“The distinctiveness of a trademark is generally relative to the designated goods and services. This principle is self-evident.” Judging whether a certain mark is distinctive cannot be done abstractly, but should consider its The goods or services intended to be attached. The concept or meaning of the mark cannot be directly related to the marked object, that is, the goods or services, or has only a small or indirect correlation. At the same time, the subjects who judge whether a certain mark is distinctive are not the examiners or judges of the Trademark Office, but ordinary consumers in the relevant market. When ordinary consumers identify a certain mark as a trademark during daily shopping, the mark is distinctive. An ordinary consumer usually looks at the trademark mark as a whole and does not examine the details of the mark. He or she has reasonable relevant knowledge and A reasonable degree of care is required, and the degree of care will vary with the type 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 issue. Any mark that meets the minimum distinctiveness requirements, that is, has inherent distinctiveness, can be registered as a trademark. In fact, the degree of trademark distinctiveness often far exceeds this standard. Therefore, under normal circumstances, as long as there are no obvious defects in a mark, distinctiveness can be presumed. In practice, "the judgment of trademark distinctiveness generally adopts the method of proof by reductio, that is, excluding certain signs that cannot be used as trademarks or registered as trademarks." From a legislative perspective, most of the distinctiveness provisions of various countries' trademark laws are prohibited Sexual clause, that is, directly exclude those unqualified marks from trademark protection. As far as academic research is concerned, "the composition of a distinctive trademark cannot be clearly defined from the front, so analyzing it from the reverse will be more helpful in determining whether a trademark meets the requirements for distinctiveness." Distinctiveness is dynamic and variable. Yes, a mark that is not originally distinctive may become distinctive due to long-term use. On the contrary, a mark that is originally distinctive may also lose its distinctiveness due to improper use. This involves the issue of obtaining distinctiveness.
In practice, such misunderstandings often occur. It is believed that words not used by competitors are often significant. Words frequently used by competing companies are unlikely to be significant. But this is not the case. First, the fact that a term is not used by competitors does not affect the descriptive or salient attributes of that term. For example, there is a blood pressure monitor that can be worn on the wrist like a watch. When the European Matsushita Company applied to register "BLOOD PRESSURE WATCH" as a blood pressure monitor trademark, it pointed out that no competing company used the "blood pressure watch" trademark, so the word was distinctive. But Bureau examiners and appeals committees ultimately rejected the application. The fact that a term is not used by a competing business is relevant only in determining whether the term is a common name. However, it will not have any impact on the judgment of inherent significance. Second, the fact that a term is also used by competing businesses is not sufficient to overturn its distinctiveness. Someone once pointed out that "mail" is common in the names of many newspapers. For the trademark owner, the word is not distinctive, so the "THE MAIL" trademark is not enough to distinguish its owner's newspaper from other newspapers. But this argument was ultimately rejected on the grounds that uniqueness itself is not a prerequisite for distinctiveness.
In short, whether a certain trademark is distinctive should be judged based on the specific circumstances of each case. There is no iron-clad rule that is universally applicable.
The strength of trademark distinctiveness and its distinguishing significance
The theory of distinguishing the strength of trademark distinctiveness originated from the United States. This theory distinguishes strong marks and weak marks based on the inherent distinctiveness (identity) of trademarks. Only strong marks can obtain federal registration, that is, only the trademark itself is distinctive or the trademark Only when the owner proves that his trademark has acquired a secondary meaning can the trademark be registered in the Principal Register.
Strong trademarks include three types: fanciful marks, arbitrary marks and suggestive marks. Taking word trademarks as an example, the so-called fictional trademark means that the words or letter combinations that constitute the trademark have no meaning in the dictionary. For example, "Exxon" (a trademark of the Standard Oil Company) itself describes nothing and has no meaning. However, not all trademarks composed of self-created words are fictitious trademarks. The formation and pronunciation of some words allow consumers to recognize a certain meaning. For example, if the "Breadspred [sic]" trademark is used on goods such as "jam and jelly", it will make consumers think that it constitutes a description of the quality characteristics of the goods they use, that is, the jam can be spread on bread. Therefore, the trademark is not a fictitious trademark. The so-called arbitrary trademark means that the words or word combinations that constitute the trademark have a fixed meaning in the dictionary, but have nothing to do with the goods or services they specify. For example, the "Yahoo!" trademark used on the "Internet search engine" [Author's note: Yahoo (Yahoo) is one of the famous websites familiar to Chinese consumers. The word means humanoid beast; Yahoo, after referring to the habits of beasts Abominable people, people with human faces and animal hearts. The "Black & White" trademark used on "Scottish Alcoholic Beverages". The so-called suggestive trademark refers to a trademark that alludes or implies the nature or quality of the goods used. For example, the trademark "Roach Motel" implies but does not directly describe its function of using the product "insect trap": although the trademark "Rain Dance" does not directly describe its use of the product "car wax", But it hints at the function of "the wax will keep rain water away from the car." Common forms of weak trademarks include descriptive marks, geographical marks and family names (surname). The so-called descriptive trademark refers to a trademark that only describes the functions, quality, ingredients and other characteristics of the goods it is used for. For example, "Vision Center" simply describes a place where you can buy eyeglasses. The so-called place name trademark refers to a trademark that describes the place of origin of goods or the place where services are provided. For example, "San Francisco Bay Club" describes a health club located near the San Francisco Bay. In order to obtain federal registration and prohibit use by others, the owner of the trademark must prove that consumers can distinguish the club from other clubs located near the San Francisco Bay by the mark. A surname trademark is a common surname used as a trademark, such as the “Newman’s Own” trademark used for “salad-flavored dressing”. For such trademarks, the U.S. Patent Office will not approve registration unless the applicant can prove that the trademark has acquired a secondary meaning through use. The reason is that many people may use the same surname at the same time, allowing one person to enjoy trademark rights over the surname. There will be unfair consequences for others. Strong trademarks and weak trademarks are theoretically divided. Examiners at the U.S. Patent Office (PTO) do not use this terminology during trademark examination. Instead, they use the terms "inherently distinctive" and "inherently distinctive" stipulated in the U.S. Trademark Law. Terms such as "merely descriptive". This classification is based on the relationship between the trademark and the goods or services used as the standard. It is considered that all trademarks that are identifiable in themselves are strong trademarks, while trademarks that are not identifiable in themselves and can only obtain secondary meaning through use can be registered. It is a weak trademark, which has solved the problem of trademark registrability and is worth learning from.
For example, the Appeal Committee of the European Union's Office for Harmonization in the Internal Market rejected an application to register the "MULTI 2'NI" ??mark as a trademark for various tools and accessories on the grounds that the applicant did not show any imagination for the combination of these commonly used words, and therefore Seems bland. Similarly, even after admitting that a trademark does not need to be original or reflect the designer's imagination, the EU Court of First Instance still ruled that the mark "CINE ACTION" was not suitable for businesses including movie screenings and rentals on the grounds of "lack of minimum imagination". In another case, the European Union's Office for Harmonization in the Internal Market rejected an application to register the business slogan "Beauty lies not in youth but in decency" as a trademark on the grounds of blandness and lack of originality. The appeals board remanded it for reconsideration, noting: "The slogan is not bland, but is a statement consistent with a 'beauty philosophy'. "It is not difficult to see that although there are deviations in the Coordination Bureau's understanding of trademark distinctiveness, the reasons proposed by the Appeals Committee for remanding for reexamination are also inappropriate, because blandness is not a fatal flaw in trademark registration. On the contrary, a French court The understanding of distinctiveness is more profound, and it clearly points out that trademark rights are not based on creation. In fact, lack of originality or creativity is not a defect at all.