Research On The Distinctiveness Of Collective And Certification Marks

Collective marks and certification marks are two subordinate concepts that are special to trademarks.The collective nature of collective and certification marks plays an important role in promoting clusters of commodity producers and establishing standards for high-quality production.Collective trademarks and certification trademarks have a common benefit nature,and the realization of the trademark function of each collective trademark or certification mark will not only affect the interests of a large number of commodity producers,but also affect the choice of goods by a large number of relevant publics,so these two types of trademarks have greater economic value and social interest value.However,in reality,different entities have different understandings of the distinctiveness of collective marks and certification marks,resulting in conflicts within the rules for the protection of collective marks and certification marks,which adversely affect the protection of collective marks and certification marks.Distinctiveness is the basis for trademark protection.A trademark sign can only be protected under trademark law if the relevant public can treat it as a trademark and not a sign of any other nature.Both collective marks and certification marks have distinct trademark functions that are different from general commodity marks.Therefore,the Trademark Law regulates the distinction between collective trademarks and certification trademarks with general commodity trademarks.However,this distinction between collective marks and certification marks and general commodity marks is functional and superficial,not intrinsically different.Collective marks and certification marks are still protected within the scope of trademark law,so collective marks and certification marks must follow the same distinctiveness rules as general commodity marks.Registering a trademark that is not distinctive is bound to cause confusion among the relevant public.Trademark distinctiveness is divided into two types:inherent distinctiveness and acquired distinctiveness,and the judgment of the two should be in order.In order to better realize the function of trademarks,some collective marks and certification marks often partially or wholly adopt descriptive signs as trademark signs.Collective marks and certification marks which containing descriptive signs may be inherently distinctive by attaching an inventive picture to make the trademark mark as a whole distinctive.Trademarks that lack inherent distinctiveness can be distinctive by acquiring a "second meaning".The criterion for judging whether a trademark has distinctiveness is the ability to identify the source.Both collective marks and certification marks require the ability to identify their source in order to be considered qualified trademarks.The quality assurance function of a certification mark does not change the basis for obtaining a distinctiveness determination.The mixed nature of collective marks also does not affect the realization of the function of identifying the source of the trademark.Geographical indications collective and certification marks are a more special type of trademark within collective marks and certification marks.Geographical indications collective and certification marks must also have distinctiveness in order to realize the function of trademarks.In China’s judicial practice,there is a practice of replacing the distinctiveness element with the element of "geographical connection",which has caused great confusion among the relevant public."Geographical association" is not a substitute for distinctiveness as the basis for trademark examination.Collective marks and certification marks must be distinctive in order to fulfil their trademark function.The theory that collective marks and certification marks may not be distinctive should be corrected,and collective marks and certification marks should be returned to the protection path regulated by the Trademark Law.