After a refusal for lack of distinctiveness (Article 11 of the Trademark Law), the law leaves an opening: a sign that has acquired distinctive character through use and is readily identifiable may be registered as a trademark. The core of the remedy is to use evidence of use to prove that your sign has acquired "secondary meaning".
First, Identify Which Type of Distinctiveness Deficiency Applies
- Merely directly indicating the characteristics of the goods (e.g., "Freshly Squeezed" for juice): remediable through use evidence;
- Generic names or model designations (industry-generic terms like "USB drive" type words): essentially irremediable — abandonment is recommended;
- Overly simple device elements or advertising slogans: depends on the intensity of use; relatively difficult.
How to Prepare Use Evidence
Effective use evidence must form a complete chain proving that the sign has been used over a long period, extensively, and continuously before the filing date:
- Sales evidence: sales contracts, invoices, shipping documents, and back-end sales data from e-commerce platforms, demonstrating duration and scale;
- Promotional evidence: advertising contracts, media coverage, trade fair materials, and online promotion records;
- Honors and rankings: industry awards, market share reports, and third-party survey data;
- Evidence of consumer perception: market survey reports (proving that the relevant public has formed an exclusive association between the sign and you).
Key evidentiary points: the timeline must cover several years before the filing date, the geographic coverage must be reasonably broad, and the evidence must show the sign used in its original form.
Alternative Options
- Trademark redesign: add original graphic or word elements to the existing sign to strengthen its overall distinctiveness, then refile;
- Rebrand and refile: if the period of use is short and the evidence weak, the probability of success at review is low — designing a new, distinctive trademark directly is more economical.
Practical Reminder
Distinctiveness reviews impose high demands on evidence quality; fragmentary evidence is almost useless. It is advisable to assess the completeness of the evidence chain before filing, to avoid losing both the official fee and time.
If you are unsure about the issues above, you may first obtain a refusal review assessment on MyTMBee and act after receiving an analysis from a registered trademark agent.