The "distinctive character" mentioned in Chinese Trademark Law is often equated with "distinctiveness" or "the capability to distinguish the source". However, it is still unclear whether it refers to the appearance element of a trademark, the overall capability to distinguish the source, or the distinction from the designated goods. The root of the problem lies in the influences of the different legislative models represented by the Paris Convention and the TRIPS Agreement on the development of the Chinese trademark law legislative process, as well as the confusion between the positive definition method and the reverse inference rule of source identification. The solution lies in the clarification of the components of the capability to distinguish the source and completing the rules of reverse inference. The appearance element of a trademark is also one of the necessary constituent elements of the capability to distinguish the source, but it is presented in different forms in different jurisdictions. Based on Chinese legislative tradition and practical experience, the ternary symbol structure of trademarks, and the theoretical reference of adjacent disciplines, "distinctive character" can be reinterpreted as "the distinctive appearance of trademark symbols that is sufficient to affect the identification of sources". |