"The significance of a trademark is generally relative to the designated goods and services, and this principle is self-evident." Judging whether a sign is significant cannot be done abstractly, but should consider the goods or services it intends to attach. The concept or meaning of a sign cannot be directly related to the marked object, that is, goods or services, or has only a small or indirect connection. At the same time, the main body to judge whether a mark is significant is not the examiner or judge of the Trademark Office, but the ordinary consumers in the relevant market. When ordinary consumers identify a logo as a trademark in their daily shopping, it is significant. Ordinary consumers usually treat the logo as a whole without looking at the details of the logo. He or she has reasonable relevant knowledge and a reasonable degree of caution, and the degree of attention will vary with the types of goods or services. As a product of the development of commodity economy, the trademark system completely depends on the specific market, and the background of trademark use determines everything.

There is a degree of distinctiveness. Any mark that meets the minimum requirements of distinctiveness, that is, has inherent distinctiveness, can be registered as a trademark. In fact, the degree of trademark salience often far exceeds this standard. Therefore, in general, as long as there is no obvious defect in a certain sign, the significance can be inferred. In practice, "the judgment of trademark distinctiveness generally adopts the reduction to absurdity, that is, it excludes some signs that cannot be used as trademarks or registered as trademarks." From the legislative point of view, most of the provisions on distinctiveness in trademark laws of various countries belong to prohibitive clauses, that is, those unqualified marks are directly excluded from trademark protection. As far as academic research is concerned, "it is not easy to clearly define the composition of a distinctive trademark from the front, but to analyze it from the back, which will be more helpful to determine whether a trademark has distinctive elements." Significantness is dynamic and changeable. A mark that is not significant may be significant because of long-term use. On the contrary, a mark that is significant will lose its significance because of improper use. This involves the issue of obtaining salience.

in practice, such misunderstandings often occur. Words that competitors don't use are often significant, while words frequently used by competitive enterprises can't be significant. But this is not the case. First of all, the fact that competitors don't use a certain word doesn't affect its description or distinctive attributes. For example, there is a sphygmomanometer that can be worn on your wrist like a watch. When applying for the registration of "BLOOD PRESSURE WATCH" as the trademark of sphygmomanometer, Matsushita Company of Europe pointed out that no competitive enterprise used the trademark of "blood pressure watch", so the word was significant. However, the examiner of the Coordination Bureau and the Appeal Committee finally rejected the application. The fact that competitive enterprises do not use a certain word is only related to judging whether the word belongs to a common name. But it has no influence on the judgment of inherent significance. Secondly, the fact that competing companies are also using a word is not enough to overturn its significance. It has been pointed out that "mail" is common in the names of many newspapers, and the word is not unique to the trademark owner, so the trademark "THE MAIL" is not enough to distinguish its owner's newspaper from other newspapers. But this argument was eventually rejected on the grounds that uniqueness itself is not a prerequisite for salience.

in a word, whether a trademark is distinctive should be judged according to the specific circumstances of each case, and there is no one-size-fits-all rule.

the strength of trademark distinctiveness and its distinguishing significance

The distinguishing theory of trademark distinctiveness comes from the United States. According to the difference of inherent distinctiveness (identifiability) of trademarks, this theory distinguishes a strong trademark from a weak trademark, and only a strong trademark can obtain federal registration, that is, only the trademark itself has distinctiveness or the trademark owner proves that its trademark has acquired a secondary meaning can the trademark be registered in the Principal Register. Strong trademarks include three kinds of imaginary marks, arbitrary marks and suggestive marks. Taking word mark as an example, the so-called fictitious trademark means that the words or letter combinations that constitute a trademark have no meaning in the dictionary. For example, "Exxon" (the trademark of Standard Oil Company) itself does not describe anything and has no meaning. However, not all trademarks composed of self-created words belong to fictitious trademarks, and some words make consumers realize a certain meaning in their composition and pronunciation. For example, the trademark "Breadspred[sic]]" used on "jam and jelly" will make consumers think that it constitutes a description of the quality characteristics of the goods they use, that is, jam can be spread on bread, so the trademark is not a fictitious trademark. The so-called arbitrary trademark refers to the word or word combination that constitutes a trademark has a fixed meaning in the dictionary, but it has nothing to do with its designated goods or services. For example, "Yahoo!" used on "Internet search engine" Trademark [Author's Note: Yahoo is one of the famous websites familiar to Chinese consumers, and the word means humanoid beast; Yahoo, after that, refers to an abominable person who has the habit of being a beast, and a person with a human face and a beast heart. Black &; used on "Scottish alcoholic drinks" White "(black and white) trademark. The so-called suggestive trademark refers to a trademark that has an innuendo or suggestive effect on the nature or quality of the goods it uses. For example, the trademark Roach Motel implies but does not directly describe the function of using the commodity "insect trap": the trademark "Rain Dance" does not directly describe the function of using the commodity "car wax", but it implies the function that "wax will keep rain away from cars". The common forms of weak trademarks are descriptive mark, geographic mark and family names. The so-called descriptive trademark refers to a trademark that only describes the function, quality, composition and other characteristics of the goods it uses. For example, the "Vision Center" only describes the places where you can buy glasses. The so-called place name trademark refers to a trademark that describes the place of origin of goods or service provision. For example, "San Francisco Bay Club" describes that the health club is located near San Francisco Bay. In order to obtain federal registration and prohibit others from using it, the owner of the trademark must prove that consumers can distinguish the club from other clubs located near San Francisco Bay through the trademark. A surname trademark is a trademark with a common surname, such as the "Newman's Own" trademark used in salad dressing. For such trademarks, the United States Patent Office will not approve the registration unless the applicant can prove that the trademark has acquired a second meaning through use. The reason is that there may be many people using the same surname at the same time, and allowing one person to enjoy the trademark right to the surname will bring unfair consequences to others. Strong trademark and weak trademark are the division of theoretical circles. Examiners of the United States Patent Office (PTO) do not use this term in trademark examination, but use terms such as "inherently distinctive" and "merely descriptive" stipulated in American trademark law. This classification is based on the relationship between a trademark and the goods or services it uses. It holds that all trademarks that are recognizable by themselves belong to strong trademarks, while those that are not recognizable by themselves and can only be registered after obtaining the second meaning through use belong to weak trademarks, which better solves the problem of trademark registrability and is worth learning.

China's Trademark Law does not distinguish the strength of trademark distinctiveness, but the expression of "originality of trademark" appears in administrative regulations [see Article 11 of the repealed Interim Provisions on the Recognition and Administration of Well-known Trademarks]. As a legal vocabulary, "originality" is the requirement of copyright law for works, that is, works protected by copyright law must be original. "Significantness" is the requirement of trademark law that a mark can be used for trademark registration, that is, the trademark applied for registration should have distinctive features and be easy to identify. Therefore, it is more appropriate to use the expression of "trademark distinctiveness" in trademark legislation. Article 11 of the current Provisions on the Recognition and Protection of Well-known Trademarks has been revised to "distinctiveness". The distinctiveness of a trademark can be further divided into two levels. One is the inherent distinctiveness of the trademark mark itself, that is, the distinctiveness of trademark words, graphics, combinations or expressions of graphics and texts, and the distinctiveness of three-dimensional trademark structure. The second is the distinctiveness obtained through the use, that is, the distinctiveness of the trademark is improved due to the improvement of the brand awareness. "The originality of a trademark" refers to the distinctiveness of a trademark in the first meaning, and a trademark with distinctiveness may not be original. For example, the "Great Wall" trademark used in "wine" is remarkable but not original, while the "Haier" trademark used in "refrigerator" is both remarkable and original.

comparison of trademark distinctiveness with creativity and originality

American scholars once pointed out that "distinctiveness is to trademarks what novelty is to patents and originality is to works." This statement is very accurate only in terms of emphasizing the significance of significance. Nevertheless, in the conditions of patent authorization, it is not novelty but creativity that really qualifies to be compared with trademark distinctiveness. Novelty only requires that the patented technology is not available in the existing technology, and creativity goes further, requiring that it is not obvious. For example, the European Patent Convention stipulates: "If the existing technology is taken into account, an invention is not obvious to the professional technicians and should be considered as a creative invention." The "originality" in copyright law means that the work is independently completed by the author rather than copied from any other work. According to the interpretation of the American court, independent completion means that "the work contains something unique, even in handwriting, it can show its uniqueness." And there is something irreducible in a very low-level work of art, which is done independently. " In other words, the work must have a minimum of creativity. Although there are great or small differences in the specific requirements of creativity or originality in different countries' laws due to the differences in historical culture or technological development level, as far as creativity or originality is concerned as a prerequisite for patent authorization or copyright protection, countries all over the world are basically consistent.

Creativity or originality is a requirement for the patented technology or the work itself, but as mentioned above, distinctiveness has no substantive requirement for the trademark mark. The "administrative court" in Taiwan Province has repeatedly explained "particularly remarkable" that is, distinctiveness, which may be useful for us to understand distinctiveness correctly: "The so-called particularly remarkable means that the trademark itself is special and can be different from the trademarks of other people's goods." "Special cloud, refers to the trademark itself is special; Remarkable cloud refers to those who can distinguish from other people's goods. " "The so-called' special' means that the trademark itself is unique and can attract the attention of ordinary consumers; The so-called' remarkable' refers to the relationship between its appearance, title and concept and its designated use of goods, which is sufficient to distinguish it from other people's goods, that is, those who have the adaptability of commodity trademark recognition. " The above explanations only require the trademark to be "special", "different from others' trademarks" and "able to attract consumers' attention", but in fact there is no threshold. Of course, in practice, simplicity, eye-catching and easy to remember are conducive to improving the distinctiveness of trademarks, and these characteristics are helpful for customers who are satisfied with the brand to buy again. Nevertheless, blandness, lack of originality or imagination do not constitute evidence that a trademark lacks distinctiveness.

However, in practice, trademark authorities in various countries will sometimes deviate from the correct standard of distinctiveness and reject the application for trademark registration of enterprises on the grounds of lack of originality or creativity. For example, the Appeal Board of the Internal Market Coordination Bureau of the European Union once rejected the application to register the "MULTI 2'NI" logo as a trademark of various tools and accessories, on the grounds that the applicant did not show any imagination in the combination of these common words, so it seemed unremarkable. Similarly, even after admitting that the trademark does not need to be original or reflect the designer's imagination, the European Court of First Instance ruled that the symbol "CINE ACTION" is not significant for a series of services, including film screening and rental business. In another case, the EU Internal Market Coordination Bureau rejected the application for registering the business slogan "Beauty is not young but decent" as a trademark, and the Appeal Board sent it back for retrial, pointing out: "The slogan is not bland, but a statement that conforms to the' beauty philosophy'." It is not difficult to see that the Coordination Bureau's understanding of trademark distinctiveness is biased, and the reasons given by the Appeal Board for remanding the case are not appropriate, because blandness is not a fatal defect for trademark registration. However, a French court has a deeper understanding of distinctiveness, which clearly points out that trademark rights are not based on creation. In fact, the lack of originality or creativity is not a defect for trademarks at all.