2017년 3월 14일 화요일

3D trademark

3D trademark

A bottle shape (reference photograph) of Coca-Cola. It is the example of the registration 3D trademark which is under the protection by the United States of America federation Trademarks Act (the orchid ham method) (registration 696147).

The 3D trademark (りったいしょうひょう) means the trademark consisting of three-dimensional shapes. As the mark to distinguish it from them which the 3D trademark assumes it a shape of the packing itself of a product and the product, and is used by installing it in a store and the facilities to provide labor (service), and transmit an origin of offer of a product and the labor to consumers, and others provide function (source indication function, oneself and others product identification function). I distinguish it from a 3D trademark and may call a superficial trademark "a plane trademark".

The 3D trademark is protected like a general superficial trademark by the national law of a treaty and all the countries of the world.

In Japan, as for the three-dimensional shape of the product having a oneself and others product discrimination, a trial example in acknowledgment of the protection exists as a thing equal to "the indication such as products" of Unfair Competition Prevention Law a lot. In addition, Trademarks Act revision was made for reasons of (1996), the need of the international harmony of the trademark system in 1996, and the registration system of the 3D trademark was started (the next year April 1 enforcement).

An example of the registration 3D trademark in Japan includes Peko, Poko doll (Fujiya Co., Ltd.), Colonel Sanders statue (Kentucky Fried Chicken Japan Co., Ltd.), Honda turnip (Honda Motor Company, Limited). In addition, as a three-dimensional shape authorized as a product, business indication of Unfair Competition Prevention Law of Kani Doraku Co., Ltd. there is "signboard (Osaka District Court judgment May 27, 1987) whether work".

Table of contents

Protection of the 3D trademark by the treaty

Agreement about the trade-related side of the intellectual property

Agreement (TRIPs agreement) Article 15 (1) about the trade-related side of the intellectual property accepts that I exclude a mark (a sound trademark or smell trademark) which I cannot recognize by sight from a protection object, but the rule of the clear provision to accept that I exclude a 3D trademark from a protection object does not exist.

Protection of the 3D trademark in Japan

In Japan, I plan the protection of the 3D trademark by Trademarks Act and two laws of Unfair Competition Prevention Law as I spoke it in the beginning.

Unfair Competition Prevention Law

 
Was told to deal with "the indication such as products" in Unfair Competition Prevention Law by Osaka District Court judgment (May 27, 1987); do work; a signboard (Kani Doraku)?

Using the well-known "indication such as products of another person," an act (well-known indication confusion creation act, clause 1) to bring about confusion of the source and a well-known product of another person define the act (著名表示冒用行為, clause 2) using the indication as an unfair competition, and Unfair Competition Prevention Law Article 2 Clause 1 aims for taboo request and the criminal charge of the use. I am defined as "thing (Unfair Competition Prevention Law Article 2 Clause 1 1 parenthesis book) displaying a full name, a business name, a trademark, a badge, a container or packing or other products or the business of the product to affect the duties of the person" with "the indication such as products" here.

Is the shape of the article used for business, and is admitted that see a trial example the indication characteristics such as products about the thing having a oneself and others product discrimination widely without remaining in a shape of the packing and product itself of the product [1]; [2].

For example, of whether "work signboard" installed in the outer wall surface of the store of the crab restaurant the indication characteristics such as products were competed for;, by the Osaka District Court judgment (May 27, 1987) of "the signboard case, was installed in the store of the crab restaurant whether moved"; was admitted that a signboard was the indication such as products request of the ban on use of the signboard and the compensation for damages whether moved saying that was authorized, and an act to raise the signboard which imitated it corresponded to an unfair competition (well-known indication confusion creation act) of Unfair Competition Prevention Law Article 2 Clause 1 1.

Trademarks Act

Reason of the introduction

The trademark protected by Trademarks Act was only a plane trademark until the revised Trademarks Act enforcement of (1997) for 1,997 years. However, I gave a conclusion that the introduction of the registration system of the 3D trademark was proper based on three [3] following reasons, and Industrial Property Council reached trademark law revision of 1996, the system enforcement of April 1, 1997.

  1. It being thought that there is needs of the 3D trademark protection practically (about various kinds of three-dimensional shapes, there are a lot of examples that trademark registration is accomplished in form with this as a plane figure).
  2. Under Unfair Competition Prevention Law, an example (trial example) accepting protection as "product indication" about the shape of the product definitely exist a lot.
  3. It becoming the international trend to entitle the three-dimensional trademark (the United States, the U.K., France, Germany, Canada, Benelux aim at a 3D trademark for the registration in many countries).

Other reasons include that there was an opinion to violate 5B (protection rule of foreign registered trademark (terKEL trademark)) of Paris Convention Article 6 about the protection of the industrial property as for not registering a 3D trademark having a oneself and others product discrimination registered in a country except Japan in Japan.

Contents of the protection

In the quality dried bonito, I explain the protection contents of the 3D trademark by the Trademarks Act. There are not that of other general trademarks and the changing thing, but, as for the protection contents of the 3D trademark, special rule and interpretation exist in principle from a characteristic that a trademark is three-dimensional.

Application procedure

When I register a trademark and apply, I always list trademarks in a document (plane) and must perform it even if a target trademark is three-dimensional and cannot submit the three-dimensional models of the trademark to the Patent Office. Therefore you must list so in an application when a trademark listed in a document is a 3D trademark (Trademarks Act Article 5 Clause 2).

Registration requirements

A 3D trademark is registered and, in requirements to be under the protection, explains a rule and interpretation peculiar to a 3D trademark.

  • Have a oneself and others product discrimination
You must have the oneself and others product discrimination that is the essential function of the trademark so that a 3D trademark is registered (Trademarks Act Article 3 1 項各号). For example, I cannot receive trademark registration because the three-dimensional shape not to be over a range of the cube and common three-dimensional shape such as the ball and shape itself of the product does not have a oneself and others product discrimination (Trademarks Act Article 3 Clause 1).
The case that having oneself and others product discrimination or not was competed for includes, for example, "lactic acid bacterium drink storing container (Yakult container) case" (Tokyo High Court July 17, 2001 judgment). As for this case, Yakult Honsha Co., Ltd. which expressed its disapproval of it submitted suit for the cancellation of the judgment for a judgment of the Patent Office which refused the trademark registration application of the 3D trademark having the shape of the lactic acid bacterium drink storing container (Yakult container) in the Tokyo High Court.
The shape of the container was unique, and Yakult Honsha Co., Ltd. which was a plaintiff insisted on having a oneself and others product discrimination by the reason of "raising the diameter for the barrel by middle of the bottle, having referred a round "constriction" to the upper part slightly from the middle, having assumed a shape of "the taste" the shape of "the mouthpiece of the nursing bottle", "a constriction", and size of (appearance) being small, and it being an invisible shape in sight". However, the court supported a judgment of the Patent Office which refused trademark registration by Article 3 Clause 1 3 saying, "I could not admit that the characteristic that I could not expect judging from the manufacturing method, a use, the function of the product made in plastic throwaway container which was a general storing container of "the lactic acid bacterium drink" which was the designated product of the vows by Buddhas in previous lives or worlds to save all sentient beings trademark was in the vows by Buddhas in previous lives or worlds to save all sentient beings trademark in consideration of these points either.".
However, the tendency to judgment about the 3D trademark of the court changes. On November 16, 2010, the intellectual property high court gave judgment that I had a oneself and others product discrimination about the case (the second Yakult 3D trademark case) of the different 3D trademark of Yakult Honsha Co., Ltd. [4]. Yakult performed questionary survey whether or not I remembered "Yakult" using the colorless container of the solid shape that was the same as the trademark concerned and was an answer that more than 98% remembered it. It is explained that this questionnaire findings affected the conviction of the judge [5].
  • Do not be an indispensable shape
Trademarks Act Article 4 Clause 1 18 is a rule established by the introduction of the 3D trademark system newly. 同号 prescribes that "the trademark only consisting of the three-dimensional shapes that are indispensable to secure a function of the packing of shape であつて of the packing of a product or the product, the product or the product" cannot receive trademark registration. When it gives monopolistic usufruct in an indispensable shape to refuse the registration of the 3D trademark only consisting of indispensable shapes, it brings about a result to let you monopolize production and sale about the packing of the product and product virtually, and this is because it inhibits the free competition itself that Trademarks Act originally premises.
By the examination business of the Patent Office, I adopt following two as a criterion whether or not it is "the three-dimensional shape that is indispensable to secure a function of the packing of a product or the product" [6].
  1. Does the alternative shape that can secure the function exist elsewhere?
  2. When you assume a shape of a product or the packing the alternative three-dimensional shape concerned, can you produce it for an expense of (or lower than it) at the same level?
The registration is refused even if it is a three-dimensional shape having a oneself and others product identification function (Trademarks Act Article 3) when it is an indispensable shape.
Effect of the trademark about the 3D trademark

It is provided that the effect of the trademark extends to the use act of the trademark of the following four kinds types (Trademarks Act Article 23, Trademarks Act Article 37 1). This does not trade it with the effect of the trademark about the general trademark.

  1. Use (right to monopolize, Trademarks Act Article 23) of the registered trademark about the designated product, labor
  2. Use (prohibition right, Trademarks Act Article 37 1) of the trademark similar to a registered trademark about the designated product, labor
  3. Use (same as above) of the registered trademark about the product labor similar to designated product, labor
  4. Use (same as above) of the trademark similar to a registered trademark about the product labor similar to designated product, labor

As well as 3D trademarks, a plane trademark may resemble a 3D trademark. Each 3D trademark and plane trademark is recognized through sight, and this is because the trademark which both united is possible [7].

For example, the 3D trademark of the Peko image (Fujiya Co., Ltd.) resembles the plane badge which described Peko in a plane. Therefore, I constitute a trademark infringement when I use a picture of "Peko" as a trademark without permission when I sell a designated product and a same or similar product (Trademarks Act Article 37 1).

Adjustment with other intellectual property rights

As for the three-dimensional shape of the article, a 3D trademark and the trademark to intend for may conflict with these exclusive exclusion right to have possibilities to become a target of a patent right, the utility model right, a design right, the copyright. For example, the shape concerned becomes a target of the patent right and utility model right when the three-dimensional shape of the registered trademark develops some kind of technical effects (Patent Law). In addition, the shape concerned becomes a target of the design right if the three-dimensional shape is the shape of the article letting you raise a beautiful sight through sight (Design Law Article 2 Clause 1). Furthermore, the copyright is for the shape concerned if the three-dimensional shape is the expression of creating it of thought or feelings (Copyright Act Article 2 Clause 1 1).

The benefit and protection of the law to protect these rights may belong to a person varying in the patent right for the same shapes, the utility model right, a design right, a copyright each lawfully to be different. However, the profit of other rightful claimants will be remarkably spoiled when the trademark incarnation about the 3D trademark admits that I use a registration 3D trademark of the self freely with the 3D trademark concerned unconditionally without receiving effect of the other exclusive exclusion right for shapes of the equivalence.

Therefore Trademarks Act Article 29 plans these right-related adjustment to conflict with it mutually. In other words, I decided not to be able to use a registration 3D trademark of the self without the consent of the rightful claimant who modified the application of the point concerned concerning a right to modify an application (create it in the case of a copyright) done as a standard forward than the application date of the trademark registration application of the self in after ahead of (a copyright the original day of the book (copyright outbreak day)) on a trademark registration application date to affect a trademark of the self and a registration application date to affect other rights.

For example, the trademark that the second has conflicts with the design right that the former has, and when a trademark registration application of the second is done in April, 2006 in April, 2005, the former can carry out registered design of the self freely, but the registration of a design application of the former needs the consent of the former so that the second uses a registration 3D trademark of the self.

Example of the registration 3D trademark
A file: Ookumadouzou.jpg
I register a trademark about the three-dimensional shape of the Shigenobu Okuma image on April 8, 1997, and Shigenobu Okuma image (reference photograph) educational foundation Waseda University applies and is registered on July 10, 1998 (the 4164983rd).

An application was done after the registration system enforcement of April 1, 1997 soon, and the following registration 3D trademarks were registered in 1998 of the next year.

Protection of the 3D trademark in European Union

In European Union, harmony of the Trademarks Act of each country based on an EC trademark order (Trademark Directive) is planned, and the community trademark system keeps regular, too. The community trademark system was founded by "EC 理事会規則第 40/94 (the following, community trademark rule) of December 20, 1993 about the community trademark".

Trademark order Article 2 says, "the trademark is a shape of words, a design, a letter, a number, the product including either mark particularly personal name or the packing, and it can be from the thing which I can express realistically" and does not take off a 3D trademark from a protection object.

I am as follows when I compile the registration requirements of the 3D trademark in a trademark order and the community trademark rule.

  1. Having the function as the trademark (trademark order Article 2, community trademark rule Article 4)
    Having the oneself and others product discrimination that trademark order Article 2 and community trademark rule Article 4 prescribe it saying all "are subject to what can distinguish product of the company which there is or labor and it of other companies", and is the essential function of the trademark of the protection is subject.
  2. Do not become a target of the refusal by one of trademark rule Article 3 (1)(e)(i) - (iii) or community trademark rule Article 7 (1)(e)(i) - (iii)
    • Do not be the shape based on the property of product itself
    • Do not be a shape necessary to obtain a technical result
    • Do not be a shape to give substantial value to a product
  3. In addition, meeting the registration requirements of the general trademark

References

  1. ^ Tsuneyuki Yamamoto "general statement Unfair Competition Prevention Law third edition" (association of invention, 2002), page 53
  2. ^ Ministry of Economy, Trade and Industry intellectual property policy room compilation "article by article commentary Unfair Competition Prevention Law 2004, 2005 revision" (有斐閣, 2005), page 46
  3. It is quoted by ^ Patent Office "commentary (association of invention, 1996) of the 1996 revision industrial property method", page 159
  4. ^ Judgment cancellation request case, 22, Heisei (line ケ) 10169 (PDF file) - court
  5. ^ "discrimination and questionary survey - second Yakult 3D trademark case - of the 3D trademark," it is Intellectual Property Management Div. law of nature June, 2011 issue ,P837-P846
  6. It is quoted the ^ Patent Office "trademark examination standard revision eighth edition" by a commentary part of Trademarks Act Article 4 Clause 1 18
  7. ^ Patent Office "commentary (association of invention, 1996) of the 1996 revision industrial property method", page 162
  8. ^ "Peko" - Japan Japan Patent Attorneys Association
  9. ^ http://www.tm-library.com/data/theme/zukei/rittai_mozinasi_touroku2012-04-06.pdf - trademark museum
  10. ^ chronological table 1998 - sonic channel
  11. ^ http://www.honda.co.jp/news/2014/c140526.html

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