1. About inherent distinctiveness The distinctiveness of a mark refers to the uniqueness of a mark that is distinguished from other marks when it is designated for use on specific goods or services. Therefore, distinctiveness inherently contains meanings such as “unique”, “special”, “different” and “obviously different”. The more unique and “standing out from the crowd” a mark is, the more likely it is to be inherently distinctive. To judge the "uniqueness" of a three-dimensional mark, it is not only necessary to examine the distinctiveness of the shape of the mark itself or the combination of the shape and other elements such as words, graphics, letters, numbers, colors, etc., but also need to specifically consider the impact on the goods for the relevant public. Or during the process of identifying the source of the service, will one realize that the mark is a trademark used by the provider of goods or services to distinguish the source of the goods or services. In reality, it is often difficult for the relevant public to associate the shape of the product itself with the trademark, and instead identify it more as the appearance, packaging, and decoration of the product. Therefore, for those three-dimensional signs that also serve as product shape or packaging functions, even if their design is ingenious and unique, they generally do not have inherent distinctiveness. In this case, the applied trademark is a part of the appearance of a guitar and is designated for use on "electric guitar" products. Even if the mark reflects a certain degree of design innovation, it is still difficult to meet the inherent distinctiveness requirements. 2. Regarding Obtaining Distinctiveness through Use Paragraph 2 of Article 11 of my country’s Trademark Law allows an applied trademark to acquire distinctiveness through use even if it does not have inherent distinctiveness. This distinctiveness is called “acquired distinctiveness”. For three-dimensional marks, especially those product shapes or outer packaging three-dimensional marks that are difficult for the relevant public to recognize as trademarks, they can obtain distinctiveness through use, thus meeting the requirements for distinctiveness of registered trademarks. The reason why distinctiveness can be obtained through use is that in the process of market use, the relevant three-dimensional signs always appear together with specific goods or services. Over time, when the signs gain a certain popularity, the relevant public will A fixed connection is established between the three-dimensional logo and the origin. Once the connection can meet the requirements of stability, uniqueness and directivity, then the three-dimensional mark will have the distinctiveness of a registered trademark, and the relevant public will not only be able to recognize it as a trademark, but also be able to associate it with a specific source of production. be connected so as to play the identification role that a trademark should have. On the contrary, if the relevant three-dimensional mark has not established the above-mentioned connection with a specific source of production through extensive use, then the three-dimensional mark does not yet meet the conditions for registration. As for the certification standards and conditions for obtaining distinctiveness, they should be comprehensively considered in conjunction with the inherent characteristics of the marking mark itself, the length and scale of use, the situation of competing products, the nature of the designated goods, and other factors. In this case, the applicant for trademark registration failed to submit proof of its use in mainland China, so the existing evidence is not enough to prove that the applied trademark has acquired the distinctive features that should be registered through use. 3. Public policy regarding the registration of three-dimensional marks. The author believes that for trademark registration applications for three-dimensional marks, especially those used as three-dimensional marks for the goods themselves or outer packaging, attention should be paid to coordination with other intellectual property legal systems and strict policies. Grasp and avoid private monopoly of public resources. Three-dimensional signs are different from flat signs. They often have certain functionality. This functionality may be beneficial to the development and progress of human society. They should follow the basic principles of intellectual property rights, that is, between private monopoly and public resources** *Achieve balance in terms of enjoyment. There are many dimensions to protecting the appearance and outer packaging of goods, and sometimes they can be protected through copyright, design patent rights, etc. In order to balance the interests of the rights holders and the public and promote the development and dissemination of technology, literature and art, relevant laws set a certain time limit for copyrights and patent rights to ensure that relevant intellectual achievements enter the public domain after expiration. If the objects protected by copyright and patent rights are protected by trademark rights, due to the sustainability of trademarks, the functions and beneficial effects represented by the three-dimensional shape may be permanently monopolized by private entities, ultimately hindering humankind. social development and progress. Therefore, on the one hand, the law sets up a "fair use" system and provides infringement exemption rules for other competitors in the market; on the other hand, the distinctiveness standard of three-dimensional signs should also be strictly controlled. When there is a risk of monopoly on intellectual achievements, interest imbalance should be avoided.

Even if the relevant three-dimensional signs can establish a unique corresponding relationship with specific goods or services, they should be registered or used to avoid having a negative impact on the public's right to legitimate use of public resources. 4. Legal application regarding the distinctiveness of three-dimensional marks. Neither the current Trademark Law nor the new Trademark Law provides direct provisions on the distinctiveness of three-dimensional marks. According to Article 11, Paragraph 1 (1) of my country’s Trademark Law, ), the wording of the law only includes "common names, graphics, and models." Generally speaking, "figure" only refers to two-dimensional figures and does not include three-dimensional "shapes". This cannot but be said to be a shortcoming in the legislation. However, according to the interpretation rules of the law, regarding the distinctiveness of three-dimensional marks, the provisions on "graphics" can also be applied by analogy, interpreting that a mark with only the "general shape" of the product shall not be registered as a trademark. Only in this way Only in this way can it comply with the original intention of the legislation and provide a legal basis for the judgment of the distinctiveness of three-dimensional signs.