is about the “Wechat” trademark disput,not only the first and second instane of this case,also its shift and focus of the contentious issue.,and put forward questions about the follow two aspects,one is inherent distinctiveness in Trademark Registration Acquisition System,the other one is the impact of the later use of trademark on the prior application.Part Two:This part clarified the fundamental theoriesof distinctiveness to prepare for the ensuing chapters,such as the definition of distinctiveness of trademark,the classification of distinctiveness,theoretical foundation of distinctivenessand so on.Part Three:Part Three:This part is the discussion of inherent distinctiveness in Trademark Registration Acquisition System.Specifically,Analyse “the distinctiveness” that acknowledged by Trademark Registration Acquisition System,and contrast it with the common theory of distinctiveness,this paper find they can't link up with each other.Therefore,the way to solve the trouble is to redefine the concept of distinctiveness to the ability to identify the source includes a practical one and a potential one.so that it can achieve the coordination of the concepts between distinctiveness and inherent distinctiveness in Trademark Registration Acquisition System.In addition,the requirements to distinctiveness in the trademark registration stage of our Trademark Registration Acquisition System usually present as the examination of inherent significance of thetrademark which applying for registration.It means that the function of identify the source that inherent distinctiveness points to is possibility.Base on the above-mentioned design,the current judicial judgment way to distinguish suggestive mark and descriptive mark is when thetrademark which applying for registration belongs to normal expression that the applicants use to describe a certain meaning of specified commodity or service,we view the mark as a descriptive mark,otherwise,we view it a suggestivetrademark.The way to recognize the cognition of the relevant public is by means of judging whether the thetrademark which applying for registration is the normal expression for the market operators.Part Four:This part focus on exploring the impact of the later use of trademark on the prior application.There are some questions including the impact of the later use of the trademark after the date of application to distinctiveness of the prior application,and the prior application can resist the later one and achieve trademark registration.Specifically,about the first question,the later use of trademark doesn't change the rule of distinctiveness reviewof the prior application.In addition,in China's trademark registration procedures,the later use of the trademark and the consequence of distinctive connection does notcause deficiency of distinctiveness of the prior application of trademark,because the distinctiveness of thetrademark which applying for registration in the trademark registration stageonly requires thetrademark has inherent distinctiveness,and deficiency of distinctiveness is one of the absolute reasonsthat rejecttrademark registration,and the prior applicant of the trademark and the later user of itor a similar trademark in the same or similar commodity or services lead toissues of relative trademarkinterests conflict.About the second question,in the trademark registration acquisition system that has been design,clarify and reiteratethe validity of the date of application,while emphasizingthe applicants' interests of reasonable expectations and reliance,this paper emphasize that the significance of the date of application and the applicants' interests of reasonable expectations and reliance which rely on the value of Procedural Justice precede over the later use of the trademark and its acquired distinctiveness.Make sure that when the prior application meets all the registered requirements,include inherent significance,the identity and interests of the later using is no match for the entitlement of the prior applicant.Trademark Law has expressly chosen the above-mentioned rules.Part Five:This part will return to the discussion of the case of The "WeChat" trademark.Based on the above analysis,this part will clarify the "We Chat" trademark is a suggestive trademark,and CuangBoYaTai Company has no need to give way to the later use of Tencent company,the trademark application for registration of "WeChat" trademark from CuangBoYa Tai Company shall be approved.