First, the division of meaning.
(1) A trademark is a strong trademark if its symbolic elements are self-created meaningless words or phrases, or shapes expressed by animal cartoons or special techniques. The inherent distinctiveness of a trademark is not only reflected in the content of its symbolic elements, but also in the forms of its symbolic elements. Taking the word mark as an example, its intrinsic meaning is not only reflected in the combination of words, but also in its form of expression, that is, fonts or combinations with certain design elements, such as special fonts and handwriting (including signatures). Generally speaking, the stronger the inherent distinctiveness of a trademark, the greater the possibility of obtaining special protection.
(2) If the tracer element of a trademark is ordinary meaningful words or phrases, or ordinary patterns on some commodities, or ordinary forms of natural animals, then the trademark belongs to a weak trademark.
(3) If a trademark is composed of insignificant symbols, it is not a trademark, but a symbol.
Second, inherent prominence and acquired prominence.
Inherent salience and acquired salience are the most important concepts in traditional theory, but recently some scholars have clearly pointed out: "Inherent salience and acquired salience bring more confusion than they solve problems." This conclusion may be biased, but it is by no means groundless. Let's make a brief analysis here, and discuss it in detail in another article.
According to the qualified degree of trademark protection, the traditional theory divides various signs into five types:
(1) common names, (2) descriptive words, (3) suggestive words, (4) random words and (5) fictional words.
Among them, suggestive, random and imaginative words are inherently significant, while descriptive words and generic names are too closely related to the marked goods. There is no intrinsic meaning. The so-called inherent distinctiveness means that the trademark mark cannot be reasonably understood as the description or decoration of the goods to which it is attached, and consumers will automatically regard the mark as a representation of the source of the goods, so it can be directly registered as a trademark; However, directly describe the nature, source, composition, etc. A product or logo that can reasonably be regarded as product decoration is not obvious and may not be registered as a trademark. Among them, if descriptive or decorative signs are recognized by consumers after long-term use, they will have the second meaning or secondary meaning to indicate the origin of products, and then obtain the salience required by the Trademark Law. Traditional theory is also called "prominent fiction".
In fact, "from the perspective of modern linguistics, no meaning can be inherent in words, and the meaning of words can only be the product of social communication." As a commodity language, trademarks are no exception. Without a natural trademark, even if a trademark with inherent distinctiveness is registered or used at the beginning, it is impossible for consumers to automatically identify it as a trademark immediately. The distinctiveness of trademarks can only be truly obtained through commodity marketing or advertising. In this sense, a trademark cannot be born with distinctiveness, and distinctiveness can only be acquired the day after tomorrow.
At the same time, it must be noted that the inherent salience only describes the relationship between a sign and its marked object from a negative or negative aspect. Logically speaking, the definition cannot be negative. In fact, it is not a sufficient condition or even a necessary condition for symbols to play their marking and distinguishing roles, because descriptive words with no inherent meaning can also play their marking and distinguishing roles after obtaining the second meaning. Therefore, the so-called inherent distinctiveness can only be regarded as a favorable condition for a trademark to obtain distinctiveness at most. Obtaining distinctiveness is real distinctiveness, not fiction, and it is acquiring distinctiveness that determines the strength of a trademark.
There are many discussions on the above viewpoints in foreign legal documents. The Restatement of the American Anti-Unfair Competition Law emphasizes that the inherent distinctiveness of a trademark "is not decisive for the strength of a trademark, because the strength of a trademark ultimately depends on the degree to which potential consumers associate the trademark with a specific source." Some judicial opinions also show a similar tendency: "Although technically speaking, JBJ is a strong trademark, in business practice, it is only a weak trademark because consumers hardly know this trademark."
"Ruling that a trademark has inherent distinctiveness does not guarantee that the trademark is a strong trademark, because inherent distinctiveness does not guarantee that the trademark has strong distinctiveness in the market." This shows that the inherent distinctiveness has little influence on the actual distinctiveness of trademarks.
Third, the practical significance and potential significance
In the practice of trademark protection, salience cannot be strictly quantified as arithmetic. "When a sign has a strong salience, it is impossible to make a general description. For example, by setting a percentage, when the percentage of consumers who regard a logo as a trademark reaches that percentage, the logo is significant. " Obviously, if all consumers in the market realize that a trademark is a manufacturer or service provider of related products, then it is a strong trademark. On the contrary, if no one thinks that logo has the above functions, it is meaningless.
However, in reality, no demarcation point can be quantified as a specific percentage. Below this cut-off point, the trademark that was originally remarkable is no longer remarkable. For those goods or services that people rarely buy and have a long service life, ordinary consumers only visit such markets occasionally, and people will not pay full attention to such goods or services until there is such demand. Other brands of goods or services have great influence on the whole society, and even people who have no purchase demand will pay full attention to them. Therefore, even if a quantitative cut-off point is to be determined, the specific percentage of the cut-off point should be different according to the type of goods or services, which makes this quantification impractical.
Therefore, trying to quantify the significance confuses two concepts: one is the actual recognition of a trademark by the public; Second, the ability of a trademark to indicate the source of a product or service in the relevant market. The actual identification of trademarks can often be quantified through market research, while the marking ability of trademarks to the source of goods or services is difficult to quantify, because it contains both actual and potential marking ability. Therefore, the actual awareness is not a standard to measure the ability of a logo to distinguish products.
Obviously, meaning can be divided into actual meaning and potential meaning. Chinese scholars have also discussed this: "the distinctiveness or identifiability of trademarks, that is, the characteristics that can play a significant role, should only be understood as a possibility, and it does not necessarily need to be actually possessed in real life." Trademarks with low actual salience may have high potential salience. Actual salience often represents the actual market recognition of trademarks, while potential salience is only the possibility of recognition. In this way, the potential meaning seems to be equal to the internal meaning, while the actual meaning seems to correspond to the acquired meaning. In fact, this is not always the case. Trademarks with low inherent distinctiveness, such as CocaCola and Microsoft, are originally descriptive and can also become strong trademarks, so they have high potential distinctiveness and in fact high actual distinctiveness. Whether the potential meaning can be fully realized depends mainly on the marketing ability and strength of the trademark owner, and has little to do with the attributes of the trademark itself. In this way, the initial choice and design of trademarks by enterprises is not as important as people think. Of course, practical meaning and acquired meaning can indeed be equated.