1. Principle of legality

Like all trademarks, three-dimensional trademarks must not violate public order and good customs, nor may they be inconsistent with the nature, quality, or production of goods or services. The source deceives consumers.

For example, the appearance of an Islamic mosque cannot be registered as a three-dimensional trademark, which may cause consumers to misunderstand that it is a halal product, may also cause a misunderstanding of the place of origin, and may also cause confusion among Muslims. Dissatisfied; again, a bottle imitating the shape of the Eiffel Tower is used to hold wine. Everyone knows that French grapes are enjoyed all over the world. France is also the country with the most registered wine certification trademarks. The annual wine export volume reaches more than 20 billion US dollars. , and the Eiffel Tower is a symbol of France, so using bottles that imitate the shape of the Eiffel Tower to hold wine will make consumers feel that the grapes are produced in France. If the wine is not produced in France, it will be wrong. Consumers have been deceived, so bottles that imitate the appearance of the Eiffel Tower cannot be registered for wine.

2. Principle of distinctiveness

The prior rights mentioned here refer to prior trademark rights and other prior rights. As far as prior trademark rights are concerned, my country has just begun To protect three-dimensional trademarks, only the rights that were filed first can avoid conflicts through inquiries. As for other prior rights, mainly the prior design rights, as a trademark agent, it is difficult to avoid conflicts in this area. Register as a general trademark Based on our experience, we could only assert our rights by raising objections during the announcement period or improperly canceling the registration after registration. To obtain registration of a three-dimensional trademark, in addition to complying with the general principles of trademark registration, there are also some special requirements, also known as restrictive conditions.

1. The appearance of the goods due to their own nature cannot be registered

This provision is aimed at the registration of the appearance of the goods, which lacks any special features compared with its natural state or usual processing state. In other words, this appearance is only a description of the product and cannot serve as a trademark to distinguish the source of the product.

Due to different molecular structures, specific shapes will be produced during the crystallization process. Water crystallizes into the shape of snowflakes. These two shapes are the natural solid state of water, or due to their properties. The resulting shape cannot be registered. Of course, no one will register a snowflake-shaped three-dimensional trademark for snow. By analogy, the three-dimensional shape produced by strong crystals of rock sugar cannot be registered, and alum cannot register the three-dimensional shape produced by alum crystals. three-dimensional shape.

In addition to the natural state that cannot be registered, the processed state cannot be registered. For example, if a diamond is re-processed into a shape with a small bottom and a large top with multiple reflective surfaces, it cannot be registered because it cannot be processed otherwise. It reflects light very well but does not look beautiful. This shape is determined by the processing status and cannot be registered.

2. The appearance determined by the function of the product cannot be registered

The functions mainly include two types: technical function and aesthetic function

1) Technical function

The so-called technical function is that the appearance of the product is more conducive to the use of the product or reduces the processing cost. We consider this appearance to have a technical function. The regulation that the appearance of goods with technical functions cannot be registered is mainly to prevent the circumvention of patent laws. Because a purely functional shape should be protected by an invention patent and eventually enter the public domain, the owner cannot be allowed to register it as a trademark that can be renewed indefinitely. Functional shapes, in addition to being protected by invention patents, should be freely available to competitors.

2) Aesthetic function

Three-dimensional shapes with aesthetic functions cannot be registered as three-dimensional trademarks. The purpose of this provision is to prevent the purpose of a trademark from being distorted and thereby damaging copyright and design rights. Appearances with aesthetic functions are subject to copyright or design patent protection.

When designing trademarks, companies try to make them as beautiful as possible, so it is impossible to exclude the aesthetic function of trademarks. Since the aesthetic function of trademarks cannot be eliminated, and trademarks with aesthetic functions cannot be registered, this is not impossible. Is it registered? Legal experts have also seen this problem and proposed that if the recognition function of this three-dimensional shape is greater than the aesthetic function, it can be registered. If the aesthetic function is greater than the recognition function, it cannot be registered.

How to judge whether the aesthetic function or the recognition function of a three-dimensional shape is greater? There is a simple method: ask an ordinary consumer who is about to buy this product, "If the product changes its shape, Will you still buy it? ”

If he will still buy it, it means that the shape has the identification function of a trademark and can be registered. But if the answer is not to buy it, it means that the appearance is of decisive significance: it is this appearance that consumers buy. The shape therefore has an aesthetic effect and cannot be protected by trademark law.

A lighter in the shape of a pistol or grenade. Its appearance is obviously more aesthetic than identification. I bought a lighter of this shape. I would not buy another shape. And if you change the square flip cover of an ordinary Langsheng lighter into an arc shape, add a button at the junction of the side flip cover and the body of the lighter, and then make a groove along the side of the lighter, then this kind of lighter can be registered. , this is the three-dimensional trademark of the most famous "Zippo" lighter in the world.