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Immaterialgüter- und Wettbewerbsrecht

Multi-dimensional Analysis of Fundamental Categories in Trademark Law

The project can be divided into two parts as methodology and category theory. Methodology provides theory basis and analysis tools for category theory, and category theory is the specific application of methodology. The project will also make some comments on the modification of Trademark Law.

Last Update: 24.09.13

Part A Methodology

1. Economical Analysis: The trademark is the important carrier of an enterprise’s reputation. To be specific, trademark can not only urge enterprises to provide quality products, but also can reduce the searching cost of consumers. 2. Semiotic Analysis: The essence of trademark law is a kind of semiotic rule, semiology is not only a kind of methodology but also related to ontological issues in the area of trademark law. 3. Psychological Analysis: In essence, trademark is the property established on the basis of consumers’ mental state. So as basis of the trial, trademark law shall give ample attention to the psychological mechanism of trademark law operation.

Part B Category Theory

1. Trademark Right: The object of trademark right is not a logo or design itself, but is a structural symbol. This project will research the object of trademark right by semiotic theory, so as to define trademark right accurately. 2. Trademark Right Verification: While most nations have established registration system, the trademark right is essentially acquired through actual use or registration. In the current world, there still exit differences between the two models, but nearly all the nations adopt a right verification system of a compromising character to some extent. 3. The Distinctiveness: Distinctiveness means a trademark’s ability to identify and distinguish the owner’s goods from those manufactured or sold by others. According to the semiotics, there exists no born trademark and only those who have acquired distinctiveness could become the real trademark in the market. It is the acquired distinctiveness that determines the strength of a mark. 4. Likelihood of Confusion: likelihood of confusion acts as not only the main criterion of trademark infringement, but also the important yardstick in trademark registration system. In fact, the scope of the owner’s right lies on likelihood of confusion. 5. Anti-dilution: Analyzing the history and nature of dilution with the perspective of semiotic and psychology; Analyzing the validity of anti-dilution by economic methods; Analyzing the nature of goods generalization combining with the phenomenon of brand extension. 6. Common Consumers: Trademark is the property existing in consumers’ mental. It has great theoretical significance to define the concept of “common consumers” accurately through psychological and semiotic analysis, which directly affect the judicial practice of trademark law.

Persons

Doctoral Student

Xuelong Peng

Main Areas of Research

Funktionen, Zielsetzungen, Werte und Wertungskriterien