Domestic protection of color trademark should be concernedOn December 4, 2006, the United States Patent and trademark (trademark, trademark registration, trademark queries, China trademark website) contains a color trademark examination issued amendments, further defined the color marks substantive changes to the regulations. In contrast with this is my 2001 revision of trademark law while increasing the provision for color marks, developed by the China National Administration for industry and commerce the trademark examination and cognizance standards, provisions concerning color marks are still relatively simple. On December 16, 2005, settled in Sweden kaipuman color trademark registration was rejected, also from the practice reflects domestic law enforcement and judiciary tend to color marks is strictly limited.
color marks, refers only to a single color logo and a color combination trademark, does not include colour and other factors besides the color combination trademark, color marks set out in China's trademark law refers only to the color combination trademark. Network recently reported "first color marks the birth of Lianyungang" misreading of connotation and extension of color marks, the fact is, China has not yet registered any color marks, including, a color combination trademark.
since the TRIPS Agreement provided in the 15th paragraph allows the color combination trademark registration, so there is recognition for a color combination trademark registration in many countries, but allows a single color trademarks registered in very few countries, only the United States and the United Kingdom, and France, and Canada, Switzerland and other countries. Against allowing a single color theory includes the color exhaustion of trademark registration says, color confusion, colours and functional theory, is based on the color of competition caused by the monopoly influence and made identification difficult for consumers.
United States is the first country for the protection of color marks. In the United States only use trademarks not only originally designed for trademark registration on their significant, and can be used in long-term brand and gives access to the so-called "second meaning", which eventually required by trademark distinctiveness. United States protection of color marks or even a single color trademarks have strong institutional basis. Qwens-Corning company Yu 1987 in its glass insulation products Shang success get pink trademark registered, Qualitex company Yu 1995 in its "dry cleaning hot clothing Board mat" products Shang after twists and turns, and eventually through Federal highest court judgment confirmed its on "Gold Green" trademark of ownership, are based on on their trademark up thirty or forty years of continued using and widely publicity makes its trademark on related public formed reflex type of products source recognition function.
it is worth noting is that the two marks are single color marks, it may be permitted to register reflects the United States in the protection of trade marks in colour and depth.
because of censorship to a trademark registration, trademark of INTRINSIC DISTINCTIVENESS or inherent distinctiveness in trademarks review decision meaning an exceptionally big. Although relying on the current technique of chromatic aberration can be created there are 200,000, but the chromatic aberration of the eye can identify only 750; with color only and does not depend on any other factors (such as text, graphics, and so on) to obtain the distinctiveness of trademarks, trademark or a registration of a design review phase with great difficulty. Like the United States pointed out in trademark examination guides, color marks can never be inherently significant. In China's trademark system system, if the color registration review direction does not change, will remain with "color marks is too simple" and dismissed the application for registration.
, however, with the widening of the scope of trademark protection, whether to grant a registration of color marks, the protection of color marks, and has become the trademark examination and hearing the inevitable problems. Sweden kaipuman company's trademark registration has issued a challenge to China's relevant departments. In the context of economic globalization and international trade ties, EU Member States and the United States is China's most important trading partner, but intellectual property rights has become the focus of Sino-US and Sino-European trade and the main obstacle to. In addition to patents, copyrights, in two large trading partners in protection of color trademark case, if our country continues to be limited, such controversies will inevitably affect bilateral trade cooperation.
between China and United States trade marks law system is not exactly the same, but the United States Patent and Trademark Office trademark of color review relevant provisions of the guidelines and their practical experience of our work without reference.
since simple color or color combination to according to its inner significantly sex allowed registered, recommends China trademark review sector don't stuck Yu color trademark of inner significantly sex and confirmed its whether meet trademark significantly sex of requirements, can in excluded the color function sex of premise Xia, further analysis its on industry within other competitors by caused of effect; and in excluded color monopoly possibilities of based Shang, based on applicants or plaintiffs on its for using and made of significantly sex of full proved material to study the trademark of significantly sex, To determine whether the protection accorded to trademarks.
in a foreign country unable to secure judicial protection of color trademark in domestic cases, suspected to be connected with the same or SIMILAR MARK or merchandise domestic enterprises can not be blindly optimistic. With the gradual improvement of legal protection of intellectual property in China, any market players should not have the idea of circumventing the law, abuse of rights. Even if the color marks are still unable to access to justice in domestic trademark law system, the relevant parties may merchandise from China's anti-unfair competition law provisions found in the basis for protection, but can also apply for a design patent and within a certain time have the right to prohibit others from using.