A trademark is a sign that distinguishes goods or sources. The reason why trademarks are protected by law is that they have special functions.

As the basis for the existence of trademarks, the function of trademarks is of vital significance to the legal positioning of trademarks and the definition of trademark rights. Therefore, the understanding of trademark functions is an accurate understanding and grasp of trademark laws. The key to the system.

The so-called function of trademarks refers to the attributes and meanings of trademarks as an organic part of the social system of production, trading and consumption of goods.

The famous American scholar J. Thomas McCarthy believes that, in general, trademarks play four functions worthy of court protection:

1. To identify the seller’s goods and to distinguish them from others. Distinguished from goods sold by other sellers;

2. It means that all goods using the trademark come from a single, even anonymous, source, or are controlled by a single, even anonymous, source;

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3. It means that all goods using the trademark have the same level of quality;

4. As a major tool for advertising or selling such goods.

At the same time, McCarthy also pointed out that in addition to the above four functions, it must also be remembered that trademarks are also objective signs of the goodwill that an enterprise has established.

Trademarks are a type of symbol, but not all symbols have property significance. Only symbols with unique functions can become trademarks with property significance.

The fundamental reason why a trademark becomes property lies precisely in its unique function. In this sense, trademark protection is to ensure that the trademark function can be realized normally and to protect it from illegal use or obstruction.

1. The function of distinguishing the source

The function of distinguishing the source is the most basic and original function of a trademark.

The function of distinguishing sources means that the relevant public can distinguish the source of the goods identified by a specific trademark from other sources.

Marks may have different functions. Only signs that have the function of distinguishing the source of goods are trademarks. Trademarks are like a beacon, guiding consumers to "recognize the brand and shop" and accurately find the goods they need.

First of all, the distinguishing source function of a trademark includes two levels of meaning: to identify and distinguish the trademark (toidentifyanddistinguish).

According to the definition of trademark in the U.S. Trademark Law (Lanham Act), a trademark is a word, slogan, picture or other symbol used to identify and distinguish goods.

Identification determines that the function of the trademark is to identify the source of the product, that is, the relevant public can associate the product with its source based on the trademark;

Distinguishing determines that the trademark should also have the ability to The functions of one enterprise's products are different from those of other enterprises, that is, the relevant public can distinguish the source of the goods identified by it from other sources based on a specific trademark.

The identification and distinction attributes of a trademark are the basic guarantee for the original function of a trademark. The identification of a trademark is the prerequisite for its distinctiveness. Only when a trademark is distinctive can its identification have legal significance.

Therefore, the protection of trademark rights is mainly to protect the function of distinguishing the source of trademarks. One of the elements of infringement of trademark rights is whether or likely to cause confusion or misunderstanding among consumers.

Secondly, the function of distinguishing the source of a trademark also involves two theories: the strict source theory and the anonymous source theory.

Strict source theory emphasizes that the source of goods must come from the specific producer of the goods.

This theory soon became incompatible with social and economic development. Because in addition to manufacturers using trademarks, retailers and importers may also use their own trademarks, so the source of the trademark indication goes beyond the scope of the manufacturer.

At the same time, under the early strict source theory, trademark licensing was impossible, because this meant that if the trademark could be licensed separately from the business, it would be equivalent to using the trademark on the goods of other businesses. It harms the interests of consumers and is inconsistent with the function of the trademark.

Adhering to a strict source theory will reduce the property value of trademark rights, and the emergence and development of trademark rights transfer and licensing practices force people to seek new theories to support the legitimacy of separate licensing or transfer of trademark rights and business.

Anonymous source theory is a breakthrough from strict source theory. With the development of social economy and the improvement of transportation conditions, many commodity circulation links have been formed between commodity producers and final consumers, which makes the distance between producers and consumers farther and farther. Correspondingly, It is also becoming more and more difficult for consumers to know the specific manufacturers of products.

In this case, people’s understanding of the function of distinguishing the source of trademarks has also changed. Consumers are beginning to realize that even if a specific trademark cannot identify the specific manufacturer of the goods, as long as the trademark can ensure that the related goods come from the same source, the distinguishing function of the trademark can still be achieved. This is the anonymous source theory.

In modern society, the identification function of trademarks is particularly important. In today's booming economy, there is a dazzling array of products. The market is flooded with many identical or similar goods or services. These goods or services come from different manufacturers and operators. The production conditions, production processes, product or service quality and management level of each manufacturer vary. Qi, prices will vary. If companies want to attract the attention of consumers in the fierce market competition, enable them to choose their own products, and win over the largest number of consumers to the greatest extent, they must use eye-catching trademarks on their products to make them easier for consumers to identify.

From the perspective of consumers, consumers can purchase the goods they want by relying on the trademarks they recognize. Trademarks serve as a link that connects goods and consumers.

For example, "Jiaduobao" and "Wanglaoji" herbal teas are both the same herbal tea drinks, and both claim to be the most authentic formula. Consumers are not able to distinguish the taste of herbal teas. The existence of a trademark can prevent consumers from being confused, so they can purchase the goods they need according to their own preferences, and it can also save the economic cost of making purchasing decisions.

From the perspective of producers, the function of trademarks to distinguish sources can enable producers to establish direct contact with consumers beyond the shoulders of intermediate retailers, and thus establish credibility in the minds of consumers and provide Make resale possible. This encourages producers to improve and maintain product quality, expand their market share, and maximize profits.

my country’s Trademark Law and its Implementing Regulations also reflect the protection of the function of trademarks to distinguish their sources.

According to Article 30 of China’s Trademark Law:

Any trademark applied for registration that does not comply with the relevant provisions of this law or has been registered with others on the same or similar goods If the trademark or the preliminary approved trademark is identical or similar, the Trademark Office will reject the application and will not publish it.

Article 31, Paragraph 2 of the "Regulations for the Implementation of the Trademark Law" stipulates:

When a registered trademark is transferred, the trademark registrant shall transfer the same or similar trademark registered on the same or similar goods. If the trademark is not transferred together, the Trademark Office shall notify the applicant to make corrections within a time limit; if no correction is made within the time limit, the application for transfer of the registered trademark shall be deemed to have been abandoned, and the Trademark Office shall notify the applicant in writing.

It is not difficult to see from the above provisions that in order to ensure that trademarks realize their function of distinguishing sources, my country's Trademark Law strictly ensures that identical or similar trademarks on the same or similar goods are owned by the same subject.

However, with the development of the times, some countries now believe that the same or similar trademarks on the same or similar goods are owned by different entities, which does not necessarily lead to consumer confusion and misunderstanding. It will inevitably weaken the function of distinguishing the source of trademarks.

For example, the current trademark deposit agreement is a breakthrough in the function of distinguishing the source of trademarks.

2. Quality Assurance Function

In the 1930s, a brand-new concept emerged based on the function of trademarks to distinguish their sources, that is, the quality assurance function. The proposal of quality assurance function is inevitable for the development of commodity economy.

The quality assurance function means that goods or services using the same trademark have the same quality.

According to this theory, a trademark not only indicates the source of the manufacturer or distributor of the goods, but also indicates a certain level of quality. Trademarks not only convey product source information to relevant consumers, but also convey product quality information.

Trademarks not only distinguish the same kind of goods provided by different manufacturers, but also distinguish the same kind of goods of different qualities provided by the same manufacturer.

For example, Procter & Gamble uses different brands to implement differentiated marketing strategies:

Rejoice is smooth and supple

Pantene is moisturizing

Head & Shoulders anti-dandruff

Clairol plant essence

Sassoon styling

Required Note that the quality assurance function of a trademark does not mean that the trademark always means high-quality goods or services, but only that the quality level of all goods or services supplied under the trademark will remain consistent and predictable. Characteristics, that is, the quality assurance function of a trademark only guarantees the identity of the quality of the goods, but does not guarantee the high quality of the goods.

To be precise, trademarks do not guarantee the quality of goods. Trademarks only convey quality control information. The quality of goods identified by the same trademark is controlled by a single enterprise.

Trademarks allow the public to identify products with which they have experience and understand their quality characteristics. It ensures that the next time they purchase goods with the same trademark, they will have the same characteristics. This function This means that the owner of the trademark does not necessarily participate in the actual production of the goods, but only needs to control the quality of the goods.

For consumers, what they care about is not who produces the goods using the same trademark, but the quality of the goods.

For example, when we buy an Apple iPhone, we can buy it from Apple’s flagship store or on JD.com. We don’t care about the origin of the Apple phone.

We all know that Foxconn is the OEM factory for Apple mobile phones, and Foxconn has many factories. The places used to produce iPhone mobile phones are mainly concentrated in Shenzhen, Chengdu and Zhengzhou.

As can be seen from the first letter of the iPhone serial number, Shenzhen starts with C, Chengdu starts with D, and Zhengzhou starts with F.

The actual situation is that when we buy mobile phones, we often ignore the origin of the mobile phone, but care about the quality of the mobile phone and the trademark "Apple graphics" used.

The quality assurance function theory provides a legitimate basis for the separation of trademark rights and business transfer and licensing. In order to maintain consumers’ expectations for the quality of branded goods, the Trademark Law has special provisions for the transfer and licensing of trademarks. restrictions.

For trademark transfer, Article 42, Paragraph 1 of my country’s Trademark Law stipulates:

When transferring a registered trademark, the transferor and the transferee shall sign a transfer agreement and ** *Same application to the Trademark Office. The transferee shall ensure the quality of the goods using the registered trademark.

As for trademark licensing, Article 43, Paragraph 1, of my country's Trademark Law stipulates:

A trademark registrant may license others to use its registered trademark by signing a trademark license contract. The licensor shall supervise the quality of the goods used by the licensee using its registered trademark. The licensee shall ensure the quality of the goods using the registered trademark.

In this sense, the protection of trademark rights by the Trademark Law is to protect the trademark owner’s control over the quality of the goods for which the trademark is used. One of the purposes of the Trademark Law is to encourage producers and operators to ensure that Quality of goods and services?.

It is worth mentioning that infringement of trademark rights does not require the infringer’s goods to be of poor quality. The reason is that the infringer’s behavior causes the trademark owner to lose control of the quality of the goods.

Therefore, as long as the production or sale of goods departs from the quality control of the trademark owner, the goods are "non-genuine"; others without authorization change the goods or other products in a way that deprives the trademark owner of quality control. Packaging may also constitute an infringement of trademark rights.

Trademark is a symbol that distinguishes the source of goods or services. A trademark is the "standard" and the quality of the goods or services is the "origin". The source of the value of a trademark lies in the quality of the goods or services. What is attached to the trademark Reputation is the public’s comprehensive evaluation of the quality of goods or services they use.

If the trademark owner cannot maintain or improve the quality of the goods, it will inevitably affect the public’s consumption choices and evaluations, and his trademark will eventually be eliminated in the competition.

3. Advertising function

The function of distinguishing the source of the trademark allows consumers to remember the source of the goods. The quality assurance function of the trademark makes consumers have the desire to buy again, and through consumption inform potential consumers.

Therefore, the trademark itself is a kind of advertisement, which is called the trademark owner’s silent salesman.

Trademark is not only a symbol, but also the most effective agent for creating goodwill and consumer acceptance. Trademark actually helps to promote goods.

In 1942, US Justice Frankfurter once pointed out:

We live in a world of symbols and choose products based on signs. Commercial signs are a quick way to promote goods, guide consumers to pick out the items they need, or choose what they think they need after being induced and persuaded. Trademark owners take advantage of this psychological tendency of the general public and use various means to promote the attractiveness of commercial marks in the market. They use them to instill product-related information into potential consumers, making them feel that the goods with a specific mark are what they need. of.

Today's advertising is usually not a simple and boring introduction to the performance of a specific brand of goods, but is committed to shaping the public image of the trademark, associating the brand with positive images such as vitality, freedom, and success, and striving for consumption. to achieve the purpose of marketing.

For example, Apple (Apple, iPod, iPhone, iPad, AppleWatch) is not only a product, quality, reputation and trademark, but also represents an image, taste, taste and lifestyle.

For another example, Absolut Vodka insists on using standard bottle shapes in print advertisements to create brand advertisements that are always the same but always different, producing lasting effects. Due to the creativity of the unique bottle-shaped brand symbol, it is loved and accepted by consumers, and the brand image established accordingly is highly recognized.

4. Symbol recognition function

When social production develops to a certain stage, people move from low-level material needs to spiritual needs such as taste, identity, status, and personality.

Compared with the traditional functions of trademarks, the emergence of the symbolic recognition function of trademarks is a natural result of the continuous improvement of people's psychological consumption needs in modern consumer society.

Nowadays, people's consumption concept has begun to change from "material consumption" to "meaning consumption", and businesses have begun to shift their focus from product attributes to value, culture, personality and other categories.

In addition to having the indicative meaning of "recognizing the brand for shopping", trademarks have also become a medium and bridge for social communication between each other.

As Starbucks CEO Howard Schultz said:

People walk into Starbucks stores for the romance of the coffee experience, as well as the feeling of warmth and enjoyment.

In addition to drinking coffee, people also enjoy the "third space".

For production operators, the significance of the commendation function of trademark symbols is mainly reflected in the following two aspects:

1. Enriching the means of competition for production and operation

2. Increased added value of products

In today's increasingly fierce market competition, due to the increasingly prominent tendency of product homogeneity, many well-known companies have begun to shift their business focus from production to marketing.

A LV handbag with a market price of 10,000 yuan has a direct production cost of about 1,000 yuan, but the brand value it carries often exceeds 9,000 yuan.

The reason why a brand can stand out from the market competition and be recognized by the public is not only that it has excellent quality and can meet people's specific material needs, but more importantly, it has high brand cultural content. It can bring spiritual enjoyment to people.

5. Goodwill accumulation function

The reason why consumers recognize brands and shop is because purchasing and using these brands will bring material enjoyment and psychological satisfaction.

Trademark is an objective sign of the goodwill that an enterprise has established. Without the source-distinguishing function played by trademarks, consumers would not be able to come back and buy products they already use and like.

If this consumer satisfaction and affection is the label of "goodwill", then a trademark is the mark that identifies that goodwill.

The symbolic value of the symbol and the functional value of the product ultimately end in the customer's perception.

There are two perceivable physical entities of a brand: commodities and trademarks.

They carry different functions, products realize experience, and trademarks carry cognition.

The president of Coca-Cola once said this:

Even if the Coca-Cola factory is burned down by fire overnight, as long as we have the trademark "Coca-Cola", we can make a comeback immediately. .

Without Coca-Cola’s continuous accumulation of goodwill, the president would not have been able to make such wild statements.

For companies that are building brands, trademarks are an important carrier and tool to condense and accumulate goodwill of goods. Without trademarks, the goodwill of the company will have nowhere to attach, making it difficult to establish.