Descriptive Signs

A descriptive sign is one that merely directly indicates the quality, main raw materials, function, intended purpose, weight, quantity, or other characteristics of goods. Under Article 11(1)(ii) of the Trademark Law, such signs may not be registered as trademarks; but under Article 11(2), signs that have acquired distinctive features through use and are easy to identify may be registered as trademarks.

The Two Most Critical Words in the Provision: "Merely" and "Directly"

• "Merely": the sign consists entirely of descriptive content. If the sign contains elements with distinctive features (such as a coined word or a device) in addition to the descriptive element, the whole may possess distinctiveness; in that case, a disclaimer of exclusive rights in the descriptive part is usually required;
• "Directly": the relevant public can read the characteristics of the goods from the sign at a glance, without association, reasoning, or analysis. Where more than one step of association is needed to establish the connection, the sign is suggestive and registrable.

Combined, the two words draw the boundary between descriptive signs and suggestive signs: if the first reaction on seeing the sign is "a characteristic of the goods," it is descriptive; if the first reaction is "a brand," and the connection to the characteristic only comes after a turn, it is suggestive.

The Assessor and the Method of Assessment

• The standard is the ordinary cognition of the relevant public (consumers and operators of the goods or services in question);
• The assessment must be made in conjunction with the designated goods or services—whether a word is descriptive cannot be judged apart from the goods;
• Reference should be made to customary expressions in the industry for that type of goods, wording in national and industry standards, and common usage among operators in the same trade;
• The sign should be observed as a whole, based on the complete impression it presents to the public, without isolated dissection.

Common Types

• Quality: expressions directly describing quality grades or superiority;
• Main raw materials: directly writing out the names of ingredients or materials;
• Function and intended purpose: directly stating what the product does or where it is used;
• Weight, quantity, specifications: directly marking gram weight, capacity, or piece count;
• Other characteristics: origin, craftsmanship, style, target users, price positioning, and so on.

The above is only a typology; whether a specific sign is descriptive must be judged case by case in conjunction with the designated goods.

Distinction from Neighboring Concepts

• From generic names: Article 11(1)(i) regulates signs "consisting solely of the generic name, device, or model of the goods," while item (ii) regulates signs directly indicating characteristics of the goods. A generic name answers "what is this product called," while a descriptive sign answers "what are this product's characteristics"; the two can coexist;
• From suggestive signs: suggestive signs do not directly describe; they require association and possess the minimum inherent distinctiveness, so they can be registered;
• From deceptive signs: if the statement does not match the actual condition of the goods, Article 10(1)(7) may be implicated, whose consequences are more serious than a lack of distinctiveness—not "cannot be registered," but "may not be used";
• From advertising slogans: ordinary advertising language lacks distinctiveness; if it directly points to characteristics of the goods, it likewise falls within item (ii).

Remedial Paths and Practical Points

Available Remedial Paths

1. Combined registration: add an original device or a coined word beyond the descriptive text, apply for the whole, and disclaim exclusive rights in the descriptive part;
2. Change the sign: redesign a name not directly associated with the characteristics of the goods—the lowest-cost and most reliable option;
3. Prove acquired distinctiveness: demonstrate with a chain of evidence of long-term, extensive, and continuous use that the relevant public has come to associate the descriptive expression with the applicant;
4. Fallback defense: where confirmation of rights is difficult, protection may be sought for a product name, packaging, or trade dress with a certain influence under Article 6 of the Anti-Unfair Competition Law, though the threshold is not low.

Practical Points

At the naming stage, run a "first reaction test": show candidate names to colleagues or customers and ask for their first reaction. If the answer is a characteristic or selling point of the product rather than a brand name, change it. For brand names already in use that lean descriptive, present the word-and-device combination as a whole in promotion, and archive use evidence in parallel, preparing material for a future distinctiveness claim.

The practical judgment behind these concepts must be tailored to the individual case; before proceeding, you may book a registered agent via MyTMBee for targeted analysis.