Article 12 of the Trademark Law stipulates the non-functionality of three-dimensional trademarks.
Article 12 When applying for a registered trademark with a three-dimensional mark, a shape that is solely caused by the nature of the goods themselves, a shape of the goods that is necessary to obtain technical effects, or a shape that makes the goods of substantial value shall not be used. register.
Interpretation This article stipulates the restrictions on applications for registration of three-dimensional logo trademarks.
1. Three-dimensional logos and trademarks are also called three-dimensional trademarks. According to Article 15(1) of the Agreement on Trade-Related Aspects of Intellectual Property Rights, three-dimensional marks can be registered as trademarks. Article 8 of this Law stipulates that any visible mark that can distinguish the goods of a natural person, legal person or other organization from the goods of others, including words, graphics, letters, numbers, three-dimensional signs and color combinations, as well as combinations of the above elements , can be applied for registration as trademarks. This provision shows that three-dimensional trademarks have been included in the protection scope of my country’s trademark law. In practice, my country has begun to accept applications for trademark registration consisting of three-dimensional marks. The world-famous Coke bottle of Coke Company is a typical three-dimensional trademark.
2. Three-dimensional trademarks are different from flat trademarks. Three-dimensional trademarks are composed of three-dimensional logos. From a visual point of view , three-dimensional trademarks are more intuitive than flat trademarks, but applications for registered trademarks with three-dimensional marks must have distinctive features and are easy to identify without distinctive features. This article stipulates that applications for registered trademarks with three-dimensional marks shall not be registered. Three restrictions:
1. Shapes arising only from the nature of the product shall not be registered as trademarks, such as Yuanxiao and Mahua in food. If the shapes of Yuanxiao and Mahua are allowed to be registered as Yuanxiao and Mahua. The exclusive use of the Mahua trademark is equivalent to depriving other producers and operators of the right to produce and operate Yuanxiao and Mahua, which is unfair.
2. The shape of goods required to obtain technical effects shall not be registered. is a trademark. For example, the shape of an electric razor blade is designed to achieve a certain technical effect rather than to distinguish it from other razors. It does not have the function of a trademark. If the shape of this blade is allowed to be registered as a shaving The exclusive use of Xu Dao's trademark will hinder the promotion and application of this technology.
3. Shapes that make the product of substantial value, such as the unique cutting surface shape of diamonds, shall not be registered as trademarks. , is the necessary shape for diamonds to have substantial value. This fact is unchangeable for any diamond producer and operator. If the unique cutting surface shape of a diamond is allowed to be registered as a diamond trademark and used exclusively, it will not affect other diamonds. It is unfair for producers and operators.
Prohibiting the registration of the above three-dimensional marks as trademarks is very beneficial to maintaining fair competition, promoting technological progress and promoting the development of the trademark industry.
Non-functionality is based on the consideration of trademark distinctiveness, and the other is based on anti-monopoly and encouragement of free competition considerations, because if some marks that can be protected by patents are protected by trademarks, the patent may in fact be permanently monopolized. , is not conducive to social progress.