I. Relevant Legal Provisions
Article 8 of the Trademark Law stipulates that "any sign that can distinguish the goods of a natural person, a legal person or other organization from the goods of others, including words, graphics, letters, numerals, three-dimensional symbols, color combinations, and sounds, and combinations of the above elements, may be applied for registration as a trademark. application for registration."
Article 9 stipulates that "a trademark applied for registration shall have distinctive features, be easily recognizable and shall not conflict with the legal rights acquired by others in advance".
Article 10 stipulates that: the following signs shall not be used as trademarks:
(1) identical or similar to the national name, national flag, national emblem, national anthem, military flag, military emblem, military anthem, or medals of the People's Republic of China*** and the State of China, as well as identical to the names and symbols of the central government organs, the names of the specific places of their locations, or the names and graphics of the landmarks of their buildings;
(2) the same or similar to the national name, flag, coat of arms, military flag, etc. of a foreign country, except with the consent of the government of that country;
(3) the same or similar to the name, flag, coat of arms, etc. of an international intergovernmental organization, except with the consent of the organization, or is not likely to mislead the public;
(4) the same or similar to the official symbols, inspections, seals, etc., that indicate that the implementation of control or guarantee. (d) identical with or similar to the official symbols, test marks, etc. indicating the exercise of control or the giving of guarantees, unless authorized to do so;
(e) identical with or similar to the name or emblem of the Red Cross or Red Crescent;
(f) ethnically discriminatory;
(g) deceptive or likely to mislead the public;
(h) misleading or likely to mislead the public;
(i) misleading; and ) is deceptive and likely to mislead the public as to the quality and other characteristics of the goods or their place of origin;
(viii) is detrimental to socialist morality or has other adverse effects.
The names of places in administrative divisions above the county level or foreign names known to the public shall not be used as trademarks. However, the name has other meanings or as a collective trademark, certification mark component except; already registered trademarks using the name of the place continue to be valid.
Article 11 stipulates: "The following signs shall not be registered as trademarks: (1) those which only have the common name, figure or model of the goods; (2) those which only directly indicate the quality, main raw material, function, use, weight, quantity and other characteristics of the goods; (3) those which lack distinctive features. The signs listed in the preceding paragraph can be registered as trademarks if they have acquired distinctive features through use and are easy to recognize."
Article 12 stipulates: "Where an application is made for the registration of a trademark by a three-dimensional sign, shapes produced only by the nature of the goods themselves, shapes of the goods which are necessary for obtaining a technical effect, or shapes which give the goods substantial value, shall not be registered".
Two, trademark distinctiveness
Trademarks are composed of words, graphics, letters, numbers, three-dimensional symbols, color combinations and sounds, as well as a combination of the above elements. Trademarks should have distinctive features and easy to identify, generally excludes generic names, graphics, the main raw materials, functions, uses, weight and other signs that can not distinguish the source of goods or services. Trademark distinctiveness jurisprudence can be divided into inherent distinctiveness and the use of distinctiveness, inherent distinctiveness refers to the composition of the trademark text, graphics and other original distinction and identification, the use of distinctiveness refers to the original can not be distinguished, but in the process of the use of the second meaning of the distinction and identification effect.
Whether the trademark is distinctive, mainly to see the composition of the trademark text, graphics and other elements of the imaginary, arbitrary, suggestive or pure description: 1, imaginary refers to the imaginary trademark logo, and therefore has the inherent distinctiveness, such as: "Haier"; 2, arbitrary refers to the original meaning of the logo will be used in new areas. Arbitrary refers to the use of the original meaning of the logo in a new field, and therefore inherently distinctive, such as: "Apple" cell phone; 3, suggestive refers to certain characteristics of the product or service as a trademark on it, usually inherently distinctive, such as: "Piu Rou" shampoo; 4, purely descriptive means The quality of the product or service, the main raw materials, functions, uses, weight, number of direct description, generally does not have inherent distinctiveness, such as: "rice" wine.
Use of distinctiveness refers to the original trademark logo does not have inherent distinctiveness, through long-term use of the second layer of meaning, and thus has a distinctive. For example: six walnuts, although "six walnuts" is the main raw material of the goods, but the goods sales area involves at least more than ten provinces, and was recognized by the Hebei Bureau of Industry and Commerce as a well-known goods, after the use of the use of distinctive, can play a role in distinguishing the source of the goods and can be registered as a trademark.
Three, the relevant judicial decision
1, the fabricated word has a strong inherent distinctiveness
In the trademark case of "Golisi", the court held that: "Golisi" itself is a fabricated word with no inherent meaning, and has a strong inherent distinctiveness. The court held that "Golisi" itself is a made-up word without inherent meaning, with strong inherent distinctiveness, and according to common sense judgment, in the absence of any contact or knowledge, the possibility of registration of similarities due to coincidence is relatively low. As a commodity operator with geographical proximity and a high degree of business scope connection, the possibility that Wang Shanyong is completely ignorant of the name and trademark "Golisi" is relatively low. Under the above circumstances, Wang Shanyong still applied for registration of the trademark "Claris" on handbags and wallets, and his behavior can hardly be considered justified. Wang Shanyong's infringement lawsuit against Golisi's legitimate use of the trademark right is not obtained in good faith, constituting an abuse of rights.
2, generic name distinctive features tend to weaken
In the "Lu Jin" trademark case, the court held that: the role of the trademark is mainly for the identification, that is, consumers are able to differentiate between different trademarks and the corresponding provider of goods and services. The purpose of protecting trademark rights is to prevent confusion about the source of goods and services. As the word mark "LUJIN" and the combination mark "Lj+LUJIN" of LUJIN are consistent with "LUJIN", which is the common name of Shandong folk handmade cotton textiles, they should have distinctive and differentiating features. The distinguishing feature of distinctiveness tends to be weakened. Although "Lu Jin" is not the generic name of Lu Jin clothing, it is the generic name of Shandong folk handmade cotton textiles. The trademark registrant does not enjoy the exclusive right to the generic name part of the trademark, does not affect others to "Lu Jin" as the generic name of the legitimate use.
3, the "first meaning" of the use of
In the "Monopoly" trademark case, the court held that: Daewoo applied for registration of the "Monopoly" trademark in the 41st class of services before the "Monopoly" trademark. The court held that before Daewoo applied for registration of the trademark "Monopoly" in Class 41 services, "Monopoly" had been widely known as a kind of computer game "simulating the reality of the way of doing business according to the number of dice points", and that "Monopoly" was related to this kind of commercial business to the public. Monopoly" has established a close correspondence with this type of business adventure game, and "Monopoly" has become the conventional name for this type of business adventure game. Therefore, although the word "Monopoly" was registered by Daewoo as a trademark for "providing online game" services, it still has the meaning of referring to the aforementioned commercial adventure games, and Daewoo cannot prohibit others from using this meaning. In this case, the appellee Shanda used "Shanda Fortune" in two ways, one is to use it as the name of the game in the text introduction of the game; the other is to display the corresponding logo in the upper left corner of the relevant webpage or display the corresponding logo in the upper right corner of the game screen. Analyzing the manner and purpose of Shanda's use of the allegedly infringing logo, Shanda did not use the allegedly infringing logo in all the online game services on its website, but only in the online game service related to the game "Rolling the dice to advance, with the purpose of defeating rivals economically and becoming a tycoon through commercial activities such as buying land and building houses". The use of the allegedly infringing mark in the service indicates that Appellee's use of the allegedly infringing mark was intended to indicate descriptively, by the inclusion of the word "Monopoly," the content and objective of the game it offered online. Furthermore, the game players can only enter the website of Shanda Company to play the game, and in the website "game introduction", it is clearly stated that "Shanda Monopoly" is a casual online game independently researched and developed by Shanda Networks", plus "The name "Shanda" has considerable popularity, and the relevant public will not mistake Shanda's Monopoly game for Daewoo's Monopoly game, nor will they confuse the two sources of service. The relevant public will generally not mistake Shanda's "Monopoly" game for Daewoo's "Monopoly" game, nor will they confuse the sources of the two services. Thus, Shanda's alleged infringement is the legitimate use of the game species corresponding to the narrative service, as the service mark "Monopoly" trademark exclusive right holder Daewoo Company has no right to prohibit.
4, the use of obtaining distinctiveness
In the case of the trademark "Brother", the court held that: firstly, about the distinctiveness of the name "Brother". Although the word "brother" is a commonly used term, the Respondent had first used the word "brother" as the name of a company in the field of sewing equipment. In the field of sewing equipment, "Brothers" obviously has prominence. At the same time, the prominence of the name can be derived from both its inherent prominence and the acquisition of prominence, i.e., through the use of the relevant public awareness, which serves to identify the identity of the market entity. In this case, Japan Brother Industry Co., Ltd. has sponsored and named the "Brother Cup" China International Young Fashion Designer Contest for ten consecutive years, and through publicity and promotion, the "Brother" name has been widely recognized by the public in the field of sewing equipment and its related garment design field. Through publicity and promotion, the "Brother" brand name has been widely recognized by the public in the field of sewing equipment and its related apparel design field, and has gained high prominence.
5. Uniqueness in design does not necessarily mean distinctiveness
In the Nestle trademark case, the court held that: as a three-dimensional logo on the packaging of commodities, due to its practicality, its uniqueness in design does not certainly indicate that it has the distinctiveness required for a trademark, and that the general awareness of the relevant public should be used to judge the distinctiveness of the logo. The court held that: as a three-dimensional sign for the packaging of goods, its uniqueness in design does not ipso facto indicate that it is distinctive as a trademark, and it should be judged by the general awareness of the relevant public as to whether or not it is capable of distinguishing the source of the product. In this case, the "condiment" designated by the disputed trademark is a daily necessity familiar to ordinary consumers, and before the disputed trademark applied for territorial extension protection, the packaging of the same kind of goods with similar bottles as the disputed trademark already existed in the market, and as the Trademark Law before the amendment of 2001 did not have the provision that three-dimensional symbols could be applied for registration, the relevant public would not recognize it as a trademark, so the relevant public would not be able to recognize it as a trademark.
6, whether the regional abbreviation becomes less distinctive
In the case of "Hundred Years of Anhui", the court held that: the opposed trademark "Hundred Years of Anhui" and the cited trademark "Hundred Years of Anhui" are compared with the cited trademark "Hundred Years of Anhui", and both of them have the same characteristics. The court held that: compared with the opposed trademark "100 years Anhui" and the cited trademark "100 years Anhui", they are both word trademarks, and the font is identical, the font of the horizontal and vertical, there is no substantive difference, the difference between the two trademarks is only that the opposed trademark has more "Hui". The word "Anhui" in the cited trademark and the core trademark claimed by Anhui Wine Company have differences in font, but the call is the same, so it can not simply think that the word "Anhui" is the abbreviation of Anhui and the distinctiveness becomes weaker. The Supreme People's Court held in (2015) Zhi Xing Zi No. 65 that the opposed trademark "soft Anhui" and the cited trademark both contain "Anhui", and the difference between the two words "soft" and "Anhui" is weaker, and the two words are less distinctive. The two words are less distinctive, and the two trademarks are similar. Compared with the case, the two trademarks in this case is closer. On the other hand, BengWan Liquor Company did not prove that "Hundred Years" is the common name of liquor. Therefore, the two trademarks are close to each other, both in terms of the components of the mark and the mark as a whole.
7, the lack of distinctiveness of the name
In the "Thousand Island Lake" trademark case, the court held that: in view of the No. 6793620 "Thousand Island Lake" registered trademark is the name of a place and the name of the lake, it will be The court held that since the registered trademark No. 6793620 "Qiandao Lake" used the name of a place and a lake, the words "Qiandao Lake" lacked distinctiveness as a trademark, and the owner of the exclusive right to use the registered trademark could not prevent others from using the name "Qiandao Lake" without evidence that the trademark had gained distinctiveness through actual use. In this case, to determine whether the company infringes on Fang Hesheng's exclusive right to use the registered trademark No. 6793620 "Thousand Island Lake", it is necessary to make a comprehensive judgment on the basis of the company's specific use of "Thousand Island Lake" on the infringing products.
8, with a deceptive sign does not have the distinctiveness
In the "pain king" trademark case, the court held that: Trademark Law, Article 10, paragraph 1, subparagraph 7, provides that: with a deceptive, easy to make the public to the quality of the goods and other characteristics of the origin of the sign of a misunderstanding, shall not be registered as a trademark. In this case, although the disputed trademark had deformed the Chinese character "痛王", the public could still easily recognize it as "痛王", and its designated services were "medical clinic services, medical massage, hospitals, health care, telemedicine services, beauty salons, Health care, telemedicine services, beauty parlors, massage, sauna services, sanatoriums, medical aids", which is likely to mislead the relevant public into believing that the above services using the disputed trademark symbol are related to the disease of pain, which is likely to lead to misperception of the therapeutic effect, function and other characteristics of the above services, which is deceptive and should not be registered.
9. The lack of inherent distinctiveness of a sign indicating the main raw material of the goods
In the "Guanxiang" Trademark case, the Court held that: the sign directly indicating the main raw material of the goods lacks inherent distinctiveness, and when it is used on the goods or services, the relevant public will usually think that it describes the main raw material of the goods or services, and it will not be able to serve as the basis of the trademark's registration. The court held that: the use of the sign directly representing the main raw material of the goods or services lacked inherent distinctiveness, and the relevant public usually regarded it as a description of the main raw material of the goods or services, and it could not distinguish a certain provider from others, and could not realize the identifying and distinguishing functions of a trademark; at the same time, based on the considerations of competition in the same industry, the sign directly representing the main raw material of the goods belonged to the public domain, and it was a wealth of the mankind***s commonwealth, and it might hinder the other operators from using it if it was allowed to be registered by specific subjects. Therefore, in order to obtain distinctive features through the use of a sign that directly indicates the main raw material of goods, the criterion for determining whether the sign has established a unique and stable link between the sign and the subject of use, so that the relevant public is able to distinguish the source of the goods or services through the sign, shall be whether the sign has been used in practice or not. In this case, guanxiang company applied for registration of the "guanxiang" word mark, belonging to the main raw materials of the goods directly indicated that the sign itself does not have distinctive, so guanxiang company has a heavier burden of proof. Only if the evidence submitted by Guanxiang Company is sufficient to prove that the trademark "Guanxiang" in the "tea, tea substitutes" after extensive use has been established with Guanxiang Company, the only, stable connection between the relevant public through the sign can distinguish the source of the goods The Government of the People's Republic of China has not been able to make up for the lack of intrinsic distinctiveness of the mark.
10, directly expressed the technical characteristics of the designated services lack of distinctiveness
In the "Bluetooth" trademark case, the court held that: Bluetooth, as a short-range wireless communication technology, registered for use in "computer programming, computer hardware and software relating to recording, transmitting and reproducing of data, sound, images and illumination". The Court held that Bluetooth, as a short distance wireless communication technology, was registered for use in services such as "computer programming, computer hardware and software consulting related to recording, transmission and reproduction of data, sound, image and illumination", which directly indicated the technical characteristics of the designated services, and lacked the distinctive features of a trademark, and belonged to the situation referred to in Article 11(1)(b) of the Trademark Law. The evidence submitted by Brutus in the re-examination stage regarding the use and popularity of the applied-for trademark was insufficient to prove that the trademark "Bluetooth" did not directly represent the technical characteristics of the designated services, and that the trademark had the distinctive features required for a registered trademark.
11, the name of the celebrity as a registered trademark inherent distinctiveness is weak
In the "Li Shizhen" trademark case, the court held that: in view of the "Li Shizhen" as China's Ming Dynasty famous medical practitioner, the general public, mentioning For the general public, the reference to "Li Shizhen" reminds people more of a historical celebrity rather than a product, so "Li Shizhen" as a registered trademark is inherently less distinctive. Li Shizhen Pharmaceutical Company obtained Trademark No. 292700 in 2006 by changing the name of the registrant, and after the expiration of the renewal in 2007, it did not renew the trademark, but re-registered Trademark No. 6721108 in 2010, and Li Shizhen Pharmaceutical Company did not start to use the above mentioned trademark on alcoholic beverages until 2013. Because Li Shizhen Pharmaceutical Company had not combined the said trademark with the goods and actually put it into the market for use before the prosecution of this case, the market recognition it gained was obviously insufficient.
Fourth, Practical Reflections
Trademark is a kind of commercial sign, which refers to the sign that can distinguish the goods and services of natural persons, legal persons or other organizations from those of others, including words, graphics, letters, numerals, three-dimensional symbols, color combinations and sounds, etc., as well as combinations of the above elements, and is intended to be used to differentiate the source of goods or services in commercial activities. The purpose of a trademark is to distinguish the source of goods or services in commerce. Therefore, trademarks are required to be distinctive and easy to recognize.
China's trademarks are divided into four categories: fictitious trademarks, arbitrary trademarks, suggestive trademarks and descriptive trademarks. Conjured trademarks are the most significant, arbitrary trademarks, suggestive trademarks are less significant, and descriptive trademarks due to the use of the public domain ("first meaning"), only after the use of the distinctive ("second meaning") and easy to identify the situation as a trademark. recognizable as a trademark.
The determination of distinctive features of a trademark shall take into account the sign itself (meaning, call and appearance), the cognitive habits of the relevant public of the goods designated for use in the trademark, and the actual use of the goods in the industry designated for use in the trademark, etc. Therefore, inherent distinctiveness is the most important factor in the determination of the distinctive features of a trademark. Therefore, inherent distinctiveness is an inherent favorable factor for a trademark to obtain distinctiveness, and obtaining distinctiveness plays a decisive role in determining the strength of a trademark because it is recognized by the market and consumers.
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