Trademarks rejected for "lack of distinctiveness" Jul 2018 |
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.
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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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