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Conditions For Registered Trademarks

2008/12/30 17:08:00 41928

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The positive conditions for a registered trademark refer to the conditions that a registered trademark should have.

Contrary to the negative conditions mentioned above, the positive requirement is that a trademark should have a statutory constituent element and a distinctive feature that distinguishes other operators from the same kind of goods or services.

The elements that should be possessed of trademarks should be discussed in Chapter 1 of the preceding trademark. Here we mainly discuss the salient features and identifiability of trademarks.

The salient feature of trademark is its uniqueness.

Trademark is the mark of distinguishing commodities. Both words, trademarks, trademarks and stereoscopic trademarks must have distinct characteristics, making them a clear sign of distinguishing similar commodities from others.

The uniqueness and identifiability of trademarks are interrelated. The more obvious the characteristics of trademarks, the more distinctive they are. The greater the difference, the more convenient for people to identify.

The eighth article of the existing trademark law stipulates: "any visible sign that distinguishes the trademarks of natural persons, legal persons or other organizations from those of others."

They can be applied for registration as trademarks. "

The ninth rule states: "the trademark applied for registration should have significant characteristics, easy to identify, and must not conflict with the legitimate rights of others."

The above laws stipulate the characteristics of trademarks that apply for registration from different angles.

It is clear that the trademark that applies for registration is recognizable and distinctive, which is a statutory positive condition.

TRIPs fifteenth provides: "any combination of signs or symbols can be registered as a trademark if they have the characteristics of distinguishing the goods or services of an enterprise from the goods or services of another enterprise."

Emphasis is also on the identifiability of trademarks.

The marked characteristics and identifiability of trademarks are interrelated. To be identifiable, trademarks should have their own characteristics.

Conversely, the more significant the trademark is, the more personal it is, the greater the difference, the easier it will be for people to identify.

The distinguishing features and identities of trademarks should be judged from two aspects: whether the trademark itself is significant and whether it is mixed with others' trademarks.

一、商標的顯著性

The saliency of trademark lies in whether the trademark is newly created or not.

The trademark with individuality and innovation is undoubtedly a notable feature.

Trademarks should have distinctive characteristics, so as to facilitate the differentiation, we should make a comprehensive inspection from the aspects of the characters, graphics and other elements of the trade mark itself.

Too simple graphics, lines, or too complex patterns, ordinary numbers, general daily expressions or advertising language, the general name of goods, packaging, decoration, containers and so on are generally considered to have no significant characteristics.

The products of category, class twenty-fourth, class twenty-fifth, and category twenty-eighth are not approved for registration on the basis of lack of significance and not easy to be identified by consumers. Another example is a combination trademark of pine and cypress, flowers, sun, crane, flowing water and mountain stone. The trademark combination of "pine crane and Ying Chun" is required to be registered on some daily necessities. It is also not approved for registration. The reason is that "pine Crane" is commonly used as an auspicious term for people. It is often used in daily necessities. Patterns are often used as decorative patterns in daily necessities. For example, an arc is applied for registration in third categories, Ninth categories, and eighteenth.

Trademark is required to have prominent features. The purpose is to enable consumers to identify the source of commodities through trademarks. Some trademarks, even though their constituent elements lack significant features, can be registered because they have been recognized for long-term use of trademarks. For example, the simple and simple graphics such as triangle and semicircle should be linked to a particular commodity and used repeatedly so that they can be recognized and should be protected.

Again, for the world-famous "NIKE" trademark used for sportswear and sports shoes, the design of its letters and brushwork is simple and indistinct from its constituent elements. However, it is a simple but powerful recognition function.

Therefore, the distinguishing feature of trademark should be judged and recognized from the angle of whether the trademark has been used in practice and whether it has formed a specific relationship with a particular commodity.

According to the saliency of trademarks, the US courts have classified Trademarks into innovative trademarks, suggestive trademarks, descriptive trademarks and classified trademarks.

Among them, innovative trademarks and suggestive trademarks are considered to be inherent and significant trademarks. Descriptive trademarks do not have intrinsic significance. But after long-term use, they get second meanings. They are also considered to be significant. These three types of trademarks can apply for registration.

The classified trademarks are general marks of commodities, which are neither significant nor significant, so they are not registered.

In terms of the use of trademarks in China, trademarks can be classified into several categories according to the significance of trademarks: innovative trademarks, suggestive trademarks, descriptive trademarks and borrowed trademarks.

(1) innovative surface markers

An innovative trademark is created for the use of a certain commodity. It not only does not describe any goods or services that it signs, nor does it convey any information about goods and services, but more importantly, the words and graphics used by trademarks do not represent anything else, and do not play any other functions.

So once it is used for a commodity, it becomes a specific symbol of a commodity.

For example, the famous world "SONY", "KODA" K, "EXXON", these trademarks, in addition to marking their goods, do not have any other meaning, so they have the strongest identities.

This kind of trademark is in our country.

(二)暗示性商標

Suggestive trademark is indirect description or allusion to the goods or services it shows, though it has a certain descriptive nature.

But the distinction is the main thing, for example, the abstract Phoenix shape trademark of China International Airlines reflects the meaning of flying, auspicious and beautiful; and, for example, the "Shangri-La" trademark used for hotel service implies the meaning of Xanadu.

The owners of such trademarks have ingeniously assigned their rhymes or goods to their original products or services, and have established strong identities and significance.

This kind of trademark has a certain quantity in our country, but it is still a minority.

(三)描述性商標

Unlike suggestive trademarks, descriptive trademarks directly describe the characteristics of a commodity and convey information about goods or services.

It can be divided into the following situations: (1) the characteristics of goods or services that describe its logo, such as the "Wuliangye" trademark used for liquor, directly indicates the characteristics of five kinds of grain used in brewing liquor; (2) describe the quality and functional characteristics of goods or services, such as "Maxam" trademark used for daily products such as skin care products and toothpaste; (3) describe the geographical origin of goods or services, such as "Moutai" and other liquor brands; and (4) trade marks named after names, such as the "Lining" trademark used for sportswear.

Such trademarks can be highly identified and characterized by their use.

In the past, the Trademark Law of our country has always directly expressed the sign of the characteristics of commodity quality, main raw materials, functions and uses as a prohibition condition for registered trademarks, which is stipulated in the prohibition clauses. Therefore, some trademarks that use such signs have to be replaced by homophonic and homophonic characters.

However, due to the actual use of such trademarks, some have also been registered.

The contradiction between legal provisions and practice has long troubled trademark authorities.

The revised trademark law in 2001 solved this problem and clearly stipulated that trademark registration could be used as a trademark after the use of significant features and identification.

(four) borrowing trademarks

The use of trademarks is the most commonly used in China. It has no relation to goods or services. It refers to the use of other specific items to borrow its goods or services as trademarks. It does not imply the implicit and metaphor of implied trademarks, nor does it have the relationship between descriptive trademarks and commodities. For example, there are ten kinds of commodities, such as "the Great Wall", "Yangtze River", "Panda" and "Peony".

If it is not through long-term use and advertising, it is difficult to link it to specific products. Of course, by using it, it can still be identifiable or even strong recognition, such as "Panda" brand TV and "the Great Wall" brand computer.

However, since these trademarks are used in the public domain, they lack their originality and lack of distinct characteristics, so they are weak trademarks after all. Even though they become well-known trademarks, they can not prevent others from using the same or similar trademarks on similar commercial products as "SONY" and other original trademarks.

二、商標不得與他人的商標混同

Confusion refers to the same or nearly two cases of trademarks with others' trademarks.

Generally speaking, the original trademark does not mix with others' trademarks. The implied trademark and descriptive trademark, especially the borrowed trademark, tend to be confused with others' trademarks. The trademark that applies for registration is confused with the registered trademark of other people, and can not be registered.

The same trademark means that the words and graphics used in the same commodity or similar commodities are exactly the same, or the brand names are identical in pronunciation.

It is difficult for consumers to distinguish the goods or services of different operators with the same trademark.

Trademark refers to the pronunciation of words, graphics or names used on trademarks of the same commodity or similar goods.

Although there are differences, the difference is not obvious enough to make consumers mistaken.

For example, someone has applied "surname and what application" to thirtieth categories of ice cream and popsicles, similar to the Wahaha brand registered in the Hangzhou Wahaha Group's thirtieth categories of ice products.

The two trademark of "surname and what" and "Wahaha" are very similar in character but different in pronunciation.

What is "surname and what is" is just a slight change in every word of Wahaha, and deliberately close its surname and Wahaha, making use of consumers' trust in Wahaha brand, making consumers mistaken.