Hello, 1. Product identification function Generally speaking, the basic function of a trademark is to distinguish the source of goods or services, which is the most basic "identification function" of a trademark. It closes the connection between consumers and producers and operators, like a road sign guiding consumers to correctly find the goods they need. As an American scholar said: "Trademarks are as useful for identifying goods as names are for identifying individuals. Without identifying marks, people will no longer be proud of their craftsmanship, because excellent quality will lose the honor it deserves. , there is no need to bear responsibility for poor quality. The consequence of the implementation of anonymity will be to produce the worst products instead of the best, because it is more convenient and more profitable for products and humans to produce the worst products. If we lose the trademark that identifies the goods, it will be impossible to distinguish which ones are good and which ones are bad. "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 the most consumers, they must use eye-catching trademarks on their products to make them easier for consumers to identify. From the perspective of consumers, being able to purchase the goods they want based on the trademarks they recognize is also the key to protecting their rights and interests. In other words, another function of the identification function is that manufacturers can establish direct contact with consumers beyond the shoulders of retailers, and thus establish credibility in the minds of consumers, making it possible to achieve resale. To achieve the above dual purposes, a trademark, as a basic sign that distinguishes the source of a specific product, must be unique and distinctive, that is, it can only be owned by one company, and the trademarks used by different companies on the same goods or even different goods must be distinguishable from each other. Otherwise, consumers will be confused, misunderstood, or even deceived, and the interests of both manufacturers and consumers will be harmed. Article 28 of my country’s Trademark Law stipulates that the Trademark Office shall reject and not announce an application for trademark registration that is identical or similar to a trademark that has been preliminarily approved or registered by others on the same or similar goods. If the "Regulations on the Implementation of the Trademark Law" requires the assignment or transfer of a registered trademark, the trademark registrant shall assign or transfer the same or similar trademarks registered on the same or similar goods. If the trademark registrant does not assign or transfer the trademark together, he must make corrections within the time limit required by the Trademark Office, otherwise it will be deemed to have given up the application to transfer the registered trademark. It is not difficult to see from the above provisions that in order to ensure that trademarks realize their identification functions, my country's Trademark Law strictly ensures that identical or similar trademarks on the same or similar goods are owned by the same entity, regardless of the application process or subsequent management procedures. With traditional theoretical understanding. However, with the development of the times, some countries now believe that the same or similar trademarks on the same or similar goods belong to different entities, which does not necessarily lead to consumer confusion and misunderstanding, nor does it necessarily weaken the identification function of the trademark. For example, the European Union believes that under market economy conditions, the exclusive right to use a registered trademark is essentially a private right and should be disposed of by the owner. If the trademark owner manages its trademark well, the rights and interests of consumers can be better protected. There is no conflict of interest between the trademark owner and the consumer. Based on this view, the European Union's Office for Harmonization in the Internal Market has abolished the ex officio review of prior rights in the registration procedure, allowing trademark owners and/or other prior rights owners to directly resolve any possible disputes with new trademark registrants. Space is left for conflict. In trademark assignment or transfer procedures, the EU also allows trademark owners not to transfer identical or similar trademarks together. The EU's reasoning is that trademark transfer is an independent commercial decision made by the trademark owner based on its private property. The long-term experience of EU countries shows that the interests of consumers will not be affected by such commercial transfer. In other words, this transfer does not weaken the identification function of the trademark. The author believes that the realization of the trademark identification function is closely related not only to the distinctiveness and uniqueness of the trademark itself, but also to the cognitive level of consumers in related fields. There is an inverse relationship between the two: the higher the consumer's cognitive level. , the weaker the distinctiveness and uniqueness of the trademark itself can be, without affecting the realization of the trademark identification function; the lower the level of consumer awareness, the stronger the distinctiveness and uniqueness of the trademark itself should be to ensure the trademark identification function.

Based on the current national conditions of our country, we should adhere to the provisions of the current laws to ensure the realization of the trademark identification function. Otherwise, confusion and misunderstanding will inevitably occur and the legitimate rights and interests of consumers will be harmed. 2. Quality Assurance Function British judges recognized the relationship between trademarks and product quality as early as the 19th century: “Even if the public does not know the specific producer, as long as the connection between a trademark or name and the source of the product has been regarded as a guarantee of quality, means that the trademark or name can be protected.” By the 1980s, American trademark law scholars proposed a systematic quality assurance function theory. The quality assurance function theory is an extension of the anonymous source theory: if consumers don't care about the specific origin of branded goods, then what do they care about? The answer is that goods using the same trademark have constant quality. Therefore, the source of goods in the sense of contemporary trademark law does not refer to the specific producer of the goods, but refers to the abstract source of the goods, which is responsible for ensuring the quality of the goods. The source of this abstraction is the trademark used on the product. In fact, a trademark does not necessarily guarantee excellent quality. What it really guarantees is "consistency", that is, the goods consumers buy today are the same in quality as the goods they bought yesterday. Therefore, rather than saying that trademarks have the function of guaranteeing the quality of goods, it is better to say that trademarks have the function of guaranteeing the "consistency" of goods, which leads to the subordinate function of "guaranteeing the quality of goods". The quality guarantee function of a trademark on goods can not only reflect the first-class quality of the goods, but also reflect the low price and high quality of the goods. It can even mean that the goods are shoddy and of low quality, but it does not necessarily mean that the goods are of high quality. The first legislative purpose of my country's Trademark Law emphasizes the need to "encourage producers and operators to ensure the quality of goods and services", and stipulates in Article 45 that industrial and commercial departments at all levels distinguish between different situations and may impose penalties on those who use registered trademarks. In the case of shoddy goods or shoddy goods, the parties concerned shall be ordered to make corrections within a time limit and may be notified or fined. The Trademark Office may even revoke their registered trademarks for serious acts. It can be seen that the quality assurance function given to trademarks by my country's Trademark Law is quite special. It not only ensures the consistency of goods, but also ensures that the goods have good quality. To investigate the reason, we have to go back to the source. In 1963, the 91st meeting of the Standing Committee of the Third National People's Congress approved the Trademark Management Regulations. Article 1 of the regulations clearly stipulates that the purpose of formulating the regulations is to "strengthen trademark management and encourage enterprises to ensure and improve product quality." At that time, trademarks were regarded as "marks representing a certain quality of goods." Only companies whose products met certain quality standards were eligible to use trademarks, and the trademarks used by companies must apply for registration with the Central Administration for Industry and Commerce. In this case, the trademark is actually a sign of "qualified quality", and a product quality specification form must also be filled in when applying for trademark registration. In 1982, when the current Trademark Law was formulated, trademark quality assurance still occupied an important position in the legislative purpose. Although most products can be sold without using registered trademarks or even using trademarks, some products still need to use registered trademarks, otherwise they are not allowed to be produced and sold. It can be seen that a registered trademark has the characteristics of a "high quality" mark. Later, when the Trademark Law was revised twice in 1993 and 2001, the expressions related to quality content were retained. During the third revision of the Trademark Law, there is an opinion in the society that the main function of a trademark is to distinguish the source of goods or services, rather than to ensure the quality of the goods. The provisions on product quality in the Trademark Law were the result of the incomplete quality assurance legislation at that time, and were tinged with planned economy. With the improvement of my country's quality assurance legislation, quality management should be regulated by specialized legislation such as the Product Quality Law and the Consumer Rights Protection Law. At present, the provisions of the Trademark Law on quality assurance are basically difficult to play a practical role. , there are extremely few cases in which trademark authorities and law enforcement agencies invoke quality clauses to investigate and deal with registered trademarks in practice. The author agrees with the above views, but I believe that the time is not yet ripe to cancel the terms related to quality. Food safety accidents have occurred frequently in China in recent years, and public trust in the quality of industrial and agricultural products has decreased. In this context, it is not appropriate to cancel the provisions related to quality assurance in the Trademark Law. 3. Advertising Function With the development of the commodity economy, trademarks have gradually derived their "advertising function". However, there is considerable controversy over the legitimacy of the advertising function and the extent to which the law allows its existence.

At first it was believed that the law only protects the identification function of trademarks and not the advertising function of trademarks, because the basic principle of common law is to encourage competition and protect the monopoly of names only in a secondary sense and only exist within a limited scope. Large-scale persuasive advertising causes economic waste and distorts consumer choices; moreover, advertising persuasion does not create aggregate demand, but only increases people's desires. Effective needs are determined not by what we want, but by the purchasing power created by productivity. But later people discovered that without the advertising function of trademarks, consumers would not know how to choose the products they need among the vast sea of ??goods. This is an undesirable result in modern society. At the other extreme of the problem, we will find that if consumers have few products to choose from and there is no choice cost, it will easily lead to producers and service providers using their exclusive position to infringe on consumer rights, and there is also the risk of supply shortages. Therefore, we can only choose a balanced state between the interests of multiple parties: not only to enable consumers to purchase the goods they need conveniently, but also to maintain orderly competition among producers and operators. From a utilitarian perspective, the law should also recognize and protect the advertising function of trademarks. my country's Trademark Law does not clearly define the advertising function of trademarks, but judging from the factors that determine the use of trademarks and the identification of well-known trademarks, the advertising function of trademarks is allowed and moderately protected. For example, Article 14 of the Trademark Law stipulates that when determining a well-known trademark, the duration, procedure and geographical scope of the trademark’s publicity shall be considered; the use of a trademark referred to in Article 3 of the Implementation Regulations of the Trademark Law also includes the use of the trademark for advertising. publicity. With the continuous development of the economy and society, in addition to the above three functions generally accepted by industry insiders, trademarks have gradually derived other functions, such as cultural functions, commendation functions, etc. In fact, these functions are nothing more than additional functions produced by the three basic functions of trademarks. They can be said to be accompanying phenomena and the inevitable product of an enterprise's trademark management reaching a certain level. The author believes that as the understanding of trademark functions continues to deepen, companies will pay more attention to the registration, management and protection of trademark exclusive rights, and will promote the continuous innovation of the functional connotation of trademarks. The two will form a positive interaction and form a good innovation in our country. Atmosphere. I hope it helps you and I hope you will adopt it