A consumer survey, as an instrument used to gather data on the beliefs and attitudes of consumers towards trademarks or products, is considered to have vital influence in trademark litigation. In recent years, courts have come to rely increasingly on the results of surveys conducted by one or both litigants in trademark lawsuits. The practical issue for trademark litigants is determining whether, when and how to develop survey evidence, given the cost, time, and other constraints. To shed light on this specific issue, we undertook a statistical analysis of trademark infringement cases in China. By examining 17 836 cases decided by China's courts over a 16-year period from 2001 through 2016, this article presents an empirical study assessing the statistical relationship between the presentation of survey evidence and case outcomes. The goal of our study is to help trademark litigants to determine the importance and value of presenting consumer surveys in trademark infringement case and make more informed decisions about their litigation strategies.
Traditionally, trademarks convey source information to consumers through the use of words, letters, or numerals. The types of signs that are nowadays considered as being capable of constituting a trademark have expanded beyond words or figurative devices. Although non-traditional trademarks have received wide acceptance in many jurisdictions, the hurdle for obtaining registration appears to be higher than for traditional marks. Two issues have figured predominantly in the debate over protection for non-traditional marks: distinctiveness and functionality. Applications for non-traditional trademarks in China have given rise to a number of judicial decisions. The jurisprudence in China has taken a cautious approach in making decisions on a case-by-case basis, depending on the kind of mark in question. After a brief introduction to non-traditional marks, interprets the trademark definition in the China Trademark Law and reviews the extent to which non-traditional marks might be protected under the existing laws. , , and present a comprehensive and systematic analysis of the functionality and distinctiveness issues for three-dimensional marks, colour marks, and sound marks. Finally, the Conclusion highlights the main problems in the protection of non-traditional trademarks and proffers solutions for analysing distinctiveness and functionality issues for non-traditional marks.