Research on Non-Traditional TrademarkFocusing on the Type of Three Dimensional Trademark

• Main Authors: Wen-Ching Chung, 鍾文菁
• Other Authors: Hwai- Tzong Lee
• Format: Others
• Language: zh-TW
• Published: 2016
• Online Access: http://ndltd.ncl.edu.tw/handle/exzzm7

碩士 === 國立中興大學 === 法律學系科技法律碩士班 === 104 === Intellectual property rights include patents, trademarks, copyright and trade secrets. These intangible property rights have been developed under the modern civilization and are gems of human wisdom. The trademark right is an offspring of the development of business practices. It can be described as the most commercialized part among various intellectual property rights. The value of trademark rights is a cumulative achievement of business operation. Trademark value is somehow dependent on the enterprise’s life, and usually as the enterprise’s life extends, the relative value of its trademarks increases. With the propulsion of globalization wave of economy and marketing campaigns, media and advertisement projects are changing each passing day. Trademark types are also increasingly diverse. It isn''t limited to a visual scope, and it’s much more than a word, a design or a simple logo. Since the highly developed business activities and globalization, the global market has become more competitive than ever. In order to attract consumers, the way of promotion for products and services is always aligned to continuous innovation. Enterprises now tend to use the special shapes of goods, packaging, containers, appearances and so on as well as sound and even colors to attract consumers to buy their products. It also leads to the consumers awareness, and thus a variety of new types of trademarks thus gradually evolve. With such evolvement, slogans and motions are both acceptable to be registered as trademarks nowadays. Trademarks become increasingly diverse and special in terms of form, from traditional flat ones to three-dimensional ones, from silent ones to phonic ones, from static ones to dynamic ones. Registrable trademark types include appearance, shape, packaging, three-dimensional, color, sounds, motion, scent, hologram, gesture, taste, texture, position, etc. All these kind of marks may be called non-traditional trademarks. In Taiwan, among all the non-traditional trademark applications, three-dimensional mark applications are prevailing. Therefore, this study is aimed at distinctiveness and requirements for registration of three-dimensional trademarks. Also considered is comparison between three-dimensional and traditional trademarks. Furthermore, what is to be identified here is whether there is concurrence or conflict between non-traditional trademarks and the other intellectual property rights? In particular, investigation is made to identify overlaps between three-dimensional trademarks and designs as well as copyrights. Initially only three-dimensional shapes could be protected as design patents in the patent law. After registration of trademarks is available to three-dimensional shapes, there are concerns whether such design patents will eventually lose its existence and normative meaning in three-dimensional shapes and whether it disrupts the basic norm of intellectual property rights. For example, the protection period of a design patent is twelve years form the filing date. After expiration, the design patent will become public property and no longer represent an exclusive right. However, a trademark right can be renewed every decade without limitation in terms of time as long as its owner really uses it in the market. In this case, the trademark right may become a permanent property right. Hence, the study starts from discussion of distinctiveness and requirements for registration of three dimensional trademarks and further contemplates the relation among three dimensional trademarks, design patents, and copyrights.