From the perspective of trademark law, there are many points for attention in trademark design selection, such as legality and distinctiveness. This paper focuses on sorting out unsuccessful cases due to lack of distinctiveness from the perspective of Chinese trademarks and puts forward countermeasures to provide reference for enterprises to choose Chinese trademarks.
1. Trademark registration must be significant
Designing and selecting a good trademark is the cornerstone for enterprises to implement trademark strategy. In Chinese-speaking areas, Chinese trademarks are highly recognizable, so they are the first choice for enterprises in China. Large enterprises often spend a lot of money to collect names, such as Honda of Japan. According to the statistical analysis of trademark registration, some enterprises may not conduct trademark registration evaluation and establish a trademark management system because of business needs or other reasons (refer to "Required Reading for Corporate Law: How to Establish a Company Trademark Management System"), which leads to the rejection of Chinese trademarks after extensive use, and the failure of subsequent rejection review and litigation, which leads to the weakening of trademark defense or forced renaming, and a large loss of commercial interests.
paragraph 1 of article 9 of the trademark law? The trademark applied for registration shall have distinctive features and be easy to identify, and shall not conflict with the legal rights previously obtained by others. ? Trademarks must be distinctive. A trademark with strong distinctiveness distinguishes the source of goods or services more strongly, and it is easier to succeed in trademark objection. In infringement protection, it is easier to identify others as malicious.
II. Cases of unsuccessful registration due to lack of distinctiveness in practice
Chinese characters in China are polysemy, and a word (word) not only has its inherent meaning, but also has other meaning brought by its use (dissemination). If a trademark is used by an enterprise, it will bring consumers a cognition in the trademark sense, and this cognition is stronger than the inherent meaning of the trademark and reaches a level that consumers are familiar with, thus generating a unique correspondence with the applicant and playing a role as a trademark indicator commodity.
article 11 of the trademark law? The following marks shall not be registered as trademarks: (1) Only the common name, figure and model of the commodity; (2) directly indicating only the quality, main raw materials, functions, uses, weight, quantity and other characteristics of commodities; (three) other lack of distinctive features.
the marks listed in the preceding paragraph can be registered as trademarks if they have been used to obtain distinctive features and are easy to identify. ?
for other provisions, please refer to the examination of trademark salient features in Part II of the Trademark Examination Standards.
(1) trademark office stage (part)
(2) court stage (part)
1. Beijing Higher People's Court (213) No.734? The objected trademark is only made up of? No trace? Chinese characters with two standard fonts are composed, and there are no other elements. However, when this vocabulary is used on designated non-metallic clothes hangers, non-metallic accessories for furniture and other commodities, it is easy for the relevant public to think that after using this commodity to hang clothes or removing the accessories used on furniture, there will be no traces left on clothes and other hung objects or furniture. Relevant public to mark? No trace? The above knowledge and understanding formed by the designated commodity is the understanding of the function and effect of the commodity, so the use of the objected trademark on the designated commodity only directly describes the functions and effects of the commodity. ?
2. Beijing Higher People's Court (214) Gao Xing (Zhi) Zi No.2956? The objected trademark is word mark. Before the board? What does it mean in Japanese? Japanese chefs and chefs? And so on, designated for sushi, instant rice and other commodities, can only directly represent the producer of the commodity, can not play a role in distinguishing the source of the commodity, and is not significant. At the same time, the evidence provided by the applicant in the trademark review stage is less, which cannot prove that the objected trademark has achieved remarkable characteristics after being used in Chinese mainland, and can be registered as a trademark. ?
3. Beijing Intellectual Property Court (215) Jing Zhi Xiang Chu Zi No.921? The trademark in dispute is a combination of words and graphics, and its Chinese recognition part? _ health _? It is the main reading part. ? Fish raw? It is a cooking method of local cuisines in China. ? _ health? With? Fish raw? They are similar in word composition, meaning, calling and visual effect. ? _ health? It directly expresses the characteristics of the service content, and it is difficult for the relevant public to identify the disputed trademark as a trademark that distinguishes the service source when it is used in restaurants, fast food restaurants and other services. Therefore, the trademark in dispute can't play the role of identification, and it doesn't conform to the provisions of Item (2) of Paragraph 1 of Article 11 of the Trademark Law, so it can't be registered as a trademark. ?
III. Matters needing attention in choosing Chinese trademarks for enterprises
For startup companies or companies preparing to cultivate new brands, you can choose Chinese trademarks with reference to the above contents. Attention should be paid to the following items for trademarks that have been used:
(1) Use Chinese trademarks that lack distinctiveness in order to obtain distinctiveness;
as mentioned above? Little sheep? Trademark, which was later considered by Beijing High Court. Little sheep? Through the large-scale use and publicity of Inner Mongolia Little Sheep Company, the content of trademark application enjoys a certain popularity among the relevant public, and consumers can identify the service source of Little Sheep Company. It has acquired distinctiveness and is easy to identify, so it should be registered as a trademark.
Disadvantages, such as the Compass Company mentioned above, can't enjoy the strong protection of registered trademarks, so we can only put? Compass? As a business name, it is used in commercial operation and publicity activities, and provides evidence when infringing? The unique name of a well-known commodity? Conduct unfair competition protection.
(2) For Chinese trademarks with weak distinctiveness, we should strengthen the protection of trademark rights (such as applying for a transitional trademark and transferring the brand to a place where the trademark is firmly protected) or increase graphic trademarks to increase distinctiveness. Furthermore, we should add distinctive (brand) words on the basis of the original brand, such as China Agricultural Bank? Jinsui? Such as
shortcomings, as stated in the judgment of Shandong Higher People's Court (211) Lu Min San Zhong Zi No.144 on whether Jinan Exiangqing Company infringes the exclusive right to use the trademark of Beijing Exiangqing Company? Hunan and Hubei love is only a part of the trademark, and its significance is weak. Hunan and Hubei love? It is not established to claim the exclusive right to use all its registered trademarks in three Chinese characters. ? Hunan and Hubei love? Where is the combination of words? Hunan and Hubei? On the basis of the simple added one? Love? Word, catering industry, right? Hunan and Hubei? The widespread use of word formation methods will inevitably lead to? Hunan and Hubei love? The recognition is weakened. So,? Hunan and Hubei love? The word "three" is a weak part of the whole trademark. In summary,? Hunan and Hubei love? Words are not the main part of identifying the trademark. Beijing exiangqing company is weak in significance? Hunan and Hubei love? Three words to claim that Jinan Xiang' e Qinghuai Company infringes on the exclusive right to use registered trademarks is not established. ? In the end, safeguarding rights is unfavorable.
iv. Conclusion
It is true that the survival and development of enterprises are the first, but it is also sad that the accumulated goodwill is lost in vain.
In order to reduce the risk of trademark registration, enterprises discussed in this paper should not only refer to the above matters, but also establish brand protection awareness, establish corresponding brand protection institutions and establish a trademark management system. Through the information provided by this system, they can grasp the development of competitors, understand the economic trends, identify business opportunities and develop more world-renowned brands.