On The Trademark Distinctiveness

As the core element of the trademark,distinctiveness is the premise for it to distinguish sources of different goods or services.The reference function of a trademark allows its owner to combine a particular mark with a particular product or service and to help consumers identify the shopping according to the characteristics of each trademark itself,thereby achieving the respective interests of the trademark holder and other relevant public.Distinctiveness is manifested as the distinguishing nature of the mark and its essence is the specific link between goods and the mark.Leaving the specific commodity or service,it is just a sign.The distinctiveness of the trademark has formed with the development of trademarks,and it is the necessary prerequisite for trademarks to realize their own values.Trademarks are manifested as the combination of symbols,that is,the formal distinctiveness and the real distinctiveness,namely essential distinctiveness,generates in the using process of marks.The greater intensity of use,the stronger distinctiveness is.This paper intends to analyze the connotation and essence of distinctiveness in theory,then explore the necessity of distinctiveness in the history of trademark development,and then focus on the prominence as well as the evolution of distinctiveness to study the characteristics of distinctiveness.Finally,Combining the theory with practice and analyzing trademark acquisition system under the requirement of distinctiveness.The first part of the article is divided into three parts to analyze the connotation of distinctiveness.First of all,according to the international conventions and foreign laws of the relevant etymology and relevant provisions of Trademark Law of the People ’s Republic of China to arrange and generalize the concept of distinctiveness.Secondly,from the value of marks,we can learn that the essence of distinctiveness is to contact.Finally,comparing distinctiveness with originality of copyright and the novelty of patent in other two fields of intellectual property.The second part of the article analyzes the necessity of distinctiveness from a historical aspect.First of all,considering the acquirement of achievement of marks’ function to distinctiveness in the process of marks’ historical development.Secondly,it studies the relationship between the nature of marks and distinctiveness,pointing out that they have a great integration in the content.Again,the realization of the value of marks depends heavily on distinctiveness,and only a mark withdistinctiveness can play a role in distinguishing the source of goods.The third part of the article analyzes internal structures and evolution of marks from a micro-level deeply.Firstly,pointing out defects of a traditional classification which divides distinctiveness into inherent distinctiveness and second meaning and then introducing essential distinctiveness and formal distinctiveness to make up these disadvantages.Among them,formal distinctiveness shows external form of distinctiveness,while essential distinctiveness highlights the nature of distinctiveness.Any mark has formal distinctiveness and its strength will affect the acquisition of trademark right,and essential distinctiveness only occurs in the use of marks,no matter it has inherent distinctiveness.Then,we fully study various evolution aspects of marks,from the realization of distinctiveness to its growth and weakness,and even degradation.During this process,we especially analyze the relationship between distinctiveness and trademark dilution system.The fourth part of the article returns to practice,analyzing trademark acquisition system under the requirement of distinctiveness.First of all,arguing the basis for the protection of trademarks lies in distinctiveness,namely ensuring the realization of trademarks’ function as a tool to distinguish different sources of commodities or services.Secondly,it analyzes the rationality and necessity of the existence of trademark right acquisition system and trademark registration system respectively as well as their advantages and disadvantages.It points out that the use of trademark is the basis of distinctiveness,and because of the economic consideration of clarity of trademark right,the abstraction of trademark itself and the convenience of the trademark management,trademark registration system has its strong realistic demands.And finally it points out that regardless of which kind of trademark right mode,it’s a sub-optimal choice which based on its national conditions and legislative considerations and only mutual absorption learn from their own essences can they make up each others’ flaws.