The distinctiveness of a trademark is the most basic requirement for a trademark and is also the core feature for the survival of a trademark. When a logo is not distinctive or has weak distinctiveness, it usually should not be registered as a trademark. . However, what cannot be ignored is that in daily life, there are many signs that lack distinctiveness, but after long-term and persistent use, they have formed acquired characteristics among the relevant public to distinguish the origin of goods, and meet the basic requirements for trademark registration. Therefore, based on the impact of trademark registration on market competition, the distinctiveness of a trademark is divided into two types: "inherent distinctiveness" and "acquired distinctiveness". Inherent distinctiveness means that a certain mark itself has the distinctiveness required by the trademark law. [2] "Acquiring distinctiveness" is accompanied by the deepening of people's trademark awareness. Logos that originally lacked inherent distinctiveness are gradually recognized and acquired distinctiveness through long-term continuous use.

1. What is “trademark acquisition of distinctiveness”? "Trademark acquires distinctiveness" means that a mark that originally lacked inherent distinctiveness acquires new meaning through long-term and continuous use, and when it has the ability to identify goods, the mark is deemed to have distinctive features. [3]

The basic function of a trademark is to indicate the source of goods or services through a certain logo, thereby allowing the relevant public to distinguish between different goods. Therefore, a trademark must be distinctive to identify the source of goods. effect. In a general sense, "distinctiveness" refers to the inherent independent characteristics of a trademark that are different from other marks. "Acquired distinctiveness" is an imported product in my country. There was no provision for "obtaining distinctiveness" in the original Trademark Law. However, with the emergence of a large number of special cases such as "Wuliangye" and "Business Tong", in 2001, when my country revised the Trademark Law for the second time, it legislatively The "trademark acquisition of distinctiveness" system was officially confirmed.

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 direct Indicates the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the goods;

(3) Other 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.

2. Analysis of the application of "trademark acquisition of distinctiveness" in judicial precedents. In judicial practice, administrative cases of trademark confirmation are one of the important types of cases heard by our country's courts. In recent years, the number of such cases has also increased. The number of cases has increased year by year, and the issues of factual determination and legal application of "trademark acquisition of distinctiveness" have also become prominent.