The Trademark Law of China was last amended in 2019. By looking back at the original trademark law issued in 2001, we can track some of the trends and changing priorities in Intellectual Property protection in China.
Specifically, we will review Article 11 of 2019 Trademark Law as compared to the corresponding provision of the original 2001 law. The differences in these two provisions help to demonstrate evolving understanding of the concept of trademark distinctiveness as recognized under the law.
Article 11 of the Trademark Law currently reads as follows:
The following marks may not be registered as trademarks:
(1) Those having only the generic name, design or model of the commodity;
(2) Those directly indicating the quality, main raw materials, functions, uses, weight, quantity or other characteristics of the commodities;
(3) Other items lacking distinctive features.
The marks listed in the preceding paragraphs
(1) and (2) may be registered as trademarks if they have acquired distinctive features through use and are easy to be identified.
To judge the distinctiveness of a trademark, we must consider the symbol used in conjunction with the goods or services for sale. First, we must judge the uniqueness of the symbol itself. Secondly, we must determine whether the symbol serves to distinguish the goods or services it represents from other comparable products on the market. With this approach, the distinctiveness of a trademark is not determined by evaluating the uniqueness of the word or the symbol itself in the abstract, but that the mark may be easily and effectively used to identify the specific goods and services the mark intends to identify verses other similar goods on the market.
Thus, we can trace the evolution in Chinese trademark law from the 2001 version, which focused on the distinctiveness of a trademark as a symbol, compared to the 2019 version, which focuses on distinctiveness of the trademark as used by consumers to identify a specific product in the marketplace.