In Chinese trademark law, distinctiveness is the quality that enables consumers to distinguish between various goods and services containing trademarks, thus allowing them to rely on the trademark’s design to identify the origin and qualities of these goods and services. A trademark can acquire distinctiveness either by being inherently distinctive or by gaining distinctiveness through use.
A trademark is considered distinctive in the context of all the factors present. This means that the trademark is considered as a whole. The only exception to this rule is for marks that have absolutely no distinctiveness, such those that only indicate quantity, raw material, function, weight, and other generic concepts. Therefore, a trademark with a few undistinctive elements can nonetheless still be considered distinctive overall.
As implied by how Chinese trademark law views trademarks as a whole and their use in context, a trademark can acquire distinctiveness if used long enough for the consuming public to recognize it. Therefore, examiners must consider the full context, including how the mark is used, even if the mark itself does not look distinctive.
For example, the international chain of Chinese restaurants “Little Sheep Mongolian Hot Pot” uses words that describe the tender and juicy raw material used in its dishes–implying young sheep cooked at a tender age in the Mandarin, not just physically small sheep. Despite this descriptive nature, the mark has nonetheless acquired distinctiveness in China.
The distinctiveness determination must be made in view of the associated goods and services. For instance, the Chinese cell phone brand “Xiaomi” literally means “millet” in Mandarin, and discussing distinctiveness outside of its context would be pointless. In the context of whole grain foods, a package of millet branded “The Millet” would not be distinctive, but a cell phone named “The Millet,” would be distinctive, and this is the basis for Xiaomi’s marks in China.
The above examples demonstrate how Chinese trademark law is actually extremely inflexible and allows the registration of a mark as long as it enables consumers to accurately identify the source of the goods or services. The Xiaomi trademark highlights the importance of choosing culturally appropriate trademark names. In English-speaking countries, a cell phone named “The Millet” would be just as absurd as a cell phone named “The Spicy Chicken Sandwich.” Xiaomi tried to avoid this by using Romanized names, which many consumers don’t know how to pronounce. Learning from this mistake, car company “Xiaopeng” chose the brand name “X-Peng.” Failure to get expert help will likely cost Xiaomi millions in brand equity. Nevertheless, the Xiaomi brand is very popular in China, where it was branded well. This illustrates the principles that using generic words in the name is not a barrier to registration under Chinese trademark law, provided that the applicant can produce a recognizable product.
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