| Since the introduction of electronic media into the international community,sound markers have appeared in advertisements of goods and services in various industries.Sound markers enable consumers to quickly identify goods or services.With the growth of international trade,market participants in various industries have gradually realized that in international practice,the main factors for the recognition of the saliency of sound trademarks are not the same.There are many disputes about the identification of saliency,and even some countries do not agree with sound as a trademark,which hinders the development of trade.Trademark owners' desire to acquire the protection of trademark rights for non-traditional trademarks such as sound has become more and more intense.The prominence of sound trademarks can quickly convey information about the source of goods or services,quickly attract consumers' attention,and then enhance consumers' impression of goods or services.This advantage is more reflected in media advertisements and advertising without commodity support.Sound trademarks are generally simple and short prompts.Compared with graphic trademarks,text trademarks and other visible trademarks broadcast in the last few seconds of media advertisements,sound trademarks can achieve a pre-emptive function and quickly transmit the source of advertising goods or services.The dominance identification factors of sound trademark mainly include consumers' perception and division of sound nature.Competitor relationship has not yet become the main identification factor or important reference factor of the trademark examination organ.For consumers' perception,the region,time and use factors should be adjusted to adapt to the increasing number of sound trademarks.As for the division of sound nature,both EU and Australia have formed their own characteristics.Australia's approach to the division of sound essence can be popularized internationally.EU pays more attention to the procedural requirements for the division of sound nature.The constituent elements of the competitor relationship include the definition of the relevant market and the determination of the scope of legitimate use.Based on the current research situation and the provisions and practices of international treaties and foreign legislation,this paper analyses the problems and shortcomings of the existing international legal rules and practices in the recognition of the saliency of sound trademarks,with a view to providing practical suggestions on the international protection of the saliency identification in the registration of sound trademarks.This paper is divided into the following four chapters:Chapter 1 introduces the sound trademark and its saliency,clarifies the particularity of the recognition of the saliency of the sound trademark,there are many differences between the sound and other objects of trademark rights,and there are differences between the inherent saliency and the acquired saliency in the recognition of the saliency of the sound trademark,which are more reflected in the unfair requirements for the recognition of saliency.Finally,the development and limitations of international treaties on the recognition of the saliency of sound trademarks are put forward.This development and limitation is based on the principle of independence of the Paris Convention,which also determines the regional of intellectual property from another angle.How to weaken the restriction of regional intellectual property rights on sound trademarks in the new environment is also a problem.Chapter 2 explains the legal basis,subjective requirements and objective considerations of consumer perception,and analyses the composition and value of the relationship between competitors.Although it can play a positive role in the identification of saliency,it is in the secondary position of the three elements.A comparative study is made on the application of consumer perception as the main determinant of the saliency of sound trademarks between China and the United States.Although both countries take consumer perception as the main institutional framework,the United States is gradually transiting from the second meaning rule to the first standard rule,which is different from the framework of China with the rule of saliency as the core.In the practice of using consumer perception,consumer perception and sound practicability constitute the primary criterion,and there is a difference between the application of the second meaning and the significance obtained.The use of consumer perception has advantages,such as clear regional requirements,clear time requirements,and can also reflect the formation process of sound trademark rights.However,the increase of regional requirements does not meet the trend of dilution,fixed-time requirements do not belong to legal restrictions,and use requirements should not become the premise of identifying the saliency of sound trademarks.Finally,consumer perception ignores the positive role of competitor relations in the identification process.Chapter 3 illustrates the classification and attribute requirements of three types of sound properties,compares the classification of Australian and European Union sound properties as the main factors of the identification of the saliency of sound trademarks,and interlaces the legal provisions of the United States,China,Egypt and Brazil to make a comparison.In the identification of the factors of sound properties,the practice of Australia and the European Union is the rule determination.More support was provided.Australia divides sound quality according to its saliency.EU and its member states pay more attention to the expression of sound markers.It is advantageous to identify saliency by using sound property,which plays a positive role in establishing the legal status of sound trademark,can effectively avoid confusion between saliency and trademark function,and provide a basis for establishing the expression of saliency.In order to increase the operability of sound classification,the identification process can be combined with trademark use factors,while establishing a combination of description and graphics.Chapter 4 discusses the methods and suggestions for the recognition of the saliency of sound trademarks.The constituent elements of consumer perception can be divided into three parts: geographical factors,time factors and use factors.In the period of increasing demand for sound trademarks,the improvement of the rules for three factors can more effectively identify the saliency of sound trademarks.Specifically,appropriately recognizing the extraterritorial effect of sound trademarks,deciding the use time by the relevant market,and treating the use requirements of trademarks fairly are all adjustments.For the improvement of the division of sound properties,we can increase the sub-classification of environmental sound and adjust the formal requirements of expression.The new identification of the relationship between competitors can be determined by increasing the proportion of the identification of the relationship between competitors and using substitution analysis to define the relevant market and legitimate use.The perfection of using three elements to identify the saliency of sound trademark in China mainly includes three aspects: fair treatment of the use requirements of trademark,increasing the practical rules of dividing the nature of sound,and guiding the application of competitor relationship in the identification of saliency.The non-traditional trademark nature of sound trademark is especially its own advantages.In the process of being used,sound trademark can form a high sensitivity to consumers.Without visual visibility,consumers and competitors can feel that sound is a kind of mark that can distinguish the source of goods or services and the supplier of goods or services,that is,to feel the trademark nature of sound.? Such setting can provide a higher level of protection for transnational trade and transnational economic strategic arrangements,reduce the different outcomes of transnational trade and transnational economic strategic arrangements due to different systems,and also reduce the difficulty of identifying consumers and competitors for the unification of their goods or services.However,there are many problems in the legislation and practice of the rules for recognizing the saliency of sound trademarks,and more perfect and effective rules need to be put forward to solve the problems in the recognition of saliency.However,there is no possibility of unification in the legislation and practice of sound trademark in the short term,which is also one of the conclusions of this comparative study.If there is no possibility of unification,we must make clear that all the rules are based on the mainstream countries which have already made legal regulation on sound trademark and have problems in the identification of saliency.As mentioned above,this paper mainly chooses the United States,China,the European Union and its member countries,Australia,several countries(regions)with high legal level and practice level of sound trademark to conduct comparative study and draw their own comparative conclusions.This comparative conclusion can better reflect the advantages and disadvantages of several rules for the recognition of the saliency of sound trademarks,and put forward a perfect plan for the shortcomings.The dominance identification factors of sound trademarks mainly include consumers' perception and the division of sound nature.Competitor relationship has not become the main identification or reference factor of the trademark examination organ at present.For consumers' perception,the adjustment of their geographical,time and use factors is not only applicable to sound trademarks.The author believes that all forms of trademarks should be treated in the same form or procedural requirements.Therefore,proper recognition of their extraterritorial effects,the use time decided by the relevant market and fair application of the "use" requirement will help to improve the current prominence.There are still differences in the application of consumer perception between China and the United States,but the shortcomings of the "primary standard rule" and the "gain saliency rule" are similar and need to be adjusted in practice.The author thinks that we should put forward a new discussion on the rules of recognizing the saliency of sound trademarks.The dominance identification factors of sound trademark mainly include consumers' perception and the division of sound nature.Competitor relationship has not become the main identification or reference factor of the trademark examination organ at present.For consumers' perception,the adjustment of their geographical,time and use factors is not only applicable to sound trademarks.The author believes that all forms of trademarks should be treated in the same form or procedural requirements.Therefore,proper recognition of their extraterritorial effects,the use time decided by the relevant market and fair application of the "use" requirement will help to improve the current prominence.There are still differences in the application of consumer perception between China and the United States,but the shortcomings of the "primary standard rule" and the "gain saliency rule" are similar and need to be adjusted in practice.With regard to the division of the nature of sound,both EU and Australia have formed their own characteristics.Australia's approach to the division of the essence of sound can be popularized internationally.Because of its high practicability,it is a challenge for legislation,but it can guide the registration practice of sound trademarks.The EU pays more attention to the procedural requirements for the division of sound properties,which are of great practical significance for the international registration of sound trademarks,and also play an active role in the recognition rules of other countries.The constituent elements of the competitor relationship include the definition of the relevant market and the determination of the scope of legitimate use.Referring to the alternative method and the principle of free use in the anti-unfair competition law,we can identify the market share,market control and market concentration to determine whether it belongs to the functional sound,the high-correlation sound in the environmental sound and so on.In a word,the identification of the saliency of sound trademark should first apply the three elements synthetically.The inverted triangular structure of the three elements determines its application level.Although it does not affect the application order,the application level determines that consumer perception is the basic factor of the whole identification.Secondly,it breaks through the shortcomings of the three identifying elements and improves them with a view to providing a new path for the international protection of sound trademarks. |
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