Distinctiveness refers to the attribute of a trademark that indicates the source of a company’s goods or services and distinguishes them from those of other companies. As the "soul" of trademark protection and the "hub" for the normal operation of trademark law, trademark distinctiveness has always received special attention from both theoretical and practical circles.

Distinctiveness is the most important concept in trademark law, but it is also a very ambiguous term. Various documents often use different words indiscriminately when dealing with the issue of significance, and the same word can often be understood differently in different contexts. Distinctiveness refers to the attributes of a trademark that indicate the source of a company's goods or services and distinguish them from those of other companies. As the "soul" of trademark protection and the "hub" for the normal operation of trademark law, trademark distinctiveness has always received special attention from both theoretical and practical circles.

Classification of trademark distinctiveness:

(1) The symbolic elements constituting the trademark are self-created words or phrases without meaning, or are represented by animal cartoon shapes or special techniques. Those with different forms are strong trademarks, such as the "Haier" trademark used on "refrigerator" and the "KODAK" trademark used on "color film". The inherent distinctiveness of a trademark is not only reflected in the content of its symbolic elements, but also in the form of expression of its symbolic elements. Taking a word trademark as an example, its inherent distinctiveness is not only reflected in the combination of words, but also in its form of expression, that is, fonts or combinations that contain certain design elements, such as special fonts, handwriting (including signatures), etc. Generally speaking, the stronger the inherent distinctiveness of a trademark, the greater the possibility of obtaining special protection. (2) If the symbolic elements that constitute a trademark are ordinary words or phrases with meaning, or are common graphics on certain types of goods, or are common forms of animals in nature, they are weak trademarks, such as "Great Wall" used on "wine" Trademark, "Prairie" trademark used on "wine". (3) If a trademark consists of a non-distinctive symbol, it is not a trademark, but only a symbol.

Determination of trademark distinctiveness:

“The distinctiveness of a trademark is generally relative to the designated goods and services. This principle is self-evident.” Determining a certain mark Whether it is distinctive cannot be determined abstractly, but should consider the goods or services to which it is intended to be attached. The concept or meaning of the mark cannot be directly related to the marked object, that is, the goods or services, or has only a small or indirect correlation. At the same time, the subjects who judge whether a certain mark is distinctive are not the examiners or judges of the Trademark Office, but ordinary consumers in the relevant market. When ordinary consumers identify a certain mark as a trademark during daily shopping, the mark is distinctive. An ordinary consumer usually looks at the trademark mark as a whole and does not examine the details of the mark. He or she has reasonable relevant knowledge and A reasonable degree of care is required, and the degree of care will vary with the type of goods or services. As a product of the development of commodity economy, the trademark system completely depends on the specific market, and the background of trademark use determines everything. There is a degree of distinctiveness issue. Any mark that meets the minimum distinctiveness requirements, that is, has inherent distinctiveness, can be registered as a trademark. In fact, the degree of trademark distinctiveness often far exceeds this standard. Therefore, under normal circumstances, as long as there are no obvious defects in a certain mark, distinctiveness can be presumed. In practice, "the judgment of trademark distinctiveness generally adopts the method of proof by reductio, that is, excluding certain signs that cannot be used as trademarks or registered as trademarks." From a legislative perspective, most of the distinctiveness provisions of various countries' trademark laws are prohibited Sexual clause, that is, directly exclude those unqualified marks from trademark protection. As far as academic research is concerned, "the composition of a distinctive trademark cannot be clearly defined from the front, so analyzing it from the reverse will be more helpful in determining whether a trademark meets the requirements for distinctiveness." Distinctiveness is dynamic and variable. Yes, a mark that is not originally distinctive may become distinctive due to long-term use. On the contrary, a mark that is originally distinctive may also lose its distinctiveness due to improper use. This involves the issue of obtaining distinctiveness. In practice, such misunderstandings often arise. It is believed that words not used by competitors are often significant. Words frequently used by competing companies are unlikely to be significant. But this is not the case. First, the fact that a term is not used by competitors does not affect the descriptive or salient attributes of that term. For example, there is a blood pressure monitor that can be worn on the wrist like a watch.

When the European Matsushita Company applied to register "BLOOD PRESSURE WATCH" as a blood pressure monitor trademark, it pointed out that no competing company used the "blood pressure watch" trademark, so the word was distinctive. But Bureau examiners and appeals committees ultimately rejected the application. The fact that a term is not used by a competing business is relevant only in determining whether the term is a common name. However, it will not have any impact on the judgment of inherent significance. Second, the fact that competing companies are also using a certain word is not enough to overturn its distinctiveness. Someone once pointed out that "mail" is common in the names of many newspapers. For the trademark owner, the word is not distinctive, so the "THE MAIL" trademark is not enough to distinguish its owner's newspaper from other newspapers. But this argument was ultimately rejected on the grounds that uniqueness itself is not a prerequisite for distinctiveness. In short, whether a certain trademark is distinctive should be judged based on the specific circumstances of each case, and there is no iron-clad rule that is universally applicable.