我国声音商标显著性审查标准探析

Examination Standard of Sound Mark Distinctiveness in China

从声音商标显著性出发,分析我国现行声音商标审查标准,并结合域外规定探析了我国声音商标审查原则和相关依据;提出了以现有审查标准为基础,增加整体认定原则、在不侵犯他人在先权利和排他性持续使用时间的基础上,引入相关公众认知、广告宣传、动态创新性作为声音商标显著性审查的依据。

Sound mark examination legislation has been existing in European countries for a long period. In order to comply with Agreement on Trade-Related Aspects of Intellectual Property Rights（ TRIPs） agreement and international trend of trademark registration,the new Trademark Law of the People＇s Republic of China came into effect in May 1 st,2014,which clarified sound mark could be registered for the first time. However,owing to distinctive features of sound mark,protection of sound mark is still in the exploration stage,and development of theoretical basis and practice are not mature and relevant legal system is not perfect either. This paper intends to analyze current examination standard of sound mark in our country from the distinctiveness of sound mark,and explore the principles and basis of sound mark examination by referring to foreign regulations. It is proposed that based on the existing examination standard,principles of overall identity and non-aggression prior rights should be added,and exclusive continuous using time,public recognition,advertising and dynamic innovation should be introduced to the examination basis of sound mark distinctiveness.