Research On The Legal Protection Of Motion Trademarks

Thanks to the rapid development of digital industry and the popularization of image processing technology,in the trademarks strategy of the enterprise,motion trademarks are widely used by trademark owners to maximize the brand image as a marketing tool to recognize the source of goods and services,together with the traditional word trademark helps the enterprise to operate.Motion trademarks are a subtype of non-traditional trademarks,they are based on the traditional elements of the trademarks,such as text,graphics,letters,Numbers,three-dimensional logo,color,and so on,adding time process elements,mainly expressed by the changes in the movement,appearance,location and relative relations,can identify the source of goods or services.The first chapter introduces the meaning,characteristics and classification of motion trademarks.The essential attribute of motion trademark lies in the form change of its components,and the key factor that distinguishes it from other trademarks or trademark components is the time dimension.The continuity and stability of dynamic gestalt are affected by space,light,speed and other factors.Human perception of dynamic change is not a simple superposition of components,but a whole of subjective experience formed by brain processing.The motion trademark is similar to the two-dimensional logo,hologram trademark and commercial advertisement in appearance,but different in essence.The motion trademarks can accommodate the sound elements,and the pattern change has the characteristics of continuity,periodicity and numeral.According to the essential attributes of the components,motion trademarks can be divided into body language motion marks,physical Action Motion Marks,product advertisement motion marks and general feature motion marks.The second chapter analyzes the necessity and feasibility of motion trademark legal protection.The traditional trademark has been stereotyped,which not only makes it easier for competitors to imitate,but also fails to satisfy the communication function of trademark in conveying information to consumers.The expansion of non-traditional trademark elements is inevitable in the information age.To establish the motion trademarks system,on the one hand,it allows the trademark owner to convert the dynamic elements into the object of the trademark right through labor recognition,so as to protect the value of goodwill.On the other hand,it is beneficialto delimit the reasonable division of the exclusive right of trademark and balance the interests of multiple subjects with the conflict resolution mechanism.From the perspective of law and economics,the labeling source function of motion trademarks can help to share the information cost among the subjects,while the limited attention resources force trademark owners to seek more attractive factors to enhance the advertising function of trademarks.In order to adapt to the inertia of post-modern social science development,meet the sensory marketing based on consciousness experience,and meet the development needs of Internet economy and digital industry,the protection of motion trademarks has legitimacy.At present,China’s trademark examination and adjudication standards provide a reasonable ground for the development of motion trademarks system.The third chapter discusses the essential requirements of motion trademark legal protection from the perspective of significance and non-functionality.In the part of significance analysis,the motion trademark is disassembled into static components and dynamic change process,and then the brand "five points" method is used to arrange and combine them,so as to examine the significance of the motion trademark as a whole in each case from the perspective of ordinary consumers.The inherent significance of the trademark elements is not the significance in the real sense,but only the favorable conditions for the trademark to obtain the significance.In the functional analysis,the dynamic flag composed only of functional components lacks significant features and cannot obtain "second meaning".The practical function of motion trademark is judged according to the four factor standards after the comprehensive competition,mainly investigates whether there are patents related to motion trademarks,whether there are advertisements promoting practical functions,the number of alternative designs equivalent to motion trademark functions,and whether the dynamic design is derived from relatively simple and cheap product manufacturing methods.Aesthetic functional judgment adopts the standard of consumer motivation.If consumers buy products because of the aesthetic value and visual appeal of motion trademarks,then motion trademarks have aesthetic functions.The fourth chapter of this paper summarizes the motion trademark form examination regulations of the United States,the European Union,Canada and the United Kingdom,and then studies the formal examination requirements of motion trademark protection in China.Motion trademark form review includes trademark design,text description and electronic video files.The motion trademark pattern can directly reflect the content of the trademark.There shall be no limit on the number ofpatterns,which shall be used only as the basis for the payment of fees in the application for trademark registration.At the time of pattern interception,important frame sequences in the dynamic process should be selected.If necessary,the trademark applicant should be required to submit the contour lines,gray scales and multi-facted views of special dynamic objects.The text description of the trademark can help to understand the content of the constituent elements,and it is also an important evidence to verify whether there are prohibited marks in the elements,and to determine the distinctiveness,identification and non-function of the trademark.The main elements and movement forms should be included in the description of the trademark,and the parts that do not claim rights should be removed in the form of text description.Electronic documents are auxiliary materials for the examination of trademark samples.In case of disputes over rights,the drawings and text descriptions shall prevail.The fifth chapter predicts the possible motion trademark infringement and expounds the dilemma and standard of motion trademark infringement.Motion trademarks is complicated and the scope of rights is vague.When it is used in electronic media or network carriers,it is difficult to ensure the identity of constituent elements.Opportunists may misbehave and abuse the exercise of trademark rights.Based on the advertising value of motion trademarks,associative confusion of trademarks may occur in practice,and even the significant dilution or loss of well-known motion trademarks may occur.The identification of the possibility of motion trademarks confusion should not only make an overall analysis from the three aspects of the sound,shape and meaning of the trademark,but also make a separate comparison between the most significant or easily attract the attention of consumers.The significance of motion trademarks is not directly related to the similarity of trademarks.In the identification of trademark infringement,the defendant’s subjective malice plays a decisive role.Once the malice is established,the possibility of trademark confusion is established accordingly.When relying on the trademark legal system to solve the dilemma of motion trademarks infringement,the anti-unfair competition law or the tort liability law can provide supplementary relief.