The concept of non-traditional trademark legal protection

Trademark law has always been pursuing competitive equilibrium in the market. It is important to protect the interests of trademark owners and prevent consumers from confusion, prevent market monopoly and safeguard the right of other competitors to compete freely.

Abstract:

The scope of registrable trademarks stipulated in China's Trademark Law has expanded from traditional trademarks such as words and graphics to new trademarks such as colors and three-dimensional marks, which not only reflects the transcendence of the system, but also contains the conceptual transformation from paying attention to trademark forms to attaching importance to trademark functions, from consumption of things to conforming consumption, and from abstract thinking to type thinking. As long as a specific mark can identify the source of goods or services, and its protection by trademark law will not have adverse effects on market competition, it should be allowed to be registered as a trademark, and should not be limited by its specific manifestations. Only in this way, the trademark law will respond to the development of market economy and the challenge of globalization, and maintain its own times and advanced nature.

Keywords:

non-traditional trademarks; Trademark function; Meet consumption; Typological thinking

In 21, when China revised the Trademark Law, three-dimensional trademarks (three-dimensional signs) were included in the protection scope of China's Trademark Law. In 213, when we revised the Trademark Law, we once again included color combinations and sounds in the category of conformity that can be registered as trademarks. From traditional trademarks such as words and graphics to new trademarks such as colors and three-dimensional signs, it not only reflects the transcendence of the system, but also contains the renewal of ideas. With the emergence of new trademarks, it is undoubtedly of great significance to understand the concept transformation contained in the legal protection of new trademarks for the full and effective protection of new trademarks.

First, from paying attention to the form of trademarks to attaching importance to the functions of trademarks

"When the humanities of the whole society without exception begin the post-modern journey, it is doomed that law will also set up the banner of post-modernity for the first time in history." Although there are quite different opinions about the post-modern concept itself, it is generally recognized that the post-modern concept itself represents the innate rebellion of doubting everything and overthrowing everything. The post-modernist world is no longer a world that can be unified and reasonably reconstructed, but a world full of paradoxes, fuzziness and uncertainty. "Everything becomes confused, the boundaries change, and the categories are vague; The task of philosophers is to reject stable identity and affirm differences and differences. " Under the post-modernism, the superiority of language communication is being eroded, and human beings are in an era of rich symbols, meaning is everywhere, not only from the exchange of words, but also from sensory experience, personal behavior and physical environment; The use of generalized assumptions in philosophical theory has been challenged, and the concept that meaning is determined by prominent facts has been impacted by postmodernism. Personalized meaning comes from a specific context, that is, meaning is accidental, personalized and contextualized. Facing the baptism of post-modernism philosophy, in order to regulate the current market economy more effectively, as a trademark law to adjust the meaning of identifying symbols in the market, we must face up to the infinity of meaning resources in the market and face the reality that meaning comes from context and experience rather than the internal essence of things in the post-modernism context, which is undoubtedly the post-modernism context of trademark law in the 21st century.

tracing back to the history of trademark law, we can't find the reason that trademarks must be flat trademarks such as words and graphics. According to the inherent nature of things, the trademark law can be attributed to the power of habit and the inertia of history. For a long time, trademark law has been pursuing the competitive equilibrium of the market. It is important to protect the interests of trademark owners and prevent consumers from being confused, prevent market monopoly and safeguard the right of other competitors to compete freely. Text, graphics and other graphic signs are "natural" based on their own inherent characteristics, which are in line with the value pursuit of trademark law. The monopoly of a certain word mark by the right holder will not affect other competitors' production of competing goods; In addition, in the era of relative scarcity of goods, new trademarks such as sound and color have little to do with identifying the source of goods, whether in fact or in people's minds, and people are almost always faced with traditional trademarks. As a result, habits have solidified the concept that "trademarks are symbols such as words and graphics" in people's minds, and trademark law also sets the nature of things as the protection standard of trademarks, and regards traditional symbols as the true state of trademarks. However, the way of presupposing the elements of a trademark by the form of the logo itself, if it is possible to temporarily coordinate with reality in the era of underdeveloped commodity economy, is increasingly challenged by postmodernism at present.

Post-modernism opposes the presupposition of hypothetical structure, dispels the long-established monopoly situation of plane trademarks, and advocates that meaning comes from individualized context rather than being determined by abstract standards. Our sense of symbols is in an uncertain state, and the society we live in is becoming more and more visual and less lexicalized. The increasing trend of non-textual society has promoted the importance of new trademarks such as three-dimensional trademarks as identification symbols, and the increasingly rich, in-depth and complicated visual signs in modern society have also enhanced consumers' dependence on three-dimensional signs. In this social background, a wide range of new logo series, mainly three-dimensional trademarks, are increasingly being used as trademarks by identifying the source of products, and the assumption of trademark elements in trademark law has been out of date. "Trademark law should focus on the ability of a mark to identify goods or services, rather than its ontological form such as color, shape and words". 5 As a human behavior norm, the formulation or acceptance of laws comes from something. In terms of the composition of legal concepts, we must consider whether the legal concepts have the function of realizing the expected purpose or value. 6 In view of the fact that the "morphological theory" of trademark constituent element standards has been constrained by the market economy, Trademark law can adopt the model of teleology, which judges whether a specific mark will help realize the purpose of trademark law as a trademark constituent element, and bases trademark protection more on the actual role of various marks in society than on general assumptions, as long as the specific mark can identify the source of goods or services and the protection of trademark law will not have adverse effects on market competition. It should be allowed to be registered as a trademark, not limited to its specific performance as words, graphics or appearance. Only in this way can the trademark law keep up with the development of market economy and the challenge of globalization.

Second, from the consumption of things to the consumption of symbols

Baudrillard, a famous French sociologist, believes that today's society has become a consumer society in a sense. "Consumption has replaced production and become the center of society, and consumption is no longer only negative, but has become a positive way of construction." The whole process of production is the process of manufacturing consumption. Consumption no longer stays at the level of meeting physiological needs, but has more social and cultural colors. Consumer goods have actually become a classification system, symbolizing and standardizing human behavior and group identity. In addition to use value and exchange value, goods are loaded with symbolic value that can refer to inter-consumer relations. The generation of symbolic value is a fundamental feature of consumer society. Symbolic value is defined by its rank and position in the whole commodity differentiation system. In modern society, people are integrated into the social stratification system through consumption rather than production. The value of modern commodities to people is not only use value and exchange value, but also symbolic value.

As a symbol, commodities can provide prestige and express consumers' personality, characteristics, social status and power. In the context of consumer society, when we consume goods, we are consuming symbols, and if goods are to be the object of people's consumption, we must also complete the process of symbol transformation. Through the relationship between symbols, differences can be established, and people gain certain social status and social significance through this difference. In the context of consumer society, "I am what I buy", trademarks, as an important carrier of commodity symbolization, are also facing the challenge of diversification of constituent elements. The consumption in the present sense has changed from the consumption of things to the consumption of symbols. Enterprises all strive to inject symbolic value into their own goods to meet the needs of specific consumer groups. As a competitive means for enterprises, trademarks have undoubtedly become an important carrier of this "symbolic value". Brand phenomenon is a systematic symbolic operation behavior, which can help the symbolic value of things to be recognized and realized. In fact, The function of trademarks, especially well-known trademarks and well-known trademarks, has changed, that is, from a single distinction between the origin and quality of goods or services to the reputation of a carrier enterprise independent of the origin. While distinguishing goods, trademarks also distinguish people who use the goods, which is a symbol of a person's level, lifestyle and social status. "McDonald's" has successfully created a cordial, friendly and helpful image for itself and become the representative of the most avant-garde and stable product quality and service model.

As a code of consumer culture in a mature consumer society, trademarks have escaped from the "cage" of manufacturers and products, and become an independent narrative subject for the first time. Because of getting rid of the restriction of specific products, it is no longer a "vassal" of a certain product, and the composition of the brand is also out of the control of the original brand owner. It is more like a huge and constantly sliding sponge, which contains and contains some material fragments that are constantly "pouring in and out" such as content, image, instant stimulation and impression. It only exists in the minds of every consumer and the public who come into contact with it intentionally or unintentionally, and any factors related to it will affect its existing form. New trademarks, such as three-dimensional logo, have become important "material fragments" of brand composition because of their aesthetic feeling, uniqueness and strong impact on vision. In the era of pursuing beauty and individuality, design can be said to be the decisive factor for consumers to buy products. In the cosmetics market, fierce brand competition makes more and more kinds of products. How big is the functional difference between products? People may not be very clear, but smart businessmen know that packaging design can turn boring chemical products into panacea. In fact, what women buy is not cosmetics themselves, but confidence, heroism, youth, beauty and fashion feelings.

The rapidly established brand and exquisite packaging design can make the goods rich in youth, youth, health, elegance, fullness, neatness and strength, and you can make the goods come alive through packaging. Once consumers have experienced the satisfaction of shopping consumption based on the unique shape of goods, it will be easy to form a benign memory of consumer psychological experience with a sense of accomplishment, and the unique shape of goods will solidify into a node in the consumer's cognitive network, which will lead consumers to rely on the consumption of the goods. If enterprises can guide them according to the situation, they will form a virtuous circle of "consumption circle". Even if consumers are not clear about the exact source of the goods with the appearance, consumers can infer that the appearance of the goods indicates the same source. To sum up, in the context of consumer society, the way to identify the source of goods or services is not limited to traditional words or graphic signs. Consumers can also judge the source of products by their appearance and other characteristics, so as to recognize the brand for shopping.

Third, from abstract thinking to type thinking

Traditional legal thinking is an abstract thinking with the purpose of pursuing concepts. Looking at human history, "scientific research, especially theoretical research, is, in a sense, the process of putting forward, analyzing, demonstrating and accumulating concepts." Following the logic of abstract thinking, the concept must be the subject's grasp or reflection of the fundamental characteristics of the object and the thinking of its object, and it is an exhaustive description of the characteristics of things. With the help of definition, the concept can be determined to the following extent: the concept can be applied to a specific event or case only if all the elements of the definition are completely reproduced. Conceptual jurisprudence expects abstract operations, and the resulting concept is the cornerstone to construct a perfect legal system, and the constituent elements are formed by abstract concepts. As long as legal events have conceptual elements, they can be included under the constituent elements. For something, there is only a way to judge whether it is "yes" or "no", and there is no so-called intermediate state or transitional stage.

However, the reduction of life facts made by abstract thinking will inevitably lead to closure, rigidity and isolation between things. In real life, there are criss-crossing, changeable, overlapping and transitional social relations, and the boundaries between things are not "either-or", but constantly flowing and merging, which is far from being covered and competent by a closed logical category or abstract concept. When the concept is regarded as real and has completely ignored the consequences, it is developed to its logical limit, and the concept is no longer a servant but a tyrant. The provisions of the former trademark law of our country on the elements of trademark are not a kind of "arbitrary concept".

in the face of article 7, that is, "the words, figures or their combinations used in a trademark should have distinctive features and be easy to identify ...", we will inevitably have doubts and puzzles. Is it true that in real life, a trademark belongs to three forms: words, figures and their combinations? As long as we turn our eyes from abstract logical norms to the society in which we live, we will easily get the answer. Life is not as simple and uniform as stipulated in the Trademark Law. Besides words, graphics and their combinations, there are still a lot of symbol resources that actually play the role of trademarks. In the context of post-modernism visual culture and symbol consumption in consumer society, the three-dimensional symbols such as product shapes are no less discriminating and commending than plane trademarks such as words and graphics. No one can deny the distinctiveness of "Coca-Cola Glass Bottle", but the conceptual thinking makes the Trademark Law arbitrarily claim that only words, graphics and their combinations can be used as trademarks, and regard them as the inevitable form of trademarks, which obscures the extremely rich symbol resources behind abstraction, separates things with the same discernment, and distorts the experience of life. Other signs can't be absorbed under words and graphics, even if they are equally remarkable, they can't be taken care of by the Trademark Law, and form overrides substance.

The traditional abstract conceptual thinking "disintegrates and corrupts the integrity of life phenomena". It is inevitable to attract "type" thinking in order to uncover things that have been distorted by abstract concepts and reveal their rich connotations. Contrary to abstract concepts, the cognitive value of a type as a form of thinking lies in that it can clearly show-and maintain the rich individual characteristics contained in the type that are meaningfully combined with each other, and "thinking about the essence of things is a typological thinking". Type 17 only reflects the realistic degree of human understanding of the objective world, and refuses to make too many methodological assumptions about subject and object. This kind of realism position enables the type to capture the cognitive information of human beings to the objective world at any time by its open structure and update its internal characteristics with the times. 18 The description of the type is often more or less the same, and there is no clear boundary between the types, but this does not mean that a type does not have its own judgment. Things within the same type can be said to have "the same meaning" and some are indispensable.