How to use a trademark that lacks distinctiveness to gain distinctiveness?

The distinctiveness of a trademark is the most basic requirement of a trademark and the core feature of its existence. When a logo is not significant or obvious, it should not be registered as a trademark. However, it should not be overlooked that there are many signs that lack significance in life practice, but after long-term and lasting use, they have formed acquired characteristics to distinguish the origin of goods among the relevant public, and have the basic requirements for trademark registration. Therefore, based on the influence of trademark registration on market competition, trademark distinctiveness can be divided into "inherent distinctiveness" and "acquired distinctiveness". Intrinsic distinctiveness refers to the distinctiveness required by trademark law. [2] And "acquiring distinctiveness" is accompanied by the deepening of people's trademark awareness. Signs that originally lacked inherent distinctiveness were gradually recognized and gained distinctiveness through long-term continuous use.

1. What is "trademark acquisition salience"? "Trademark acquisition distinctiveness" refers to a sign that lacks inherent distinctiveness. After long-term continuous use, it has a new meaning. When it has the ability to identify goods, it is regarded as distinctive. [3]

The basic function of a trademark is to indicate the source of goods or services through certain marks, so that the relevant public can distinguish different goods. Therefore, trademarks must have the distinctiveness of identifying the source of goods. In general, "distinctiveness" is an independent feature that distinguishes a trademark from other trademarks, and "acquiring distinctiveness" is an exotic product in China. There was no provision in the original Trademark Law, but with the emergence of a large number of special cases such as Wuliangye and Shanglian, when the Trademark Law was revised for the second time in 200 1 year, the system of "obtaining trademark distinctiveness" was formally confirmed in legislation.

Article 11 of the Trademark Law, the following marks shall not be registered as trademarks: (1) Only the common name, figure and model of the goods;

(2) directly indicating only the quality, main raw materials, functions, uses, weight, quantity and other characteristics of commodities;

(three) other lack of distinctive features.

A trademark listed in the preceding paragraph may be registered as a trademark if it has obvious characteristics and is easy to identify after use.

Second, the application analysis of "trademark acquisition salience" in judicial precedents In judicial practice, trademark confirmation administrative cases are one of the important types of cases tried by courts in China. In recent years, the number of such cases has also increased year by year, and the problem of fact finding and legal application of "trademark acquisition salience" has also become prominent.