How to judge whether a trademark has distinctive features 2010-04-06 13:30 The distinctive features of a trademark refer to the characteristics that a trademark should have that are sufficient to enable the relevant public to distinguish the source of the goods. The determination of the distinctive features of a trademark should comprehensively consider the sign itself (meaning, name and appearance) that constitutes the trademark, the goods designated by the trademark, the cognitive habits of the relevant public of the goods designated by the trademark, the actual use of the industry to which the goods designated by the trademark belong, etc. factor.

Article 11 of the "Trademark Law" The following signs shall not be registered as trademarks: (1) Only the common name, graphics, and model of the product; (2) Only directly indicating the quality and main raw materials of the product , function, purpose, weight, quantity and other characteristics; (3) Lack of distinctive features.

If the signs listed in the preceding paragraph acquire distinctive features through use and are easy to identify, they may be registered as trademarks.

Only the common name, graphics and model of this product. The common names, graphics, and models in this article refer to the names, graphics, and models stipulated in national standards, industry standards, or established by convention, and the names include full names, abbreviations, abbreviations, and common names.

(1) Only the general name of the designated product (2) Only the general graphics of the designated product (3) Only the general model of the designated product 4. Only the direct representation of the product Quality, main raw materials, functions, uses, weight, quantity and other characteristics

Merely direct representation in this article means that the trademark only represents the quality, main raw materials, functions, uses, weight of the designated goods , quantity and other characteristics are directly illustrative and descriptive signs.

(1) Only directly expresses the quality of the designated goods, but does not only directly express the quality of the designated goods. (2) Only directly represents the main raw materials of the designated goods, but does not directly represent only the raw materials of the designated goods. (3) Only directly expresses the function and use of the designated goods (4) Only directly expresses the weight and quantity of the designated goods (5) Only directly expresses other characteristics of the designated goods

1. 2. It only directly represents the specific consumer who is designated to use the commodity. Only directly indicating the price of designated goods 3. 4. Only directly expresses the contents of designated products. Only directly indicating the style or flavor of the designated product 5. Only directly indicating the use method and method of the designated product 6. Only directly indicating the production process of designated goods 7. Only directly indicating the place, time, and year of production of the designated goods 8. Only directly indicating the form of the product designated for use 9. Only directly indicating the validity period, shelf life or service time of designated goods 10. Only directly indicating the sales place or geographical scope of the product 11. A trademark that only directly represents the technical characteristics of the goods

(6) The trademark represents the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the designated goods. If the designated goods have such characteristics, The provisions of Article 11, Paragraph 1, Item (2) of the Trademark Law shall apply; if the designated goods do not have such characteristics and may mislead the public, Article 10, Paragraph 1, (8) of the Trademark Law shall apply. item provisions. In this case, the above two provisions should be applied at the same time and rejected.

5. Other signs lacking distinctive features: Other signs lacking distinctive features refer to signs other than items (1) and (2) of Article 11, paragraph 1, of the "Trademark Law" in accordance with common social concepts. It itself or used as a trademark on designated goods does not have the function of indicating the source of the goods.

(1) Overly simple lines and ordinary geometric figures, except those where the above lines, geometric figures are combined with text or other elements and the whole has distinctive characteristics.

(2) Overly complex text, graphics, numbers, letters or combinations of the above elements

(3) One or two letters in ordinary expressions, but not ordinary fonts or Except for those that are combined with other elements and have distinctive characteristics as a whole.

(4) Arabic numerals in ordinary forms are designated for use on goods that are customarily represented by numbers as models or product numbers, but they are not in ordinary forms or are combined with other elements to make the whole have distinctive features, or are designated for use in different products. Exceptions are made for products with model numbers or article numbers.

(5) Specify the commonly used packaging, containers or decorative patterns of the goods, except those that are combined with other elements and have distinctive features as a whole.

(6) Single color

(7) Phrases or sentences that are not original and express the characteristics of goods or services, but are original and not popular or are combined with other elements to have distinctive characteristics as a whole Except.

(8) Names of trading places commonly used in this industry or related industries, except those that are combined with other elements and have distinctive characteristics as a whole.

(9) Commercial terms or signs commonly used in this industry or related industries, except those that are combined with other elements and have distinctive characteristics as a whole.

(10) The organizational form of the enterprise, the name or abbreviation of the industry, except those with other constituent elements and the overall distinctive characteristics.

6. Examination of trademarks containing signs that do not have distinctive features. The signs that do not have distinctive features in this article refer to the common names, graphics, and models of the goods designated by the trademark, as well as those that directly indicate the quality, quality, and quality of the designated goods. Indications of raw materials, functions, uses, weight, quantity and other characteristics.

(1) A trademark consists of signs and other elements that do not have distinctive features. The signs that do not have distinctive features should be consistent with the characteristics of the goods for which they are designated, or will not be used based on business practices and consumption habits. causing misunderstanding among the relevant public.

If a trademark contains signs that do not have distinctive features, the applicant can limit the designated goods on the basis of the "Classification List of Goods and Services", so that the signs described in the trademark with non-distinctive features The content is consistent with the characteristics of the goods designated for use.

(2) If a trademark consists of signs and other elements that do not have distinctive features, and its use on the designated goods is likely to cause the relevant public to misunderstand the characteristics of the goods, even if the applicant declares that it has waived the exclusive right , the provisions of Article 10, Paragraph 1, Item (8) of the Trademark Law should still be applied for rejection.

1. It is easy for the relevant public to misunderstand the type of goods. 2． It is easy for the relevant public to misidentify the product model. 3. It is easy for the relevant public to misunderstand the quality of the goods. 4. It is easy for the relevant public to misunderstand the raw materials of the goods. 5. It is easy for the relevant public to misunderstand the function and use of the product. 6. It is easy for the relevant public to misunderstand the weight and quantity of the goods. 7． It is easy for the relevant public to misunderstand the flavor of the product. 8． It is easy for the relevant public to misunderstand the price of the commodity. 9. It is easy for the relevant public to misunderstand the production time of the product. However, this is excepted if business practices and consumption habits will not cause the relevant public to misunderstand the production time of the product. 10． It is easy for the relevant public to misunderstand the technical characteristics of the goods.

(3) If a trademark consists of a sign and other elements that do not have distinctive features, but it is difficult for the relevant public to identify the source of the goods through the other elements or the trademark as a whole, it will be determined to lack distinctive features and the Trademark Law will apply The provisions of Article 11, Paragraph 1, Item (3) shall be rejected.

Except if the other elements or the trademark as a whole can play a role in distinguishing the source of the goods.

7. Examination of trademarks that have acquired distinctive features through use

If a mark that does not have distinctive features itself has acquired distinctive features through use and plays a role in distinguishing the source of goods, it can be used as a trademark register. The review of a trademark that has acquired distinctive features through use shall take into account the relevant public’s awareness of the trademark, the applicant’s actual use of the trademark, and other factors that have enabled the trademark to acquire distinctive features through use.