什麼樣的商標可以註冊律師張源傑
What kind of trademark can be registered?
By Yuan Jie, Cheng (Attorney-At-Law)
一、前言:
1. Introduction:
如果一個商標是在說明商品或服務來自於特定業者,則可以註冊;
If a trademark is describing its product and service for a particular industry, such trademark can be registered;however if a trademark is describing what a particular goods and services are, such trademark cannot be registered.
二、什麼樣的商標可以申請註冊[1]:
What kind of trademark can be registered?[1]
第一種可以註冊的商標,例如google。Google使用於網
第二種可以註冊的商標,例如Apple。Apple是電腦製造商
第三種可以註冊的商標,例如快譯通用於電子字典。
First kind of trademark can be registered is Google, for example. Google uses its Internet search engine, which is completely an innovative name and can therefore be registered as search and network. On the other hand, if you want to register “internet search” “speed” which are relevant to internet search engine’s website and to register them with your trademark, such keywords can’t be registered due to its similarities with its name and service contents.
Second kind of trademark can be registered is Apple, for example. Apple is classified as computer manufacture, even though apple uses its name ‘Apple’ but its product is completely irrelevant to Apple, therefore it can be registered. On the other hand, if Apple uses its brand name to sell juices, fruits, spices, or any associated merchandise of Apple, such name cannot be registered.
Third kind of trademark can be registered is instant dictionary, for example, that is used for electronic dictionary. Instant dictionary does not directly describe its electronic dictionary function, but consumers would need to use some imagination, consideration and feelings associated with analysis before knowing such trademark does associate to its electronic product and services. Therefore such trademark can be registered.
三、爭議之產生
3. Arising Controversial Issues
上述第三種可以註冊之商標,很容易產生爭議。快譯通三個字,
反觀主管機關對於「自然呼吸」之商標用於襪子申請卻拒絕註冊[
The three examples listed above are examples can be registered as trademark. However there may be some controversial issues arises along the way. For example, many people may have question of doubt that isn’t the name “instant dictionary” relevant to electronic dictionary’s characteristics? The nature of electronic dictionary carries its meaning that it’s ‘faster’ than normal paper dictionary, the word ‘translation’s functionality is the same as knowledgeable?
On the other hand, the managerial authorities rejected its application in relation to socks when it comes to the word “natural breathing”[2] The judicial reasoning behind this was due to the word “natural breathing” would implies with natural breathable comfort which isn’t metaphor in nature. Unless socks itself have lungs that is naturally breathable, isn’t it true that socks should be naturally breathable for consumers to use its imagination, consideration and judgment to have this kind of feelings? Where are the standard criteria when it comes to classification as such?
四、結論
4. Conclusion
商標能否註冊之抽象標準看似無困難,
It is not difficult to know whether such trademark can be registered at surface, however due to people’s different perception to things, each case may be different depending on its authorities’ subjective judgment. There is no standard set of criteria. If authorities reject your trademark application, appeals or administrative litigation would be another option to guarantee your right.
[1]商標識別性審查基準,中華民國101年4月20日經濟部經
[2]行政法院88年度判字第3869號判決。
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