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What is descriptive trademark use?




Trademark law allows for non-distinctive elements, such as "Cola" in "Coca-Cola," to be included in a trademark. These elements can be registered if they acquire distinctiveness through use, as is the case with "Wuliangye." Prohibiting the use of "Cola" after the registration of "Coca-Cola" would have been against the public interest and could have prevented the appearance of other trademarks like "Pepsi Cola." According to the TRIPS Agreement, exceptions to trademark rights, such as fair use of descriptive terms, may be provided as long as the legitimate interests of both the trademark owner and third parties are taken into account. It is important to note that descriptive trademark use must be used on a product in the sense of trademark law. If a trademark is not being used to indicate the source of a product, such as when mentioned in a book, descriptive trademark use is not applicable.



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