As the status of intellectual property in contemporary economic and social development continues to rise, the importance of its protection has become increasingly prominent.  The most important feature of intellectual property is exclusiveness, that is, it excludes the free use of others without permission.  However, the acquisition of intellectual property rights is inseparable from the use of public resources and previous achievements, which involves the public domain that is not protected by intellectual property rights.  At present, the number of trademark registrations in China ranks among the top in the world, but trademark hoarding, squatting, and registration applications that are not used for the purpose of registration occur from time to time, which violates the legislative purpose of the trademark law and squeezes public domain resources.  Therefore, it is necessary to clarify the issues related to the distinctive features of trademarks based on the public domain perspective, define the scope of protection of trademark exclusive rights, protect the interests of consumers, and promote healthy market competition and healthy development.

According to the provisions of China's trademark law, the distinguishing feature is whether the mark can become the basic condition for the protection of trademark rights.  From the perspective of the public domain, the distinctive feature of a trademark is an important lever to maintain the dynamic balance between the public domain and the monopoly domain of trademark exclusive rights.  The existence of distinctive features determines the dynamic boundary between the mark in the monopoly domain of the protected trademark and the mark in the public domain. Marks that do not have distinctive features cannot be protected by trademark exclusive rights.  If a distinctive feature is obtained through use, it can be protected by trademark law.  After the trademark is approved for registration, if the trademark loses distinctive features due to improper use and becomes a generic name for goods or services, the mark enters the public domain.

When defining the distinctive features of trademarks, concepts and concepts in the public domain can be introduced.  In trademark rejection, opposition, invalidation and litigation procedures, the distinctive feature of a trademark is a substantive issue that must be involved.  The distinctive feature of a trademark is the basic condition for a mark to be protected by the exclusive right to use a trademark, and it is also the main boundary between the public domain and the monopoly of exclusive right to trademark.  From the perspective of the public domain, first consider whether a trademark has acquired distinctive features through use.  At the same time, signs that flow into the public domain must not re-enter the domain of trademark exclusive rights monopoly by acquiring distinctive features, so as to ensure a clear distinction between the trademark exclusive right monopoly domain and the public domain. Boundary, and maintain the balance between the interests of trademark owners and the public interests of society.

        From IPRCHN

September 9th, 2020