[CN] Trademarks rejected for “lack of distinctiveness”

July 15, 2018

How to trademark China

In examining the trademark application, except similarity, “lack of distinctiveness” of the trademark is one of the reasons for the rejection of the trademark. The distinctive feature of a trademark is the feature that the trademark should possess so that the relevant public can distinguish the source of the product. Judging whether or not a mark has distinctive features, it shall consider comprehensively the meaning of the mark and the appearance that constitutes the mark, the designated use of the commodities by the mark, the cognitive habits of the relevant public who specify the use of the mark, and the actual use of the trade designated by the mark, etc. The article concerning the lack of distinctiveness of trademarks is mainly Article 11 of the Trademark Law, specifically stipulated as follows:

The following mark should not be registered as trademark:-
(1) only has the generic name, graphics, and model of the product;
(2) only directly represents the quality, main raw material, function, use, weight, quantity and other characteristics of the commodities;
(3) other lack of distinctiveness features.

Although the trademark lacking of distinctiveness of the trademarks, certain trademarks can be approved for registration through obtaining distinctiveness. This is the relativity of dismissal and it is not absolutely non-negotiable. Some of the seemingly lack of distinctiveness marks can be clearly publicized by the relevant public through a large amount of publicity and use. As the popularity continues to increase, the distinction between them as trademarks is gradually increasing. You can obtain distinctiveness through use and eventually obtain the trademark right.

For example, “Water-soluble C100” under Nongfu Springs, Nongfu Springs first applied for registration of “water-soluble C100” as a trademark in 2008, but was rejected by the Trademark Office for lack of distinctiveness, and Nongfu Spring Co., Ltd’s appeal was dismissed, the trademark was invalid. The company continued to invest a large number of advertisements to promote “water-soluble C100” and continued to apply for “water-soluble C100” trademark during the publicity process. After several rejections and review procedures, the final Trademark Office determined that the trademark was highly publicized for publicity and use, with the distinctiveness required by the trademark, the trademark was finally approved.

Therefore, in the event of a disapproval of the trademark application, it should not be immediately “abandoned”. Extensive use of evidence, large amounts of advertising, and professional agents’ extensive review experience will greatly increase the probability of successful registration.

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