The influence of the hottest commodity and its pac

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The impact of the functionality of goods and their packaging on trademark protection

in our usual impression, trademarks seem to be only visually perceptible plane trademarks. The provisions of China's current Trademark Law on "the words, graphics or their combinations used in trademarks should have distinctive features for identification" have always been understood to include only plane words and graphics. However, as for Rolls Royce's flying man, McDonald's Ronald McDonald's clown and Haier's two princes, it is obvious that we cannot deny that they also have the distinctive characteristics of trademark convenience just because they reflect the graphics of two-dimensional plane in the form of three-dimensional solid. Because in fact, they are even more prominent than flat trademarks. On the contrary, if we refuse to protect such three-dimensional trademarks, it is tantamount to encouraging people to infringe the marks of two-dimensional planes in the form of three-dimensional

it should be said that people have no special difficulties in understanding and accepting this kind of three-dimensional trademarks. The real difficulty lies in whether we can further allow those merchants who are difficult to separate from commodities to become other invalid products and the shape of their packaging to be used as trademarks. As a mark to identify the origin of goods, trademarks can obviously only be external objects of goods in our impression, and cannot be confused with goods themselves. The appearance of commodity packaging, especially the appearance of commodity itself, is considered difficult to play the role of trademark from the beginning because of its close relationship with commodities. For example, Coca Cola's curved glass bottle was rejected when it was registered in the UK in 1986. However, the above reasons do not seem to stand up to strict scrutiny, because people trying to break through this concept can not help but ask, since a person's appearance and dress can play the same role as a person's name in identifying a person, Why can't the appearance of goods and their packages play the same role in identifying goods as other signs of goods? 7 isn't the appearance of triangular tobleone Swiss chocolate and the special shape of commodity packaging more eye-catching than text trademarks? In fact, many countries and regions have clearly stipulated the legal status of three-dimensional trademarks in trademark legislation. For example, the coca cola glass bottle mentioned above was registered in the United States as early as 1960, and the appearance of some unique buildings has also been protected as three-dimensional trademarks in the United States. The French trademark law of 1964 also allows the registration of three-dimensional trademarks, and a large number of perfume bottles and wine bottles have been protected by law. Article 2 of the first directive on the harmonization of trademark legislation of Member States enacted by the European Community in 1988 also includes the appearance of goods and their packaging when listing marks that can constitute trademarks

the TRIPS Agreement requires members to protect all kinds of visually visible trademarks, including three-dimensional trademarks. Therefore, with the signing of the TRIPS Agreement and the next revision of China's trademark law, an urgent problem we face is no longer whether to refuse to protect all three-dimensional trademarks, but which three-dimensional trademarks should be refused to protect, especially which goods and the shape of their packaging

practical function of the United States

in the past, because goods and flat trademarks can be separated from each other, there are many possibilities for the same trademark to be combined with different goods. The so-called exclusive right of trademark only covers one or several possibilities, and it is impossible to prevent others from using all goods. That is to say, although trademark protection can be extended indefinitely, it is still a weak protection in essence, Trademark right is only a limited right

this limited right is embodied in: on the one hand, the general graphics and names of goods that everyone needs to use are prohibited from being used as trademarks; On the other hand, according to the exclusivity principle of trademark protection, even if a word or figure that obviously belongs to the public domain is selected as a trademark, such as choosing "Great Wall" as the trademark of wine, the protection of the trademark can only be limited to this specific commodity, and cannot hinder the independent use of the mark constituting the proverb trademark (i.e. "Great Wall") or the use on other commodities (such as computers). However, when the three-dimensional trademark cannot be separated from the commodity, this practice will turn the limited rights into unlimited rights, leading to the monopoly of the mark itself: trademark protection for perfume bottles or wine bottles, which have become an important link for joint research and development, shared achievements and win-win cooperation between enterprises and local governments, does not seem to exclude others from using them to contain other liquids such as beverages and even disinfectants in theory, Monopolizing the triangle of chocolate will not prevent others from manufacturing other products with this shape, but in fact, it is usually difficult to separate the specific shape from the packaging and the commodity itself. Once someone is allowed to monopolize the shape of the commodity or its packaging, others will not scroll the spring fatigue tester. The result evaluation: they can use the shape on the commodity, resulting in a de facto monopoly on the shape. As early as 1961, the customs and patent appeals court (CCPA), the predecessor of the U.S. Federal Circuit Court of appeals, recognized the seriousness of this problem in the trial of Deister case. It believed that, "For some shapes, the court should not create monopoly on the grounds of 'second meaning'. The real reason for this is not that these shapes cannot be distinguished from each other, but because of the overwhelming public policy of preventing monopoly and protecting the public's right to copy. A certain degree of confusion even helps the public enjoy the benefits of free competition." Therefore, the United States not only refused to protect the functional "trade dress" in long-term judicial practice, but also explicitly required that the applicant for trade dress protection must prove that the trade dress has non functionality when amending the Lanham trademark law in 1998. However, it must be recognized that how to specifically identify whether the shape of the commodity and its packaging required to be protected is functional, especially whether the shape can be directly identified as a major part of the expired patent, is still a world problem that is far from being solved. Because the principle of patent protection is that a good technical solution should naturally be provided to the public for free after a period of monopoly. The long-awaited non free use right of the public should not depend on whether there are other technical solutions with the same effect, nor on whether the shape is significant. And no matter what means, including three-dimensional trademarks, if the patentee can continue to monopolize the expired patents, the so-called validity period will be a joke to the public

however, the U.S. Circuit Court of appeals did not reach an agreement on the above issues. The U.S. Court of Appeals for the tenth circuit directly refused protection in the vornado case because the spiral fence shape of the fan required to be protected was a key part of the expired patent, while the U.S. Federal Circuit Court of Appeals (CAFC) held that patent protection and trademark protection were independent of each other in the Midwest case, and the shape could not be determined to be functional simply on the basis of the expired patent, It should be combined with whether trademark protection will significantly hinder competition to judge whether it is functional. In this case, the Federal Circuit Court of appeals held that even if the arc hook of the trailer was considered to have a certain function in the expired patent, as long as the defendant was prohibited from using it, it would not constitute an obstacle to protection as long as it would not "plunge it into an adverse situation obviously unrelated to reputation" or "significantly limit its market competitiveness"

the U.S. Supreme Court concluded the case of marketing display company v. telefix products in March this year, and finally made a relatively clear answer to this question. The case of this case is that the marketing display company (MDI) invented a windproof traffic sign base equipped with springs in 1972 and obtained a patent. The key part of the patent is composed of two springs. The principle of windproof is that with the help of the elasticity of the spring, when the wind is strong, the traffic sign can bend along the wind, and when the wind is weak, it can automatically return to normal. (see Figure 1) after the expiration of the patent, TRAFIX products company (TRAFIX) also began to produce traffic sign blocks with the same shape, resulting in a dispute with the marketing display company

this case actually involves two interrelated issues. One is whether only the appearance that others also need to use can be considered functional? Second, is the fact that the patent has expired enough to allow others to copy it freely

in the ruling of the TRAFIX case, the U.S. Supreme Court avoided the question of whether the appearance features contained in the patented product can certainly not be protected by trademark law, but it held that if an appearance appears in the patent document, unless it belongs to incidental, random or decorative elements, it should be considered as strong evidence of functionality, and the plaintiff can only be protected by overturning this evidence. The Supreme Court welcomes your attention to Jinan new era Gold Testing Instrument Co., Ltd. and believes that it is biased to determine whether the shape is functional only from the need for competitors to use the shape. The correct standard is to examine whether the shape is crucial to the "purpose or purpose" of the product, or whether the shape will affect the "cost or quality" of the product. The appearance that meets this standard, whether it is patented or not, and whether the patent expires or not, cannot be protected by the trademark law

American aesthetic function theory

at present, there is a common view that if a shape was once the main part of the appearance design, it can be used as the preliminary evidence that the shape does not have functionality. Because the design is mainly decorative. If it is functional, it should be included in the protection of utility patents at the beginning. However, this view does not seem to stand the test of "aesthetic function theory"

the so-called "aesthetic function theory" is a concept juxtaposed with the "practical function theory", which first appeared in 1952 in the United States Court of Appeals for the Ninth Circuit. In its judgment on whether a porcelain pattern can be protected, the court held that "if the relevant pattern is an important reason for the commercial success of a commodity, imitation should be allowed for the needs of free competition without patent or copyright protection." This view was too general, and later attacked by other circuit courts of appeals, because it actually means that "the more attractive the design, the less it can be protected." American courts later tried to avoid the concept of "aesthetic function"

however, in the TRAFIX case, the U.S. Supreme Court held that if a shape is not important for the "purpose or purpose" of the product, and will not affect the "cost or quality" of the product, it is necessary to further investigate whether the shape has "aesthetic function", that is, whether banning others from using the shape will put it in an unfavorable competitive position that is obviously unrelated to reputation. Unfortunately, the Supreme Court did not discuss the aesthetic function in depth and in detail. European protection of three-dimensional trademarks European legislators are also aware that overemphasizing the protection of saliency may cause permanent monopoly, so they decide to give priority to functionality when there is a conflict between saliency and functionality. The first directive enacted by the European Community in 1988, while recognizing three-dimensional trademarks, has clearly excluded the marks purely composed of the following shapes through Article 3, paragraph 1, item E) of the directive: that is, the nature of the commodity itself; Necessary to achieve a certain technical effect; Giving a commodity substantial value

as for what is the shape determined by the nature of the commodity itself, the European Court of first instance is trying a double-sided concave with grooves

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