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Trademark Distinctiveness

TermPublished 2026-09-17 · Updated 2026-09-17

Trademark distinctiveness is the characteristic by which a sign can distinguish the source of goods or services; it is the substantive condition for registration and is divided into inherent distinctiveness and acquired distinctiveness.

Trademark distinctiveness (also called distinctive character) refers to the characteristic of a sign that enables the relevant public to distinguish the source of goods or services. Distinctiveness is the soul of the trademark concept and the core substantive condition for registration. Article 9 of the Trademark Law provides that a trademark applied for registration shall have distinctive character and be capable of identification; Article 11 lists the specific circumstances in which signs lacking distinctive character may not be registered.

Legal Basis

  • Article 9 of the Trademark Law: a trademark applied for registration shall have distinctive character, be capable of identification, and not conflict with the lawful rights previously acquired by others.
  • Article 11 of the Trademark Law: the following signs may not be registered as trademarks — those consisting solely of the generic name, device, or model number of the goods; those merely and directly indicating the quality, main raw materials, function, use, weight, quantity, or other features of the goods; and other signs lacking distinctive character. However, signs listed above that have acquired distinctive character through use and are capable of identification may be registered as trademarks.

The Spectrum of Distinctiveness Strength

According to the degree of association between the sign and the goods, distinctiveness forms five tiers from strong to weak:

  1. Fanciful (coined) marks: self-created meaningless words, such as Haier, Huawei, and Sony — unrelated to the goods, with the strongest distinctiveness and the broadest scope of protection.
  2. Arbitrary marks: existing words unrelated to the goods, such as Apple for mobile phones and Great Wall for automobiles — strong distinctiveness.
  3. Suggestive marks: indirectly suggesting product features without direct description, requiring consumers to make a mental link — such as Rejoice for shampoo and Safeguard-style naming for daily chemicals — medium distinctiveness.
  4. Descriptive marks: directly describing the quality, materials, function, or other features of the goods — no inherent distinctiveness; registrable only after acquiring secondary meaning through use.
  5. Generic names: the common designation of goods or services, belonging to the public domain — absolutely not registrable; a registered trademark may even be cancelled if it degenerates into a generic name.

Acquired Distinctiveness (Secondary Meaning)

A sign originally lacking inherent distinctiveness acquires distinctive character — and thus registrability — when long-term, extensive, and continuous use causes the relevant public to associate it stably with a specific undertaking.

  • Typical examples: Liangmianzhen (originally the name of a medicinal raw material) acquired distinctiveness on toothpaste through use; Wuliangye also overcame distinctiveness disputes and obtained registration on the basis of use.
  • Evidentiary requirements: duration of use, sales territory, sales volume, advertising spend, market share, and public-awareness survey reports — the evidence must form a complete chain, and the burden of proof is considerable.

How Distinctiveness Is Judged

Key points in examination practice:

  • The relevant public as the judging subject: judged by the general perception of consumers and traders of the relevant goods or services, not by an expert's perspective.
  • Judged in connection with the designated goods: distinctiveness is a relative concept; the same sign may yield opposite conclusions on different goods — "apple" is generic for fruit but highly distinctive for electronics.
  • Overall assessment: a combined mark is assessed for its overall effect, but where the whole contains a part lacking distinctiveness, that part is unprotected or a disclaimer of exclusive rights may be required.
  • Dynamic change: distinctiveness can be acquired after the fact — and can also be lost. Where a trademark is used as the generic name of goods and loses its distinctive character, anyone may apply for its cancellation (trademark genericide).

Common Circumstances Lacking Distinctiveness

  1. Overly simple lines, ordinary geometric figures, single letters or numerals.
  2. Advertising slogans and felicitous phrases in ordinary form, such as "Integrity Under Heaven" and "Wishing You Prosperity."
  3. Signs consisting solely of manufacturing processes or common trade expressions.
  4. Signs so complex that the public cannot identify them (such as a complete product ingredient list).

Practical Significance

  • Naming: prefer coined or arbitrary words to guarantee inherent distinctiveness at the source.
  • Use: for strongly descriptive signs, take care to preserve use evidence in preparation for an acquired-distinctiveness claim.
  • Maintenance: prevent genericide — marking ® in use, not using the trademark as a product name, and promptly stopping others' genericizing use are the daily work of keeping distinctiveness alive.

How these concepts apply in specific cases may vary in detail; you may consult a CNIPA-recorded trademark agent on MyTMBee for case-specific analysis.