China: Q&A Re: Trademark Registration In China

Last Updated: 28 March 2017
Article by Watson & Band Law Offices

Can the name of a product be registered as a trademark?

The name of a product is not necessarily unacceptable for registration as a trademark. The issue of acceptability ultimately depends on the commercial use and maintenance of the trademark by the relevant entity.

  1. A completely generic product name cannot be registered as a trademark.

The generic names of a product that reflect the natural characteristics of the product may include both a legal name and a conventional name for the product. Since the generic name alone cannot distinguish the source of the product, it does not possess the minimum distinctiveness required for a registered trademark. As a result, Article 11.1.1 of the P.R.C. Trademark Law provides that a generic product name alone cannot be registered as a trademark. The rejection of the application for registering "BLUETOOTH" as a trademark is a perfect example of this prohibition.

  1. The generic name of a product that has acquired distinctiveness through long-term use can be registered as a trademark.

According to Article 11.2 of the Trademark Law provides that if the generic name of a product has acquired distinctiveness through long-term use, it can be registered as a trademark. Of course, extremely strict review standards are adopted in terms of the applicability of this provision to granting approval of a trademark registration application. Specifically, in addition to the requirement that the registrant has extensively used the trademark, it is also required that no other company within the same industry has extensively used the trademark, in which circumstance the "generic name" would have in fact been degraded. The approval of the registration of "状元红" on rice wine products was more or less influenced by this concept.

  1. The unique name of a product can be registered as a trademark.

A "unique product name" must possess sufficient distinctiveness to identify the source of the product. Such a definition is similar to the definition of a unique name (of a well-known product) as stipulated under the Anti-Unfair Competition Law. Because of its distinctiveness, a unique name can be registered as a trademark. The successful registration of "杏灵" on medicines containing ginkgo is an example of such a unique name.

  1. If a unique name is generalized into a generic name, the trademark may be declared invalid after it has already been registered.

According to Article 49 of the P.R.C. Trademark Law and the opinions of the Supreme People's Court on trademark granting and confirmation cases, the determination of a generic name should be subject to the state of affairs at the time of review and trial, rather than the state of affairs at the time of application. Consequently, if a unique name has been generalized into a generic name, the trademark may be declared invalid after it has already been registered. The revocation of "优盘" after it was approved for registration is an example for such a circumstance.

(Abstracted from: Can the Name of a Product be Registered as a Trademark? by Qing Hua)

How should the items of goods or services be filled in when filing the trademark registration applications?

Article 15.1 of the Implementing Regulations of the P.R.C. Trademark Law, implemented as of May 1st, 2014, explicitly provides that the items of goods or services should be included in a trademark registration application in accordance with the class numbers and names provided in the classification of goods and services. Where the relevant items of goods or services are not included in the classification of goods and services, a description of the goods or services must be attached and submitted.

Based on the foregoing provision, when filling in the items of goods or services for a trademark registration application, the standard goods or services provided in the latest annual Classification of Goods and Services published by the Trademark Office should be used in principle. If it is necessary to include any non-standard items, a description of such goods or services must also be submitted.

On the other hand, as per our practical experience, if the application for trademark registration includes a non-standard product or service, the Trademark Office will demand amendment even if the applicant submits the description. Since these non-standard goods or services usually cannot identify their corresponding standard items, the applicant will usually choose to delete these non-standard items. In such a case, not only will additional costs be incurred, but the review period for trademark registration will be prolonged as well.

Consequently, we would suggest that in order to avoid the amendment procedure, clients should try to save time and money by using standard items of goods or services under the Classification of Goods and Services.

(Abstracted from: CTMO's Stricter Review of Items of Goods or Services Declared at the Filing of Trademark Registration Applications, by Yuan Mei)

What is an application for registration of one trademark under several classes?

Registration of one trademark under several classes is a commonly adopted means for trademark registration applications in developed countries around the world as well as the Madrid international trademark registration system. The admission of registration of one trademark under several classes into Chinese trademark law system represents integration with international practices and is favorable for enterprises that are planning their future business operations. According the ideas communicated through mainstream channels, such registrations bring the following advantages from the perspective of public administration: (i) saving registration number resources; (ii) reducing the workload for review; (iii) facilitating analysis and classification of searches; (iv) benefiting the enhancement of a unified search standard; and (v) simplifying public administration.

What elements should be considered when determining whether to file a multi-class application?

Before exploring the answer to whether an application for registration of one trademark under several classes would be favorable for the applicant, the  following four issues must first be clarified: (i) Will it save money? (ii) Will it shorten the review period? (iii) Will it simplify the procedures for registration applications? (iv) Will it be convenient for management?

(Abstracted from: Misunderstanding and Truth about Applications for Registration of One Trademark under Several Classes, by Chenzi Chen)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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