Research On The Standard Of The Distinctiveness Of Sound Trademark

With the development of business and the progress of information technology,enterprises are no longer satisfied with the traditional text or graphic trademarks when promoting goods or services,but aim at the fields of television broadcasting and internet,and spread their products or services further through sound.Therefore,after the new trademark law recognizes the registrability of sound trademarks,a large number of voices that have been used for a long time have applied for registration as sound trademarks,and with the increase of demand and the emergence of the consciousness of right holders,the number of applications for sound trademarks is increasing However,from the current application examination practice,it can be seen that the number of applications for sound trademarks is increasing day by day,but the number of successful applications is very small.Most of the reasons for the rejection of sound trademark applications are that "the evidence provided by the applicants is not enough to prove that the applied trademark has obtained remarkable distinctiveness after use".In addition,in practice,there are cases in which the administrative organs of trademark examination and judicial organs have different examination logic and determination of distinctiveness for sound trademarks.The provisions on sound trademarks can be found in Trademark Law,Regulations for the Implementation of Trademark Law and Standards for Trademark Examination and Trial.The former two only provide for the registrability and formal examination of sound trademarks,and the examination of distinctiveness mainly depends on the sixth part of the Standards for Examination and Trial of Trademarks.It is not enough to deal with the increasingly complex practice of trademark examination by excluding some voices without distinctive features through negative enumeration.Therefore,it is necessary to refine the current standards for examining the significance of sound trademarks in order to form a perfect examination system,provide self-reference for trademark applicants,improve examination efficiency and promote the development of sound trademarks in China.This paper is divided into the following six main sections for the study:The first part is the introduction,which mainly introduces the background,existing theoretical research and the purpose of writing.From the extremely low success rate of sound trademark registration in China,it can be seen that the examination of sound trademark is relatively strict,and the examination of sound trademark is divided into formal and substantive examination,and the current examination dilemma mainly lies in the substantive examination stage,and then clarifies the purpose of writing:to study and improve the sound trademark distinctiveness standard in China based on analyzing the deficiencies of sound trademark distinctiveness determination.The first chapter is the current status of the recognition of sound trademark distinctiveness.On the one hand,China’s current Trademark Law and its supporting regulations provide for the distinctiveness of sound trademarks in a more principled and less directive manner;on the other hand,the determination of distinctiveness is cautious in the administrative examination,which only recognizes the acquired distinctiveness of sound trademarks;in judicial decisions,the general provisions of the Trademark Law on distinctiveness are applied,and considering the overall auditory perception of the sound itself.The second chapter is the analysis of sound trademark distinctiveness determination.On the one hand,analyzing the shortcomings in the legislation from the current sound trademark legal system:the lack of prohibitions on registration of generic sounds,unclear meaning of functional sounds,and the unclear examination criteria for acquired distinctive features.On the other hand,through the analysis of typical cases of sound trademarks,such as the Xiaomi sound trademark case,the Tencent sound trademark case,and the Chengdu Anjie sound trademark case,concluding that the problems in the current examination practice:different examination standards between trademark offices and courts,confusion between distinctiveness and originality,and neglect of consumer survey reports.Finally,it concludes that the imperfection of the distinctiveness determination standard leads to the divergence of distinctiveness determination in practice,and proposes to improve the distinctiveness standard of sound trademarks in China by drawing on the experience of foreign law and combining it with the application practice in China to return to the determination of distinctiveness.The third chapter is the reference to the legislation on the distinctiveness of sound trademarks in foreign countries.The United States,Australia and the European Union,which are more mature in sound trademark protection,are selected as the objects of study,and the inspiration for China is proposed.Firstly,the United States recognizes the inherent distinctiveness of sound trademarks.Analyzing the U.S.General Electric case and the Ride The Ducks case,proposing that we can learn from the U.S.division of sound into inherent and acquired distinctive sound,and describe inherent distinctive sound as unique,not similar and not easy to imitate.Secondly,the EU provides more detailed criteria for obtaining distinctiveness,and can draw on the provisions to consider the finer aspects of acquired distinctiveness.Thirdly,Australia classifies sound trademarks according to the strength of distinctiveness,and proposes that such classification idea can be borrowed to establish a distinctiveness classification review model by taking the trademarkization phenomenon of advertising language in China as a breakthrough point.The fourth chapter is a suggestion to improve the determination of the distinctiveness of sound trademarks in China,which follows the second and third chapters and proposes improvement measures.First,the three-step examination process of "preliminary perception-generic selection-comprehensive comparison" should be used to determine and prohibit generic sound registration.Second,clarify the definition of functional sounds and add negative enumerations based on the way functional sounds are made.Third,refine the examination criteria for obtaining distinctiveness.First,quantify the duration of continuous use of sound trademarks to five years;second,clarify that the examination of the mode of use should include factors such as the frequency of commercial activities,the scope of use,the market share of enterprises,and the amount of investment in advertising;and finally,introduce relevant public questionnaires to obtain consumer perception.Fourth,to unify the examination standards of administrative organs and judicial organs in the mode of classification examination,and to combine the current situation of trademarkization of advertising language,propose to divide sound trademarks into human voice reading class and other classes of sound trademarks,with the former undergoing dual examination of inherent distinctiveness and acquired distinctiveness,and the latter undergoing a single examination of acquired distinctiveness.Fifthly,to solve the confusion between distinctiveness and originality with typical cases or existing judicial experience.Finally,the concluding part is a brief summary of the whole paper.