On The Determination Of The Distinctiveness Of Three-dimensional Trademarks

A three-dimensional trademark refers to a three-dimensional mark occupying a certain three-dimensional space,which is usually composed of a simple three-dimensional mark or a combination of other elements such as text,graphics,color,and the three-dimensional mark.From the specific shape of the three-dimensional mark,it includes the three-dimensional shape of the commodity itself,the packaging or container of the commodity,and other three-dimensional shapes.As a non-traditional trademark,three-dimensional trademarks are different from traditional trademarks in terms of expression and distinctiveness,and have been the focus of theoretical and practical attention in recent years.My country’s "Trademark Law" in 2001 clearly stipulated the registrability of three-dimensional trademarks.At present,there are still many theoretical arguments surrounding the registration requirements of three-dimensional trademarks,such as:Does the three-dimensional trademark itself have inherent distinctiveness? How to determine the inherent distinctiveness and acquired distinctiveness of a three-dimensional trademark? What are the factors that affect the recognition of distinctiveness of three-dimensional trademarks,etc.In practice,the enthusiasm of relevant subjects to apply for registration of three-dimensional trademarks has been continuously improved,and the number of applications for three-dimensional trademarks has also increased year by year.However,from the current point of view,the legal provisions of my country’s "Trademark Law" on the determination of the distinctiveness of three-dimensional trademarks are still not perfect.Legislative and judicial systems,targeted to solve problems in practice.This paper starts with the development status of three-dimensional trademarks in my country,draws on the legislative experience of relevant countries,and conducts research on the issue of the distinctiveness of three-dimensional trademarks.The research issues have strong pertinence and theoretical and practical significance.Based on the basic theory of trademark distinctiveness determination,this paper discusses the basic theoretical issues such as the factors for determining the inherent distinctiveness of three-dimensional trademarks and the standard of proof for obtaining distinctiveness.analyze.On the basis of the previous analysis,combined with the specific situation in my country,to improve the determination of the distinctiveness of three-dimensional trademarks in my country,specific suggestions are put forward from two aspects: inherent distinctiveness and acquired distinctiveness: to improve the determination rules of the inherent distinctiveness of three-dimensional trademarks,first of all,for the identification of three-dimensional trademarks The inherent distinctiveness of the shape of the product and its packaging should not be completely denied.Secondly,the meaning of the relevant public should be clarified and a reasonable definition should be made.In terms of obtaining the distinctiveness of a three-dimensional trademark,first of all,the standard for obtaining distinctiveness should be clearly defined,that is,the use of a unique Correspondence standard;secondly,it is suggested to apply the consumer questionnaire to ensure the objectivity of the evidence method;finally,the specific standard problem of clear popularity is put forward.