Research On The Determination Of Distinctiveness Of Sound Trademarks

The sound trademark became the object of protection of China’s Trademark Law since May 1,2014.For the first time in China,the non-visible mark was protected by law.This is a huge improvement.It can not only increase the types of trademarks in China,but also enrich the practice of trademark protection.It can also promote the integration of China’s trademarks with the international market and promote the development of the market economy.Because the sound trademark is intangible,dynamic,and indirectly combined with commodities,the Trademark Office does not have a mature system when reviewing sound trademarks,which makes the registration rate of sound trademarks in China very low.Before October 2018,there are only about 20 sound trademarks were registered.In the registration review of sound trademarks,the most important thing is the determination of distinctiveness.The criteria have been in the process of exploration,and there is no clear conclusion.The Trademark Law and the Regulations for the Implementation of the Trademark Law do not provide special stipulations for the distinctiveness determination of sound trademarks.It is far from to deal with the need for practical operations by simply relying on negatively enumerated methods in the "Trademark Review and Trial Standards" to exclude sounds that do not have significant characteristics.Therefore,it is necessary to develop a set of distinctiveness criteria for the determination of sound trademarks as soon as possible.This article takes Tencent’s sound trademark case as an example.By summarizing the focus of dispute,it summarizes the problems existing in the determination of distinctiveness on China’s sound trademarks,that is,the determination criteria of inherent distinctiveness and acquired distinctiveness is not clear and the determination criteria of functional sound is not perfect.Based on the analysis of the status quo of China’s legislation,by comparing the sound trademarks with the traditional trademarks,the criteria common to the traditional trademarks and the unique criteria of the sound trademarks in the determination of distinctiveness are summarized.By examining the practice of judging the distinctiveness of foreign sound trademarks,I suggest that increase the inherent distinctiveness of sound trademarks,and improve the determination criteria of functional,versatile and descriptive sounds,and pay more attention to the acquired distinctiveness review of sound trademarks.Another is to judge whether the second meaning arises from the perspective of the relevant public.This article starts with the Tencent’s sound trademark case,and combines related papers,monographs and cases to study the judgment of the distinctiveness of China’s sound trademark.The main contents of the article are as follows:The first part introduces the basic situation of the selected cases in this article,and summarizes the focus of the dispute,that is,whether the originality is a significant judgment standard;the judgment standard of functional sound;how to prove the "second meaning" after use.The second part introduces the characteristics of sound trademarks,and compares the traditional trademarks to summarize the universality and particularity of sound trademarks in the judgment of distinctiveness.The third part mainly discusses the inherent distinctiveness of sound trademarks from four aspects: “uniqueness”,“non-functionality”,“non-universality” and “non-descriptiveness”.The fourth part mainly discusses the acquired distinctiveness of the sound trademark from the judgment and restriction of the "second meaning".The fifth part is mainly some suggestions for the improvement of the rules for judging the distinctiveness of sound trademarks in China.A set of effective determination criteria is very important for the registration practice of China’s sound trademarks.While absorbing foreign useful experience,we must also contact our own actual situation,in order to sum up the determination criteria of distinctiveness that is really suitable for China’s sound trademarks,so that more sound trademarks can enter the market to shine.