Class 35 in China: A Mark for Other People's Business

Why a Class 35 registration often does not do what its owner expects

A company files in Class 35 because it has been told the class is the one to hold "just in case" — for a shopfront, a website, an online store, a franchise. Years later the registration turns out not to stop a competitor, and a sign carrying its own mark is treated as use in some other service altogether. CNIPA's guidance on Class 35 service marks addresses both halves of that problem: what the class actually covers, and how a registration inside it is properly used and defended.

The test that decides everything: performed for someone else

Class 35 covers services relating to the management, operation, organisation and administration of commercial or industrial undertakings, together with advertising, marketing and sales promotion. The classification also states plainly that the sale of goods is not a service.

The defining feature is the direction of the service. Class 35 services exist to help somebody else's business — another undertaking's commercial operations, or its business functions — or to advertise to the public on another party's behalf. Work a company performs for its own business needs sits outside the class, however commercial or managerial it looks.

That leads to a conclusion many manufacturers find surprising: a producer that only makes and sells its own goods, and does not provide advertising or business management assistance to other market participants, does not provide a Class 35 service merely by selling its own goods. Assess any separate services actually offered and relevant platform requirements. The class is not a general-purpose "business" class.

Where each group draws its line

The guidance works through eleven groups. For each, it states what is covered, what is excluded, and who the typical provider is.

Advertising. Advertising other people's goods or services: placing, creating, planning, producing and disseminating. Excluded: advertising your own goods directly, or paying a third party to advertise them for you. While promoting its own products, a company uses the mark it already trades under.

Business management assistance. Consulting, research, management, evaluation, data analysis, market and consumer research — for other businesses. A company's own internal management, analysis and surveys fall outside.

Franchising. Only the commercial management side: four items covering assistance, consulting, business affairs and management of somebody else's franchise operation. The franchisor's own franchising activity — licensing a registered mark, business format or know-how to franchisees under contract — is not a Class 35 service.

Import and export agency. Handling import and export matters for others. Trading in your own goods, or clearing your own shipments, is not covered.

Sales promotion for others. Advice, planning and consulting that helps another party raise sales of its goods or services. Selling your own goods at retail or wholesale is outside, and so is reselling another brand's products at a margin — that is retail, not promotion for others. Where a sale is accompanied by genuine advertising, display or promotional services, a registration may be sought in those specific services.

Online marketplaces. Providing a platform on which sellers gather and buyers choose. Running your own online shop to sell goods is a different activity.

Personnel, office functions and accounting. Recruitment, HR management, copying, document management, shorthand, bookkeeping, audit and tax planning — all performed for others. Internal HR, internal filing and a company's own tax planning, even where outside advisers are engaged, are not.

Sponsorship finding. Locating sponsors for others. Finding sponsors for your own activities, or granting sponsorship, is outside.

Retail and wholesale of pharmaceuticals and medical supplies. Goods that may only be traded with state approval and qualification are gathered and classified, transport aside, so that customers can see and buy them. The service covers that convenience function, not the medicines themselves.

What two decisions say about shopfronts and apps

The guidance illustrates the boundary with two cases.

In the Caidiexuan dispute, two bakery businesses had traded under the same name for more than ten years, one in Guangdong and one in Anhui. The Zhongshan business sued the Anhui business over use of the marks on packaging and shopfronts. The Anhui business argued that its shopfront use was use of its own Class 35 registration for sales promotion for others. The Supreme People's Court held that Class 35 exists to assist the operation or management of commercial enterprises, and does not extend to an enterprise whose main function is selling goods. A shopfront sign identifying a shop that sells its own cakes is direct use in bakery services; the business serves nobody else. The registration therefore did not describe the use.

In the Didi dispute, the claimant held registrations for the marks in other classes and one in Class 35, and objected to a ride-hailing platform displaying the mark on its passenger and driver interfaces. The court found that the acts relied on were either business methods adopted for the characteristics of that industry or ordinary management of the defendant's own operations. Any company's activity may carry commercial and managerial attributes; treating those attributes as the measure of the class would defeat the purpose of the classification. Service method, object and content were distinct.

Both decisions point the same way. Holding the registration does not convert an own-business use into a Class 35 use, and a Class 35 owner cannot stop others merely because their services are commercial or managerial in character.

Evidence that survives a non-use challenge

Services are intangible, which makes proof of use harder than for goods. The guidance lists what to keep:

Service contracts that name the mark, the registration number, the specific service items and the content of the service.
Invoices, payment records and acceptance certificates that correspond one-to-one with those contracts on mark, service, amount, content and date.
Evidence of advertising in broadcast, television, print, electronic media and online.
Consistent marking at the place of service — shopfront, signage, interior walls, service brochures, staff uniforms, menus, price lists, stationery — with design and production contracts and invoices that show the mark.
Where several marks in the same class carry different distinctive elements, use them separately and keep separate evidence for each.
Where the mark is the same as the company name, a ® symbol next to it helps distinguish use as a mark from use as a trading style.
Where force majeure, government policy restrictions or liquidation prevented use, the supporting evidence for that defence.

The final point carries weight because a registration unused for three consecutive years is exposed to cancellation at the instance of any party.

Frequently asked questions

Does a foreign manufacturer selling into China need Class 35?

Only if it provides the covered services to others. A producer that manufactures and sells its own goods, without advertising or management services for other businesses, does not need the class solely on that basis; assess any separately supplied services and current platform requirements. Distribution arrangements are assessed on their own facts.

Is an online store a Class 35 service?

Not on its own. Providing a marketplace where other sellers gather and buyers select is a Class 35 service; opening an online shop to sell goods is not. Selling another brand's products at a margin is retail.

Can a shopfront sign support a Class 35 registration?

A sign identifying a shop that sells its own goods is use in the shop's own service, not in sales promotion for others. The Caidiexuan decision turned on exactly that point. Signage used while serving other businesses is a different matter.

What happens if a Class 35 mark is never used?

After three consecutive years without use, any party may seek cancellation. Services leave fewer physical traces than goods, so contracts, invoices and premises evidence kept contemporaneously are what carry such a case — and what defend against it.

Official sources

关于第35类服务商标申请注册与使用的指引 (Guidance on Class 35 service marks) — China National Intellectual Property Administration, 7 December 2022.
关于发布《商标审查审理指南》的公告 (Trademark Examination and Review Guidelines) — China National Intellectual Property Administration, 22 November 2021.