Weakly distinctive trademarks mainly include suggestive trademarks,descriptive trademarks,trademarks containing descriptive elements or public domain elements such as place names,trademarks with degraded distinctiveness,etc.The principle of proportionality requires that the scope of the right to prohibit weakly distinctive trademarks be appropriately limited.The owner of weakly distinctive trademarks has no right to prohibit others from properly using the descriptive marks,place names and other public domain elements contained in the trademark.When the distinctiveness of a trademark gradually deteriorates,the scope and intensity of its protection should be reduced accordingly;the trademark law should also reserve sufficient space for the rights holder of a weakly distinctive trademark to regulate the use of the trademark.In infringement cases,the main considerations should be whether the defendant's use of the relevant marks constitutes trademark use,whether the plaintiff's exclusive right to use the weakly distinctive mark is stable and well-known,and whether its distinctiveness determines whether the trademark is similar or the goods are similar.Whether the defendant's use of relevant marks is malicious and other factors are closely related to the distinctiveness of the trademark.In the case where the inherent distinctiveness of the right trademark is weak,unless the defendant uses the relevant marks.The behavior is obviously malicious,otherwise the court is more likely to find that reverse confusion is not established.
关键词
弱显著性商标/商标知名度/比例原则/公共领域元素/反向混淆
Key words
Weakly Distinctive Trademark/Trademark Reputation/Principle of Proportionality/Public Domain Elements/Reverse Confusion
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