三维标志的显著性及美学功能性的判断

Determination of Distinctive Character and Aesthetic Function of Three-dimensional Marks

2001年修改的《商标法》最重要的变化之一是将三维标志纳入到可注册的商标标识范围。因三维标志有着与平面标志不同的内在特点，故商标法要求可以注册为商标的三维标志既要具备显着性，还不属于由技术功能或美学功能决定的标志，即体现技术功能性及美学功能性的三维标志不得注册为商标。实践中，尽管三维标志商标申请所占比例很小，但申请数量一直呈上昇态势，因此，如何正确地认识三维标志的可注册性是实践中需要更多面对的问题。现有的此类案件，大多涉及的是三维标志的显着性判断问题，而在近日刚刚审结的雀巢方形瓶案件中，则同时涉及“显着性”及“美学功能性”两个问题的判断。笔者在判决中对上述问题作了较为详细的评述。

One of the most important changes in the Trademark Law as of 2001 is to have included three-dimensional signs into registrability. Since three-dimensional signs have the in- trinsic character different from that of their two-dimensional cousins, it is, therefore, required in the Trademark Law that for a three-dimensional sign to be registered as a trademark, it should be distinctive, and, meanwhile, should not be one determined by its technical or aesthetic function, that is, a three-dimensional sign embodying technical or aesthetic function should not be registered as a trademark. In prac- tice, applications for registration of three-dimensional marks account for a very small percentage of the constantly in- creasing total number of applications filed for trademark registration. For this reason, how to correctly understand the registerability of three-dimensional signs is an issue en- countered more often in practice. To date, most cases of the nature involve the issue of determination of the distinctive charter of three-dimensional signs. But in the recently adju- dicated Nescafe square bottle case this writer has heard in- volved the two issues： determination of distinctive character and aesthetic function. This writer will be commenting, in a relatively detailed manner, on the issues in the decision.