A trademark is a sign capable of distinguishing the goods of a natural person, legal person, or other organization from those of others. What the law protects is not the aesthetic appeal or creativity of the sign itself, but the correspondence between the sign and a particular business—when consumers see the sign, they know whose goods or services they are dealing with.
The Constituent Elements Defined by Article 8
Article 8 of the Trademark Law provides: 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 sound, as well as combinations of these elements—may be applied for registration as a trademark.
The key to this provision lies in the words "capable of distinguishing": whether an element can serve as a trademark turns on whether it can perform the function of distinguishing source, not on whether it is attractive or creative. Words, letters, and numerals therefore qualify; so do three-dimensional signs, color combinations, and sound. By contrast, a single color, a shape resulting from the nature of the goods themselves, or a shape necessary to obtain a technical effect usually cannot bear an identifying function and is therefore difficult to register.
The Three Functions of a Trademark
- Source identification: enables consumers to associate goods or services with a particular business—this is the trademark's core function;
- Quality carrier: a trademark is a vessel of the owner's goodwill; long-term use accumulates consumer trust in quality;
- Advertising: a trademark is the landing point of marketing investment; advertising effects ultimately crystallize into the trademark's reputation.
Source identification is the core of legal judgment. Any assessment unrelated to source identification (such as whether the sign is original or has obtained copyright registration) is not a plus under trademark law.
Distinction from Neighboring Commercial Signs
- Enterprise name (trade name): an enterprise name identifies the business entity and is protected within the jurisdiction of the registration authority and within its industry; this differs from the exclusivity obtained through approved trademark registration. Registering another's trademark as a trade name, or squatting another's trade name as a trademark, may constitute infringement or unfair competition;
- Product name and packaging/trade dress: a generic product name belongs to the public domain and is not exclusive to anyone; product names, packaging, and trade dress with a certain influence may be protected under Article 6 of the Anti-Unfair Competition Law, but the threshold differs from that for trademarks;
- Geographical indication: indicates that goods originate from a specific region; it may be registered as a collective mark or a certification mark and cannot be monopolized by a single business as an ordinary trademark;
- Copyright: an artistic work embodied in a device trademark may simultaneously enjoy copyright protection; the two differ in subject matter and duration, and ownership may be separated.
Legal Consequences of Registration and Non-Registration
China adopts a registration-based system. Under Article 3, a trademark approved for registration is a registered trademark, and the registrant enjoys the exclusive right to use it, protected by law; Article 4 requires applicants to apply for registration based on the needs of their production and business activities, and bad-faith trademark applications not intended for use shall be refused.
An unregistered trademark may be used, but it carries no exclusive right: it cannot exclude others from using identical or similar signs on identical or similar goods, and it may be preemptively registered by others, leaving its user accused of infringement and only able to invoke the prior-use defense under the third paragraph of Article 59—a passive and limited position.
Practical Points
At the naming stage, test candidates against the question "can it distinguish source," avoiding industry generic terms and directly descriptive words. Once the brand direction is set, file a registration application as soon as possible, grounding legal protection in approved registration rather than in factual states such as "I have used it for a long time."
The application of these concepts in practice varies in detail; before proceeding, you may consult a registered agent via MyTMBee for targeted analysis.