Article 11, on the other hand, prohibits the registration (but not the use) of trademarks that lack distinctiveness and cannot serve the source-identifying function of trademarks. Generally speaking if the word portion of a composite trademark lacks distinctiveness, then the trademark as a whole will be deemed non-distinctive unless the word part is only an insignificant part of the trademark.<\/p>\n\n\n\n
Recent Changes in Practice<\/h2>\n\n\n\n
As mentioned above, CNIPA, both at the TMO and the TRAD level, has become increasingly strict in its examination of trademark applications for registrability issues. Even the courts are increasingly unwilling to overturn TMO refusals based on absolute grounds.<\/p>\n\n\n\n
The following types of trademarks have been particular victims of tightened examination standards:<\/p>\n\n\n\n
Suggestive Trademarks<\/h3>\n\n\n\n
From a commercial perspective, a \u201cgood\u201d trademark generally reflects or infers some characteristics of the goods\/services, making it easy for consumers to associate the mark with the goods\/services. At the same time, it should also be sufficiently distinctive to distinguish the mark from other trademarks. Suggestive trademarks strike a balance between those two considerations.<\/p>\n\n\n\n
Examples of previously acceptable suggestive trademarks include \u201cSafeguard\u201d for soap, \u201cBang Bao Shi (\u5e2e\u5b9d\u9002), the Chinese mark for \u201cPampers\u201d, which literally means \u201chelp \/ children \/ comfortable\u201d, and \u201cTai Zi\u201d (\u6c70\u6e0d), the Chinese mark for \u201cTide\u201d, which literally means \u201celiminating stains\u201d.<\/p>\n\n\n\n
Recently, however, the TMO has been increasingly reluctant to allow suggestive trademarks to be registered in China, holding them to be either descriptive (and therefore lacking distinctiveness) or deceptive (depending on whether the characteristics of the relevant goods\/services might possibly be deemed inconsistent with the words appearing in the mark).<\/p>\n\n\n\n
The following marks are some notable examples of creative suggestive marks that have recently been refused in China:<\/p>\n\n\n\n There is also now a clear risk that any mark containing a product name, colour or any other characteristics of the goods\/services, or that contains advertising or promotional words etc., even loosely related to the goods\/services, could be refused regardless of whether there are other distinctive elements contained in the trademark or whether the words are at most indirectly related to the designated goods\/services. Below are a few more notable examples of recent refusals for marks that would almost undoubtedly have made it through examination in China in the past:<\/p>\n\n\n\n The TMO has also become more likely to refuse trademark applications on the blanket assertion that the marks might be deemed to have \u201cunhealthy social effects\u201d. Here are a few examples:<\/p>\n\n\n\n Notably, the TMO is believed to have an internal blacklist of words and characters that are blanketly prohibited from registration. This list has not been made public, but from past experience, it is almost certain that at least the characters \u201cGuo\u201d (\u201cnational\u201d or \u201cnation\u201d in Chinese), \u201cHua\u201d (\u201cChina\u201d or \u201cChinese\u201d in Chinese) and the Chinese characters for \u201ccenter\/middle\u201d\u201d are on the list.<\/p>\n\n\n\n Meanwhile, uncommon meanings and homonyms may also be taken into consideration by the TMO. This often results in rejections where the TMO decides there are undesirable connotations to be drawn, even where such connections are exceedingly tenuous, if not wholly illusory or opaque. Here are a few such examples:<\/p>\n\n\n\n Positively, and in some rare cases, refusals based on the grounds of \u201cunhealthy social effects\u201d have been overcome on appeal to the courts. Here are a few limited examples of successful appeals at the court level.<\/p>\n\n\n\n Notably, successful appeals of refusals against misleading\/deceptiveness grounds have been extremely rare at all stages.<\/p>\n\n\n\n Legally speaking, marks that are rejected due to non-distinctiveness pursuant to Article 11 can still be used as unregistered trademarks. They might also eventually be approvable for registration on the basis of acquired distinctiveness. That said, the standard for claiming acquired distinctiveness in China is extremely high. To meet that standard, an applicant needs to provide a large volume of evidence to prove its use of the mark over a long period of time across China to the extent that a direct correlation has been developed between the mark and the applicant in the minds of the public. A notable case where acquired distinctiveness was successfully claimed is in relation to the US cosmetics brand \u201cFRESH\u201d. The applicant, Fresh, Inc. submitted voluminous evidence relating to sales of its products in cities throughout China, as well as advertisements in magazines, etc., in Chinese publications, thereby successfully proving the widespread and long-term use and promotion of its products in China.<\/p>\n\n\n\n That said, while the owner\/user of the unregistered mark is working to generate sufficient reputation through use, possible infringement risks must always be kept in mind. This not only includes risks from similar registered marks. There is also the possibility that identical pirate marks may slip through to registration, despite the prior absolute refusal of the true owner\u2019s original application. This is not uncommon in China, where the standard of examination can vary wildly from application to application \u2013 even in applications for identical marks. This is due to the CNIPA\u2019s \u201ccase-by-case\u201d rule, which permits examiners to ignore contrary decisions or outcomes in highly similar cases, permitting them to decide individual cases in a de facto<\/em> vacuum.<\/p>\n\n\n\n Unlike Article 11, Article 10 prohibits not only the registration, but also the use<\/em> of trade marks falls under its ambit. Indeed, any use of such marks could result in administrative fines of up to 20 percent of the turnover generated by the mark in question.<\/p>\n\n\n\n Historically, authorities have not been overly proactive in policing the market for use of such marks. Ominously, however, in May 2023, CNIPA released its two-year work plan, which specifically noted that at some point in the near future, authorities will begin actively monitoring to see whether trademarks refused by CNIPA on Article 10 grounds are being actively used in the market. This is especially the case for those marks deemed likely to be deceptive and those creating \u201cunhealthy social effects\u201d. Naturally, the risks in this regard will undoubtedly be increased where in appealing the TMO\u2019s Article 10 refusal of their trademark, the trademark owner submits evidence of use in China to prove the fame of the mark in question.<\/p>\n\n\n\n Given the high stakes involved here, and in cases where there is a concrete fear that a given mark might somehow be vulnerable to an Article 10 rejection, strong consideration should be given to adopting alternative strategies for the mark and\/or the China market. For example, redesigning the mark altogether (e.g., adopting a Chinese brand specifically for China); filing the initial application in the name of an unrelated third party; avoiding trademark use (not framing it as a trademark in any way); and limiting its use as trade name or a slogan (if applicable) are all possible strategies.<\/p>\n\n\n\n Over the last three to five years, the CNIPA and the courts have taken a more active and aggressive approach to trademark piracy. As a result, pirates have begun to eschew their historically docile approach of merely defending their pirated portfolios and are now regularly adopting much more aggressive tactics. As a result, it is now common for trademark squatters to file retaliatory non-use actions, for example, against vulnerable trademark registrations held by their victims as a means of forcing a settlement.<\/p>\n\n\n\n With that in mind, there is also a real risk that CNIPA\u2019s stricter interpretation of registrability requirements may embolden trademark squatters and bad-faith actors to also begin filing retaliatory invalidation actions against rights-holders\u2019 existing trademark registrations, claiming those registrations are void ab initio<\/em> due to Article 10 and\/or 11 defects.<\/p>\n\n\n\n So far, it appears that the TRAD and the courts have been generally sympathetic to rights holders in such cases, dismissing the invalidation petitions and (eventually) maintaining the rights-holders\u2019 registrations. This is particularly the case where:<\/p>\n\n\n\n Two notable examples in this context are recent invalidation actions against the marks \u201cCELLFOOD\u201d (covering nutritional preparation in Class 5) and \u201cHEATSTICKS\u201d (covering electronic cigarettes in accessories in Class 34), filed by trademark squatters\/rival business operators. Both invalidation actions were based on absolute grounds. In both cases, the TRAD decided to maintain the registrations, holding that they were each coined words (despite the meanings of their individual components) and not generic names or a universal expression\/direct description of any characteristics of the respective designated goods. It also noted that the marks had achieved a certain degree of reputation via their continuous use and promotion. In the decision for \u201cCELLFOOD\u201d, the TRAD also specifically criticized the bad faith of the appellant, which had clearly maliciously filed the invalidation action in support of its own corresponding pirate applications for very similar marks.<\/p>\n\n\n\n In light of these risks, consideration should always be given to potential vulnerabilities in any company\u2019s portfolio, particularly when striking out hard against larger-scale pirates that are likely more desperate to see a return on their \u201cinvestment\u201d in their ill-gotten portfolios as the tide turns against them.<\/p>\n\n\n\n There have been a range of efforts from various channels campaigning for a change in CNIPA\u2019s examination practices relating to refusals on absolute grounds. Up till now, however, feedback received has not been positive. CNIPA\u2019s attitude appears to suggest that they are not considering any change in the short term. Given that, these issues must remain front of mind for businesses in China, particularly multinationals looking to extend offshore products and their trademarks into the China market \u2013 where those trademarks could eventually be deemed unregistrable, and perhaps even unusable \u2013 in China. This requires broader and deeper examination of possible Article 10 and 11 issues during the clearance process for new trademark applications in China.<\/p>","protected":false},"excerpt":{"rendered":" In 2023, CNIPA the parent organization of the Trademark Office (TMO) and Trademark Review and Adjudication Division (TRAD), tightened the standards for examination of new trademark applications, thereby resulting in a much higher number of rejections based on absolute grounds as well as a larger number of citations.<\/p>","protected":false},"author":4,"featured_media":1005,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":"[]"},"categories":[15,19],"tags":[91,90,42],"class_list":["post-3272","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-insights","category-trademark","tag-absolute-grounds","tag-rejections","tag-trademark-prosecution"],"acf":[],"_links":{"self":[{"href":"https:\/\/www.east-ip.com\/zh\/wp-json\/wp\/v2\/posts\/3272","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.east-ip.com\/zh\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.east-ip.com\/zh\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.east-ip.com\/zh\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/www.east-ip.com\/zh\/wp-json\/wp\/v2\/comments?post=3272"}],"version-history":[{"count":2,"href":"https:\/\/www.east-ip.com\/zh\/wp-json\/wp\/v2\/posts\/3272\/revisions"}],"predecessor-version":[{"id":3275,"href":"https:\/\/www.east-ip.com\/zh\/wp-json\/wp\/v2\/posts\/3272\/revisions\/3275"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.east-ip.com\/zh\/wp-json\/wp\/v2\/media\/1005"}],"wp:attachment":[{"href":"https:\/\/www.east-ip.com\/zh\/wp-json\/wp\/v2\/media?parent=3272"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.east-ip.com\/zh\/wp-json\/wp\/v2\/categories?post=3272"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.east-ip.com\/zh\/wp-json\/wp\/v2\/tags?post=3272"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}<\/th> Mark<\/th> Designated Goods<\/th> Ruling<\/th><\/tr><\/thead> 1.<\/td> EARUP<\/td> Physiotherapy apparatus, etc. in Class 10<\/td> Refused on the grounds of being misleading because it \u201csuggests the goods improve the performance of ears.\u201d<\/td><\/tr> 2.<\/td> \u591c\u5b89\u58eb \u201cYe An Shi\u201d in Chinese (Night \/ Comfortable \/ Scholar) <\/td> Nutritional products in Class 5<\/td> Refused as misleading because it \u201csuggests the goods could make people comfortable at night.\u201d<\/td><\/tr> 3.<\/td> \u5e72\u9738 \u201cGan Ba\u201d in Chinese (Dry \/ Overlords)<\/td> Desiccant, in Class 1<\/td> Refused as misleading because it \u201csuggests the goods have a strong effect.\u201d <\/td><\/tr> 4.<\/td> \u667a\u6cfd\u7ae5\u5eb7 \u201cZhi Ze Tong Kang\u201d in Chinese (Intelligence \/ Moist \/ Child \/ Health)<\/td> Medical instruments in Class 10<\/td> Refused as misleading because it \u201csuggests the goods are helpful for children\u2019s health.\u201d<\/td><\/tr> 5.<\/td> \u5eb7\u9f7f\u5bb6 \u201cKang Chi Jia\u201d
in Chinese (Healthy \/ Teeth House (or Family)<\/td>Toothpaste in Class 3<\/td> Refused as misleading because it \u201csuggests the goods\u2019 function of keeping teeth healthy.\u201d<\/td><\/tr><\/tbody><\/table><\/figure>\n\n\n\n <\/th> Mark<\/th> Designated Goods<\/th> Rulings<\/th><\/tr><\/thead> 1.<\/td> \u5317\u7eac\u56db\u5341\u4e03\u5ea6 \u201cBei Wei 47 Du\u201d in Chinese (47 Degrees \/ North Latitude)<\/td> Disinfectant; vitamin preparations, etc.<\/td> Refused because it is a location, even though this location has no direct connection to the goods.<\/td><\/tr> 2.<\/td> \u6930\u5b50\u77e5\u9053 \u201cYe Zi Zhi Dao\u201d in Chinese (Coconut \/ Knows)<\/td> Fruit jellies; canned fruit, etc.<\/td> Refused on the grounds that the goods may not necessarily contain coconut as a raw material and this would be liable to cause confusion if they do not.<\/td><\/tr> 3.<\/td> \u827e\u62d3\u6c2a \u201cAi Tuo Ke\u201d in Chinese (a herb \/ Develop \/ Krypton, a chemical element)<\/td> Hand tools, etc.<\/td> Refused on the grounds that the mark is liable to cause misidentification as to the raw materials of the products because it contains \u201cke\u201d, the name of the element \u201cKrypton\u201d, which is actually not directly related to the designated goods.<\/td><\/tr> 4.<\/td> \u4ed9\u5973\u676f \u201cXian Nv Bei\u201d in Chinese (Fairy \/ Cups)<\/td> Advertising, sales promotion for others, etc.<\/td> Refused because it contains \u201ccups\u201d which is the name for a goods item that has no direct relationship with the designated services.<\/td><\/tr><\/tbody><\/table><\/figure>\n\n\n\n Trademarks with \u201cUnhealthy Social Effects\u201d<\/h3>\n\n\n\n
<\/th> Mark<\/th> Designated Goods<\/th> Rulings<\/th><\/tr><\/thead> 1.<\/td> FALL GUYS<\/td> Toys in Class 28 and education, etc. in Class 41<\/td> Refused on the grounds that it can mean \u201cscapegoat\u201d, which is against the social moral values of integrity and friendliness.<\/td><\/tr> 2.<\/td> \u8fb9\u5883\u7ebf \u201cBian Jing Xian\u201d in Chinese (direct meaning \u201cborder line\u201d)<\/td> Kitchen utensils in Class 21<\/td> Refused because \u201cborder line\u201d has political connotations as a term related to national sovereignty, which could cause unhealthy social effect if it were put into commercial use.<\/td><\/tr> 3.<\/td> DAILY CLEAR-UP<\/td> Yogurt and milk in Class 30<\/td> Refused because this term was used in China during the COVID-19 pandemic.<\/td><\/tr> 4.<\/td> \u6843\u82b1\u8fd0 \u201cTao Hua Yun\u201d in Chinese (Peach \/ Blossom \/ Fortune)<\/td> Restaurants in Class 43<\/td> Refused because this mark refers to good fortune in romance and the TMO was of the view that this was inappropriately suggestive in respect of restaurant services.<\/td><\/tr> 5.<\/td> \u6076\u9b54\u89d2 \u201cE Mo Jiao\u201d in Chinese (Bad \/ Devil \/ Horn)<\/td> Wines in Class 33<\/td> Refused because the mark contains \u201cE Mo\u201d which means \u201cevil devil\u201d.<\/td><\/tr><\/tbody><\/table><\/figure>\n\n\n\n <\/th> Mark<\/th> Designated Goods<\/th> Rulings<\/th><\/tr><\/thead> 1.<\/td> \u6d6a \u201cLang\u201d in Chinese (Waves or Unrestrained)<\/td> Advertising, sales promotion in Class 35<\/td> Refused because the character can mean \u201cunrestrained\u201d or \u201cwild\u201d, although the character is most commonly used to mean \u201cwaves.\u201d <\/td><\/tr> 2.<\/td> GUNPLA<\/td> Stationery in Class 16<\/td> Refused because it could be split into \u201cGUN\u201d and \u201cPLA\u201d, the latter of which is the abbreviation of People\u2019s Liberation Army.<\/td><\/tr> 3.<\/td> NATUREZEN<\/td> Baby food, nutritional products, etc. in Class 5<\/td> Refused because it contains \u201cZEN\u201d, a religious term.<\/td><\/tr> 4.<\/td> \u946b\u7586 \u201cXin Jiang\u201d in Chinese (Prosperity \/ Boundary)<\/td> Electric cables, etc. in Class 9<\/td> Refused because it has the same romanization and pronunciation as Xinjiang Province.<\/td><\/tr> <\/td> <\/td> <\/td> <\/td><\/tr><\/tbody><\/table><\/figure>\n\n\n\n <\/th> Mark<\/th> Designated Goods<\/th> Rulings<\/th><\/tr><\/thead> 1.<\/td> Red Titan<\/td> Toys in Class 28<\/td> Refused by the CNIPA on the grounds that \u201cred titan\u201d was a term used to refer to \u201cformer Soviet Union\u201d. This refusal was overturned by the Beijing IP Court on the grounds that the meaning is no longer used nor publicly known. Notably, neither the TMO nor the TRAD explained the precise reasoning behind the rejection until the case reaches the court, leaving us to guess blindly as to why the mark had been rejectedl.<\/td><\/tr> 2.<\/td> Parsons<\/td> Ropes, wrapping or binding bands, not of metal, in Class 21<\/td> Refused by the CNIPA because \u201cparsons\u201d is a religious term in Christianity. The Beijing IP Court overturned the refusal on the grounds that when used with the applicant\u2019s Chinese mark \u201cPa Sen Si\u201d the mark would not be associated with the religious term. <\/td><\/tr> 3.<\/td> ORISMATIC<\/td> Sensors, etc. in Class 9<\/td> Refused by the CNIPA on the grounds that \u201cORISMATIC\u201d may refer to \u201cChristianity\u201d and its component \u201cMATIC\u201d has the meaning \u201cautomatic\u201d. The Beijing IP Court found nothing to support the view that the mark could refer to \u201cChristianity\u201d and overturned the rejection.<\/td><\/tr> 4.<\/td> ![\"\"](\"https:\/\/east-ip.com\/wp-content\/uploads\/2025\/04\/Monk.png\")
<\/td>Education, training etc. in Class 41<\/td> Refused by the CNIPA on the grounds that the mark contains an image of a monk and therefore has an unhealthy religious impact. The Beijing IP Court overturned the refusal holding it is dissimilar to an image of a monk.<\/td><\/tr><\/tbody><\/table><\/figure>\n\n\n\n Risks in Using Unregistered Marks<\/h2>\n\n\n\n
Marks Refused Based on Article 11 Due to Lack of Distinctiveness<\/h3>\n\n\n\n
Marks Refused Based on Article 10 Due to Marks Being Misleading or Deceptive<\/h3>\n\n\n\n
Impacts on Existing Registrations?<\/h2>\n\n\n\n
\n
Conclusion <\/h2>\n\n\n\n