A trademark is a sign that distinguishes the goods or services of one undertaking from those of other undertakings. Under Article 8 of the Trademark Law, words, devices, letters, numerals, three-dimensional signs, color combinations, sounds, and combinations of these elements may all be applied for registration as trademarks. A trademark is an important component of intellectual property and the legal vehicle of an enterprise's brand assets.
Legal Definition
Article 8 of the Trademark Law provides that any sign capable of distinguishing the goods of a natural person, legal person, or other organization from those of others — including words, devices, letters, numerals, three-dimensional signs, color combinations, and sounds, as well as combinations of these elements — may be applied for registration as a trademark.
This definition embodies three fundamental attributes of a trademark:
- Identifiability: the primary function of a trademark is to distinguish origin, enabling consumers to identify which undertaking the goods or services come from.
- Dependency: a trademark must be used in association with goods or services; a sign detached from specific goods or services is not a trademark in the legal sense.
- Competitiveness: a trademark embodies the commercial goodwill of its owner and serves as an instrument of market competition.
Types of Trademarks
By Constituent Elements
- Word mark: composed purely of words; easy to pronounce and disseminate; the most basic form of trademark.
- Device (figurative) mark: composed of patterns or symbols, with strong visual recognition.
- Letter marks and numeral marks: composed of foreign letters or Arabic numerals.
- Three-dimensional mark: the three-dimensional shape of goods or their packaging.
- Color combination mark: a specific combination of two or more colors.
- Sound mark: a distinctive sound or melody.
- Combined mark: a combination of the above elements — the most common form in practice.
By Object of Use
- Goods mark: a trademark used on goods, corresponding to Classes 1–34 of the Nice Classification.
- Service mark: a trademark used on services, corresponding to Classes 35–45.
By Function and Owner
- Collective mark: registered in the name of an association or other organization for use by its members to indicate their membership.
- Certification mark: controlled by an organization capable of supervision and used by parties outside the organization to certify the specific quality of goods or services.
Acquisition of Trademark Rights
China follows the principle of acquisition through registration:
- The exclusive right to use a trademark is acquired upon application, examination, preliminary approval and publication, and final approval of registration. The right is valid for ten years and may be renewed indefinitely.
- Where two or more applicants apply to register identical or similar trademarks on the same kind of goods, the trademark filed first is preliminarily approved and published (the first-to-file principle).
- Unregistered trademarks also receive a degree of protection: the well-known trademark regime, the prior-use defense, and the Anti-Unfair Competition Law provide supplementary protection, but the level of protection is far weaker than that of a registered trademark.
Functions of a Trademark
- Identification: distinguishing the source of goods or services — the essential function of a trademark.
- Quality assurance: the same trademark signifies a stable expectation of quality.
- Advertising: a trademark is the core symbol of brand communication.
- Asset function: a trademark can be assigned, licensed, and pledged; it is a quantifiable intangible asset.
Distinguishing Related Concepts
A trademark differs from a logo (a design concept), a trade name (an identifier of a business entity), and a brand (a concept of market perception). A trademark is a legal right and the only way to obtain exclusive protection for these commercial signs. Undertakings should apply for registration as early as possible once the brand name is finalized, so that the commercial sign is converted into a legally protected trademark right.
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.