What exactly is a trademark? A trademark is a symbol used to identify the source of goods or services. Any sign capable of distinguishing the goods or services of one natural person, legal person, or other organization from those of others, including words, graphics, letters, numerals, three-dimensional marks, color combinations, and sounds, as well as combinations thereof, can be registered as a trademark.
For a trademark to be registered, it must first possess distinctive features. Distinctiveness, or the distinctiveness of a trademark, is a prerequisite for obtaining trademark registration. Distinctiveness refers to the characteristic that a trademark should possess in order to enable the relevant public to distinguish the source of goods or services. Specifically, it means that a trademark should be recognizable and memorable to consumers, thereby serving the function of indicating the source of goods or services. Distinctiveness can be inherent or acquired through use. Inherent distinctiveness is inherent to the trademark itself, while acquired distinctiveness is obtained through continuous actual use of the trademark.
There are many trademarks with inherent distinctiveness, such as "华为" (Huawei) used on mobile phones.
This article mainly discusses how distinctiveness can be acquired through use. Trademark use refers to the act of using a trademark on goods, product packaging or containers, commercial documents, advertising, exhibitions, and other business activities to identify the source of goods. Whether a trademark has been used in a genuine, effective, and legal commercial manner requires evidence to prove it. So, what kind of evidence should trademark owners collect and submit to prove that a trademark, even if it lacks inherent distinctiveness, has acquired distinctiveness through use and can therefore be registered as a trademark?
Applicants should actively prepare evidence of the use and promotion of their trademarks on designated goods or services in mainland China to demonstrate that the applied-for trademark has been widely and extensively used and promoted, making it known to the relevant public. Consumers should be able to identify it as a trademark and distinguish it from other products, thereby fulfilling the basic function of a trademark, which is to distinguish the source of goods. In this way, the applied-for trademark can overcome the rejection reason of lack of distinctiveness. Taking the trademark "田七" (Tianqi) used on toothpaste, for example, it Initially rejected due to lack of inherent distinctiveness, the applicant provided extensive evidence to prove that the trademark had acquired distinctiveness through use, thereby fulfilling its function of distinguishing the source of goods and meeting the requirements for trademark registration.
So, what evidence can prove that a trademark has acquired distinctiveness through use? The following are examples of evidence provided in the Trademark Examination and Adjudication Guidelines to prove that a trademark has gained a certain level of recognition and influence among the relevant public:
- Relevant information about the earliest use or continuous use of the trademark.
- Contracts, invoices, delivery orders, bank receipts, import and export documents, e-commerce transaction documents, or transaction records related to the goods or services indicated by the trademark.
- Information on the sales area, sales volume, sales channels, methods, market share, etc., of the goods or services indicated by the trademark.
- Commercial advertisements published by the trademark user in media such as radio, film, television, newspapers, journals, the internet, outdoor advertising, as well as all comments, reports, and other promotional activities related to the trademark in the above-mentioned media.
- Information on the participation of goods or services indicated by the trademark in commercial activities such as exhibitions, expos, and auctions.
- Reputation information such as awards received by the trademark.
- Other evidence that can prove that the trademark has been used and has a certain influence.
Therefore, when a trademark is rejected for lacking distinctiveness, it is important to assess whether the trademark has been used, the extent and scope of its use, and whether evidence can prove that the trademark has acquired the distinctive features required for a trademark through use and promotion.
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.
