Filing such a mark is possible - distinctiveness is the real gate

China's register is open to marks that are neither words nor pictures. A three-dimensional sign, a colour combination and a sound may all be filed, by domestic and foreign applicants alike. Yet relatively few of them reach registration, and the obstacle is rarely the paperwork. It is distinctiveness.

In December 2023 the China National Intellectual Property Administration (CNIPA) published its Guidance on the Distinctiveness of Non-Traditional Trademarks, which sets out, category by category, when a three-dimensional sign, a colour combination or a sound is treated as capable of distinguishing one trader's goods or services from another's, and when it is not. It is written for business entities and is concrete: each situation comes with a worked example. What follows is drawn from its text.

What the three categories are, and what each filing must contain

A three-dimensional mark is a sign with a physical form. It may consist of the shape alone, or of a shape combined with two-dimensional elements. In practice it appears as the shape of the goods themselves, the shape of their packaging or container, or some other three-dimensional form. Because the sign is three-dimensional, the office can easily read it as part of the goods, as the goods themselves, or as their packaging - the root of the difficulty described below. An application of this kind must declare the mark as three-dimensional, describe how it is used, and supply a representation that fixes the shape; the representation must show at least three views.

A colour combination mark is made up of two or more colours arranged in a particular way. Its protection is limited to the colour combination as used; it does not extend to any shape, and any shape in the drawing falls outside the scope of protection. It may be applied to the goods, their packaging, or the carrier used for a service. A single colour cannot be registered in China at present. The drawing must be a clear colour drawing - either colour blocks showing the combination, or a contour showing where the colours are placed. Where a contour is used it is not an element of the mark and must be drawn as a dotted line. The manner of use must be explained in the mark description.

A sound mark is made of sound itself, whether musical, non-musical (a sound from nature, a person or an animal), or a mixture of both. It functions through hearing and depends on a playback medium. Filing requires a compliant sound sample, a description of the mark within the representation, and an explanation of how the sound is used. The description and the sample must agree.

Why the distinctiveness hurdle is higher for these marks

Distinctiveness turns on whether the relevant public will take the sign as an indication of origin. For a conventional word or device mark that question is usually answered by the sign itself. For the three categories above, the office starts from the opposite assumption.

A three-dimensional sign placed on goods is naturally read as the shape of the thing, its packaging or its decoration. A colour combination is naturally read as the get-up of a product or the carrier of a service. A sound is naturally read as a noise the product makes, as background music, or as an advertising jingle. In each case the sign is perceived as something other than a badge of origin - and a novel sign is not automatically distinctive for being novel: a sound created by, or first used by, the applicant does not by itself become a distinctive mark, and the Guidance says the same of a colour combination.

Assessment is comprehensive, and the Guidance lists the factors weighed: the composition of the mark, the goods or services designated, the perception habits of the relevant public, practice in the trade, the elements of the sign, its visual effect and its manner of use. For colour combinations and sounds it adds the combination's intrinsic properties or the sound's auditory perception, use in the same trade, advertising and its effect, and public awareness of the mark.

Situations the Guidance treats as lacking distinctiveness

Three-dimensional marks. A mark consisting only of the shape of the goods themselves is read as their appearance or ornament - the watch face used on clocks and watches. A mark consisting of part of the shape of the goods is read as a component: the yellow stitching around the edge of a boot's upper, drawn with the rest of the boot in dotted lines, is bright and distinctive but a necessary part of the footwear occupying a small proportion. A mark consisting only of the shape of packaging or a container is read as packaging form, such as a condiment container on condiments. A simple, ordinary or purely decorative shape is read as an ordinary motif; and the shape of a generic or commonly used article in a service trade is read as the content or form of the service itself - a rendering of a Ferris wheel for amusement-park services.

The sixth situation is a combination, and the one foreign applicants most need to understand. Where a non-distinctive three-dimensional shape is combined with distinctive two-dimensional elements, the mark is generally regarded as distinctive as a whole, but the applicant must proactively disclaim the exclusive right in the non-distinctive three-dimensional part. The disclaimer is noted in the trademark gazette and on the registration certificate, and rights cannot be claimed in the part alone. If the two-dimensional element is too small a proportion, or sits where it will not be noticed, or if the whole is easily read as packaging get-up or decoration, the mark as a whole lacks distinctiveness. The example is a pen body carrying the words MONTBLANC and MEISTERSTUCK with a star and a ring device, in proportions small enough to be overlooked on a fountain pen.

Colour combination marks. A combination that amounts to the natural colour of the goods, a combination commonly seen on those goods, a common form of packaging, or the usual colours of the place where a service is provided, is read as a presentation of the goods or service rather than as an origin marker. The example is a combination commonly used on electric grinding machines.

Sound marks. A sound that directly describes the content, consumer, quality, function, use or other features of the goods or services is read as description: piano playing for musical instruments, children's laughter for infant formula, classical music for arranging concerts, a dog's bark for pet-keeping services, or the call "the water is boiling" for electric kettles. A sound that normally arises in using the goods or providing the service is overlooked as ordinary - the pop of opening a bottle for wine, the rustle of a note counter for banking services. Music usual in the trade, such as the wedding march for wedding-planning services, is read as background sound, and a sound too simple or too complex as an ordinary effect or tune. A phrase sung, read or called out in an ordinary tone or a simple melody is read as an advertising expression, and the distinctive timbre of a particular individual does not by itself change that.

Acquired distinctiveness, and what the evidence must show

A sign that is not inherently distinctive may still acquire distinctiveness through long and extensive use, once that use has made it capable of distinguishing origin. For a three-dimensional mark, a colour combination or a sound, the applicant must submit sufficient evidence of actual use, and of the stable association built between the mark and the particular goods or services. That evidence is filed either with the application or in the reply to an examination opinion.

Frequently asked questions

Which non-traditional marks can be registered in China?

Three kinds: three-dimensional marks, colour combination marks and sound marks. A single colour cannot be registered at present, and the Guidance deals only with the three categories above. Filings may be made by foreign applicants, in the same way as for conventional marks.

How many views must a three-dimensional mark drawing contain?

The representation must be capable of fixing the three-dimensional shape, and it must contain at least three views. The views must relate to the same mark. The application must also declare the mark as three-dimensional and describe the manner in which it is used. Incomplete or non-matching views are among the formal defects that are raised on examination.

Does a novel or original shape or sound count as distinctive?

No. Novelty is not the test. The Guidance states that a sound created by, or first used by, the applicant does not by itself possess the distinctiveness a mark requires, and it says the same of a colour combination. Distinctiveness is judged by whether the relevant public treats the sign as an indication of origin.

What happens to a distinctive logo combined with a non-distinctive shape?

The mark is generally treated as distinctive as a whole, but the applicant must proactively disclaim the exclusive right in the non-distinctive three-dimensional part. The disclaimer appears in the gazette and on the registration certificate, and rights cannot be asserted in that part alone. Where the two-dimensional element is too small or too hard to notice, the mark as a whole lacks distinctiveness.

Official sources

Related reading

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