A Comparative Study Of Generic Names And Trademarks

If we compare the provisions of the French Code of intellectual property rights, we can easily find that the provisions of the general name of the existing trademark law in China directly refer to the provisions of France. The French Code of intellectual property stipulates the lack of significant marks in 711 to 2: a) in general or professional terms, it is simply a mark or text of the essential, common or common name of a commodity or service; b) used to denote the characteristics of goods or services, especially the marks or characters of the age, type, quality, quantity, purpose, value, source of production, production or service provision; c) the shape determined solely by the nature or function of the commodity, or the mark that gives the commodity the appearance of the basic value. At the same time, it is stipulated that except for the conditions specified in C, the significance can be obtained through use. Analyzing the provisions of this article, we believe that the French law also uses the inherent saliency and the distinctiveness classification obtained through the use of which the general name of the product can be obtained through its use. However, Germany, which is the same as the continental law system, is another way of regulation. The fourth article of the German trademark law provides for the prohibition of the use of marks: (1) ordinary names can not be registered as trademarks. (two) the following kinds of markings can not be registered: (1) marks that lack identification, or are made up of words consisting entirely of numbers, letters, or words that are only composed of words concerning the type, date of birth, origin, nature, purpose, price, quantity or weight of the goods; (2) contain any country's emblem, national flag and other symbols, or regional emblem, the emblem of the joint organization of the local self governing bodies in the country, or the emblem mark of the joint organization of other autonomous entities; (three) the trademark listed in paragraph (two) of paragraph (two) above may be registered if it has become a mark of the applicant's product in trade. By analyzing the provisions of the article, we have come to the conclusion that the German trademark law also stipulates that trademarks with no inherent distinctiveness can be obtained through the use of distinctiveness, but the generic names are excluded.

The simple comparison of the articles seems to give us such a message: whether the generic name can be protected by trademark, China and France hold a positive attitude, while Germany takes the opposite attitude. However, at this time, we neglected another link. The way of obtaining trademark rights is not single. Registration is not the only way to acquire trademark rights. Besides, there is a way to acquire trademark rights. (2) at present, there are three main modes for the acquisition of trademark right in the world: single registration system, such as China and France; third, the adoption of a single acquisition mode, such as the United States; 4. At first, Germany only adopted the principle of registration. Later, the court admitted that it could bring the reputation of the market to the trademark, and it also had the effect of producing the trademark right. The legislature affirmed the principle of use in 1934. The existing trademark law of Germany, which came into force in January 1995, expanded the way of trademark protection. The law clearly stipulates that trademark protection should be equally registered or used in real estate. In Germany, the registered trademark is called "formal trademark right", which is also protected under certain conditions for unregistered but already used logo. Substantive trademark right "Ausstattung" is protected by the trademark law if it is regarded as a mark of a commodity or service within a specific transaction scope and can be differentiated from the goods or services provided by others, that is, such right is protected by the use of the token and its value and function in exchange (Verkehrsgeltung). In this way, although the generic name can not be protected by registration in Germany, it does not exclude that it obtains certain value through its use, and is regarded as a representation of a commodity or service within a specific transaction scope, and thus obtains the protection of trademark rights.

According to the above analysis, there are no fundamental differences in terms of generic names in China, France and Germany. So what is the attitude of Anglo American law system countries? Let's look at the situation in the United States. American law does not adopt the formulation of generic name, but uses the term "generic term". American jurisprudence believes that the genus is a generic (species) product belonging to the genus (genus). The name of the genus is directly telling consumers what they want to buy rather than what products they produce. Therefore, in general, even if there is sufficient evidence to prove that the second meaning (secondary meaning) associated with a particular producer has been acquired, it can not convert the generic name into a registered trademark. This seems to tell us that in American law, the name is absolutely not a trademark. However, the change of the standard of common law has provided us with another clue: in a specific case, a name is of trademark significance. In the process of solving the problem of how to judge a name, the US court has developed two criteria: one is the primary significance test, which aims at the trademark being reduced to the name because the trademark owner does not control the improper use of the third party. One is Generic species The standard (genus-species test) is mainly applicable to the trademark's inherent meaning. According to the former standard, the court should decide that most consumers or the relevant public believe that the trademark terms are mainly used to distinguish the goods, or to distinguish the producers. According to this standard, to prove that a trademark has become a generic name, the parties must prove: first, determine the product category related to the disputed trademark. service Categories; second, determine the relevant public who purchase the product; third, prove that the main meaning of the trademark to the relevant public is to distinguish the product or the producer. (11) according to the standard of generic species, if a specific product or service belongs to a large category of products, the name of the product will become a generic name. (12) the standard of the genus species will bring unfair consequences to the trademark owners, because it is a pure objective criterion. Trademark is a kind of logo which plays a psychological function. It embodies a cognitive state of consumers. Therefore, it is unscientific to judge the significance of trademarks with purely objective criteria. In the case of Mishawaka Rubber & Woolen Mfg.Co.v.S.S.Kresge Co., Frankfurter justice of the United States Supreme Court proposed that we live according to the mark, and we also buy products according to the mark. Trade marks are a shortcut to guide buyers to choose the goods they need. We can even say that trademarks guide buyers to decide what they need. Trademark owners try their best to make use of human psychological inclination to create a consumption atmosphere through the attraction of moving signs. No matter what kind of means it takes, its purpose is only one: through trademark, to a potential customer to convey a desire for trademark tagged products. Once this purpose is achieved, the trademark owner obtains some value. If other people steal the attraction of this mark, the trademark owner will be entitled to legal relief. This is the basic idea of legal protection for trademarks. (13) this indicates that the law protects the trade mark because it recognizes the psychological function of the mark (psychological function). (14) therefore, the court of appeals of the United States circuit court amended the purely objective criterion of the genus, and introduced the main meaning standard to the two step judgment rule. The first step was to determine what the name of the commodity or service was for the disputed trademark. The second step was whether the relevant public referred to the trademark as the name of the commodity or service. (15) in this way, the US law will be referred to the "relevant public" subjectively. In fact, it also acknowledges the trademark meaning of a given name under certain circumstances. This is achieved through strict identification of the name, restriction of the identification of the generic name, and exclusion of many names from the generic meaning.