Corporate brand naming plays an extremely important role in the development of the enterprise. Every enterprise hopes that its brand can be easily remembered and spread, reflect the connotation of corporate culture, develop sustainably, and at the same time obtain maximum legal protection. Putting aside the brand management system, we return to the legal symbol of trademark. Commercial value and the scope of legal protection are often at odds with each other. You cannot have both. How should you choose?

1. Legal provisions: If a trademark lacks the distinctive features it should have, it shall not be used as a trademark. Registration situation

A trademark is an identifier that distinguishes the source of goods or services, and should have a one-to-one correspondence on designated goods. For example: Wuliangye Liquor, we are thinking of Wuliangye Group. If we are also thinking of the second, third, and fourth other companies that are not related to Sichuan Yibin Wuliangye Group Co., Ltd., we will distinguish goods or products without trademarks. The nature of the service source. Distinctiveness is the basic attribute of a commercial mark that can be registered as a trademark, and is the basis for obtaining legal protection. my country's Trademark Law stipulates the following circumstances involving the lack of distinctive features and shall not be registered as a trademark:

"Trademark Law" As stipulated in Article 11, Paragraph 1, Item (1) of the Law, only the common name, graphics, and model of the product shall not be registered as a trademark. The above provisions shall not be regarded as a direct description of sensory recognition in the case of trademark registration. The effect of cognitive recognition can be achieved through reading and calling. Such as "Red Wine" brand red wine, "No. 7" brand batteries. The above commercial logos are inevitably and directly related to the products.

As stipulated in Article 11, Paragraph 1, Item (2) of the "Trademark Law", situations that only directly express the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the goods shall not be used. Registered as a trademark. The above provisions are a direct description of thinking and cognition, that is, through our thinking, we can create a specific association between commercial logos and designated goods. Such as "Wood Pulp Cotton" brand toilet paper, "Chip Shengwei" brand pencil sharpener, and "Chongzhongda" brand scale. Business logos and products have specific connections through thinking.

Other circumstances that lack distinctive features as stipulated in Article 11, Paragraph 1, Item (3) of the Trademark Law shall not be registered as trademarks. This treaty is a blanket clause, which refers to signs that, except for items (1) and (2) of Article 11, Paragraph 1, of my country’s current Trademark Law, cannot recognize the distinctive features of a trademark logo based on the general knowledge of the relevant public, such as Unoriginal advertising terms, overly simple lines and geometric figures, overly complex combinations of text, graphics, numbers, and letter elements, etc. Regardless of its specific form, its essence still plays a role in distinguishing the source of goods or services. For example: "Eat, eat and drink" is used in restaurant service; "Diamonds are forever, one will last forever" is used in jewelry; non-designed single two-letter logo forms: such as "AB", used for complex text or letter combinations such as :?ABCDEFGHIJKLMNOPQ?. In "Love Apartment", Zhang Wei gave Hu Yifei "Red Wine" brand red wine.

2. The product of contradiction: descriptiveness and distinctiveness

From a practical point of view, the issue of trademark distinctiveness is easier to avoid, but why do many companies persist in using descriptive marks? The reason is that every company hopes that its trademark logo will be easy to read and remember, have efficient identification and communication functions, adapt to the cultural values ??of consumers, and adapt to the cultural concepts of potential markets. But on the contrary, the highest level of distinctive features lies in originality, which is a description that is separated from the inherent vocabulary and words.

In real life, names such as "Yang Ming", "Wang Gang", and "Li Na" are popular among the public. There are six people in a school with the same name as "Li Na", and it is not uncommon for the plaintiff and defendant in a lawsuit to both be "Yang Ming". Similarly, in the field of trademarks, "Yangtze River", "Yellow River", and "Great Wall" are all inherent literal expressions, inheriting a strong history and culture. In terms of brand naming, they are also everywhere, corresponding to different subjects on different products. Such as: "Yangtze River" fertilizer, "Yangtze River" adhesive, "Yangtze River" automobile, "Yangtze River" crane, "Yangtze River" beer; "Yellow River" laundry soap, "Yellow River" fashion city, "Yellow River" motorcycle, "Yellow River" Watches and more. While the above-mentioned logo is catchy and easy to spread, it is difficult to ensure the uniqueness of the brand. On the contrary, words such as "Sony", "Haier", and "Aucma" are made-up words. They give up the characteristics of easy to spread and remember in the brand naming stage, and huge publicity and marketing costs will be paid in the communication stage.

However, the level of legal protection is maximized, because similar trademarks are non-accidental and may form category-wide exclusive protection, and the cost of later rights protection will be greatly reduced.

Commercial value and distinctive features often have a trade-off relationship, and it is difficult to have both.

3. The Art of Naming: Suggestive Marks

Suggestive trademarks are composed of commonly used words, which use metaphors and hints to indicate the attributes or certain characteristics of the product. Different from directly describing the content and characteristics of goods or services, it only uses a designated thinking structure that can be related to the goods or services, uses implicit or metaphorical techniques, and chooses to imply the performance or characteristics of the goods or services, and has A certain specific trademark name should be used to imply the characteristics and properties of the product, thereby making it easier for consumers to understand and remember. This is a recognized situation that can be registered as a trademark.

Through the picture below we can see the gradual process from common vocabulary to original vocabulary. "Air purifier" is a common name for the product in "purification equipment" and does not have the distinctiveness that a trademark should have. If you register it as a trademark, you can theoretically restrict others from using it, which will create a monopoly of public resources. The expression "air purifier" shifts from referring to things to the name of a person. It is not an inherent product name, but it is still highly descriptive of the specified product, and is suspected of lacking the distinctive features that a trademark should have. "Life Colorist" is a further expansion of the concept of the above logo. It is an indirect description on "Purification Equipment" and should comply with the category of suggestive trademarks to achieve a balance between commercial value and distinctive features. From "生彩师" to "生彩师", and then to "Shengcai Shi", the distinctive features are gradually strengthened, and the feasibility of successful registration is gradually improved. However, the correlation between the commercial logo and the product is gradually weakened, and the commercial value is gradually reduced. weaken.

4. Obtain distinctive features through use

Article 11, Paragraph 2 of the Trademark Law stipulates: If a trademark obtains distinctive features through use and is easy to identify, it may be registered as a trademark. This provision is an exception provided by law. The United States, the United Kingdom, Japan, Germany, South Korea and many other countries have determined that signs that have strong descriptive characteristics and have acquired distinctive features through use have developed a new meaning other than their original meaning (i.e., "secondary meaning"). my country's Trademark Law does not explicitly provide for the protection of "secondary meaning" trademarks, but Article 11, paragraph 2, stipulates: If it has acquired distinctive features through use and is easy to identify, it can be registered as a trademark, which is the same as the international "secondary meaning" trademark. Meaning? Convergence.

Looking at the cases, among the walnut milk drinks, we know that Yangyuan Six Walnuts is the best. ?Six walnuts? is catchy and easy to spread, triggering consumers' intuitive associations. Without the pull of many advertisements, it can form a strong impact and spread speed, and contains huge brand commercial value. However, from the literal analysis of the trademark, "Six Walnuts", as the trademark of Walnut Dew, directly reflects the main raw materials and constituent quantities of the product, which is a situation that cannot be registered as stipulated in Article 11 of the Trademark Law. Looking at the road to confirming his power, it is also extremely difficult. ?Six Walnuts? filed a registration application with the Trademark Office in January 2006. It was reviewed and rejected by the Trademark Office in July 2008. In the same month, it submitted a rejection review application to the Trademark Review and Adjudication Board, which was reviewed and initially approved by the Trademark Review and Adjudication Board in February 2009. , during the preliminary review period, an objection application was filed by others. In April 2010, the Trademark Office reviewed the objection and approved the registration. In the same month, the original opponent filed an objection review application with the Trademark Review and Adjudication Board, and it was not until April 2012 that the registration was obtained. Trademark exclusive rights.

On the road to confirming the rights, "Six Walnuts" was finally recognized as a trademark that could be registered because it had been widely publicized and used to the extent that it could distinguish the products produced by different producers or operators. The effect of the product has changed consumers' perception of the "Six Walnuts" trademark, has an identifiable "secondary meaning", and can be protected by law. Although the commercial value of the six walnut brands is high, the cost of publicity is too high, making it difficult for ordinary enterprises to copy. And in specific market behaviors, because of the inherent descriptive nature of logos, the cost of rights protection is high. For example, if others use "Seven Apples" and "Eight Cherries" as trade names, how can they get maximum legal protection? From this It can be seen that if the distinctive features of a trademark are not strong, it often cannot be protected by a wider legal scope. The commercial value and the distinctive features of a trademark are a "have-not". You cannot have both. Only by maximizing one of the attributes can the trademark be protected. It's the kingly way.