Distinctiveness refers to the attribute of a trademark that indicates the source of a company’s goods or services and distinguishes them from those of other companies. As the "soul" of trademark protection and the "hub" for the normal operation of trademark law, trademark distinctiveness has always received special attention from both theoretical and practical circles.

1. Classification of distinctiveness

(1) The symbolic elements constituting a trademark are self-created words or phrases without meaning, or shapes represented by animal cartoons or special techniques , it is a strong trademark. The inherent distinctiveness of a trademark is not only reflected in the content of its symbolic elements, but also in the form of expression of its symbolic elements. Taking a word trademark as an example, its inherent distinctiveness is not only reflected in the combination of words, but also in its form of expression, that is, fonts or combinations that contain certain design elements, such as special fonts, handwriting (including signatures), etc. Generally speaking, the stronger the inherent distinctiveness of a trademark, the greater the possibility of obtaining special protection.

(2) If the symbolic elements constituting the trademark are ordinary words or phrases with meaning, or are common graphics on certain types of goods, or are common forms of animals in nature, it is a weak trademark.

(3) If a trademark consists of symbols that are not distinctive, it is not considered a trademark, but is just a symbol.

2. Inherent distinctiveness and acquired distinctiveness

Inherent distinctiveness and acquired distinctiveness are the most important concepts in traditional theory, but recently some scholars have clearly pointed out: "Inherent distinctiveness "This conclusion may be biased, but it is by no means groundless. I will briefly analyze it here, and leave a detailed discussion in another article."

According to the degree of eligibility for trademark protection, traditional theory divides various signs into five types:

(1) Common names, (2) Descriptive words, (3) suggestive words, (4) random words and (5) made-up words.

Among them, suggestive, random and fictitious words have inherent significance, while descriptive words and common names are due to their strong association with the marked goods. Not inherently distinctive. The so-called inherent distinctiveness means that the trademark mark cannot be reasonably understood as a description or decoration of the product to which it is attached. Consumers will automatically regard this mark as a representation of the product's origin, and therefore, it can be directly registered as a trademark; and Marks that directly describe the nature, origin, ingredients, etc. of the product or that can be reasonably regarded as product decoration are not distinctive and shall not be registered as trademarks. Among them, if a descriptive or decorative mark is recognized by consumers after long-term use and generates a second or secondary meaning indicating the origin of the product, it has acquired the distinctiveness required by the trademark law. The traditional theory is also called acquired distinctiveness. "The Fiction of Salience".

In fact, "from the perspective of modern linguistics, no meaning can be 'inherent' to a word, and the meaning of a word can only be the product of social interaction." Trademark as a Commodity language is no exception. There is no natural trademark. Even a sign with inherent distinctiveness cannot be immediately and automatically recognized as a trademark by consumers upon registration or use. The distinctiveness of a trademark can only be truly achieved through the marketing of goods on the market or through advertising and other means. In this sense, a trademark cannot be inherently distinctive, and distinctiveness can only be acquired.

At the same time, it must be noted that inherent distinctiveness only describes the relationship between a sign and its marked object from a negative or negative aspect. Logically speaking, the definition cannot be negative. In fact, the fact that there is no connection or a weak connection between a certain mark and specific goods or services is not a sufficient condition for the mark to play the role of marking and distinguishing, nor is it even a necessary condition, because it does not have inherent distinctive descriptive words. After obtaining the "second meaning", it can also play the role of marking and distinguishing. Therefore, the so-called inherent distinctiveness can at best be regarded as a favorable condition for a trademark to obtain distinctiveness. Obtained distinctiveness is the real distinctiveness, not a fabrication. It is the acquired distinctiveness that determines the strength of a trademark.

For the above point of view, there are many discussions in foreign legal literature. The Restatement of the U.S. Anti-Unfair Competition Law emphasized that: the inherent distinctiveness of a trademark "is not decisive for the strength of the trademark, because, The strength of a trademark ultimately depends on the extent to which potential consumers associate the mark with a specific source. "Some judicial opinions also show a similar tendency: "Although JBJ is technically a strong trademark, in business practice, it is not. It is just a weak trademark because consumers are actually almost unaware of the trademark."

"A ruling that a trademark is inherently distinctive does not guarantee that the trademark is a strong trademark. Because inherent distinctiveness does not guarantee that the trademark will have strong distinctiveness in the market. This means that inherent distinctiveness has minimal impact on the actual distinctiveness of the trademark.

3. Actual distinctiveness and potential distinctiveness

In the practice of trademark protection, distinctiveness cannot be quantified as strictly as arithmetic. “It is impossible to make a general description of when a certain mark has strong distinctiveness. For example, by setting a percentage, when the number of consumers who regard a certain mark as a trademark reaches this percentage, the mark will have distinctiveness. "Obviously, if all consumers in the market realize that a trademark marks the manufacturer of related products or the provider of services, the trademark is a strong trademark. On the contrary, if no one thinks that the trademark has The above functions are not significant at all.

However, in reality, there is no cut-off point that can be quantified into a specific percentage, below which a trademark that is originally distinctive will no longer be distinctive. For those goods or services that people rarely buy and have a long service life, the average consumer only visits this type of market occasionally. Before there is such a need, people will not pay attention to such goods or services at all. The goods or services of other brands have a great impact on the entire society, and even those who have no purchase demand at all pay full attention to them. Therefore, even if a quantitative cut-off point is to be determined, the specific percentage of the cut-off point should vary depending on the type of goods or services, which makes such quantification unrealistically operable.

Therefore, trying to quantify distinctiveness confuses two concepts: first, the public's actual recognition of a trademark; second, a trademark indicates the source of products or services in the relevant market. ability. The actual recognition of a trademark can often be quantified through market research, but the ability of a trademark to indicate the source of goods or services is difficult to quantify because it includes both actual and potential indicating capabilities. Actual recognition is therefore not a measure of a mark's ability to differentiate between products.

It can be seen that significance can be divided into actual significance and potential significance. Chinese scholars have also discussed this: "The distinctiveness or identification of trademarks is the characteristics that can play a distinguishing role. This distinguishing role should only be understood as a possibility and does not necessarily need to be actually possessed in real life." In fact, A trademark with very low distinctiveness may have high potential distinctiveness. The actual distinctiveness often represents the actual market recognition of the trademark, while the potential distinctiveness is just the possibility of being recognized. In this way, potential distinctiveness seems to be equivalent to inherent distinctiveness, and actual distinctiveness seems to correspond to acquired distinctiveness. In fact, this is not necessarily the case. Trademarks with low inherent distinctiveness, such as CocaCola and Microsoft, which are originally descriptive marks, can also become strong trademarks, and therefore have high potential distinctiveness. In fact, they also have high actual distinctiveness. . Whether potential distinctiveness can be fully realized mainly depends on the marketing ability and intensity of the trademark owner, and has little to do with the attributes of the trademark mark itself. It seems that the initial choice and design of a company's trademark is not as important as people think. Of course, actual significance and acquired significance can indeed be equated.