Trademark distinctiveness (distinctive character) refers to the characteristic by which a trademark enables the relevant public to distinguish the source of goods or services. It is the substantive condition for registration: signs lacking distinctiveness may not be registered under Article 11 of the Trademark Law, but those that have acquired distinctive character through use and are capable of identification may be registered.
Two Levels of Distinctiveness
- Inherent distinctiveness: the sign is naturally capable of distinguishing. Ranked from strongest to weakest:
- Fanciful (coined) marks: self-created meaningless words, such as Haier and Sony — the strongest distinctiveness.
- Arbitrary marks: existing words unrelated to the goods, such as Apple for mobile phones.
- Suggestive marks: indirectly suggesting product features, such as Rejoice for shampoo.
- Descriptive marks: directly describing product features — in principle, no inherent distinctiveness.
- Generic names: absolutely not registrable.
- Acquired distinctiveness (secondary meaning): a descriptive sign originally lacking distinctiveness acquires registrability when, through long-term and extensive use, the relevant public comes to associate it stably with a specific undertaking. Marks such as Liangmianzhen and Wuliangye were granted registration through this path in their early days.
Criteria in Examination
- Judged by the general attention of the relevant public, in connection with the designated goods or services.
- A sign lacking distinctiveness on goods A may possess it on goods B: "apple" is generic for fruit but highly distinctive for mobile phones.
- Overly simple devices, single letters, and ordinary advertising slogans are usually found to lack distinctive character.
Practical Significance
- At the naming stage, choosing coined or arbitrary words avoids distinctiveness rejections at the source.
- Upon receiving a rejection for lack of distinctiveness, assess whether use evidence supports a review, or decisively change the mark and refile.
- Proving acquired distinctiveness is costly and slow; it should not be the primary strategy, and is suitable only for signs already used extensively enough to have formed market recognition.
In similar situations, it is advisable to first consult a CNIPA-recorded trademark agent on MyTMBee to assess whether a trademark registrability assessment is needed before deciding on the next step.