Foreign brand owners tend to treat containers as a purchasing decision — glass weight, closure type, label stock. In China the same container can become an enforcement question. A bottle that still carries your name in relief, refilled by someone else and put back on a shelf, produced a published guiding case, and the reasoning extends well beyond beer.

What the Weihai case involved

In March 2020 Qingdao Beer (Rongcheng) Co. complained to the Weihai market supervision bureau about a local company filling beer into recycled bottles. Qingdao Beer Co. holds registration No. 1304176 for 青岛啤酒 and registration No. 1351701 for TSINGTAO, both in Class 32 for beer, and its bottles carry both names as embossed lettering around the neck.

The company had for years bought back used bottles, as the trade does, and filled its own beer into them. Part of its 600ml stock was Qingdao Beer glassware. The paper labels were washed off, the company's own mark and cartons went on, and the lettering at the neck was left uncovered.

The bureau found that shoppers could mistake the source, or assume a specific connection with Qingdao Beer Co., and treated the conduct as infringement of the exclusive right to use a registered trademark — under the residual category covering other damage to that right, rather than the category for an identical mark on identical goods. The order was to stop immediately, with an administrative fine of RMB 30,000. No reconsideration request and no lawsuit followed. The case was later released, in March 2022, as Guiding Case No. 7 in the second batch of administrative enforcement guidance cases.

Why embossed lettering still does the work of a mark

The starting point is the definition of use: putting a mark on goods, on their packaging or containers, on trade documents, or using it in advertising, exhibitions and other business activity, in order to identify the source of the goods. The Trademark Infringement Determination Standards add a list of physical forms — direct affixing, engraving, branding, weaving — onto goods, packaging, containers, labels, tags, manuals, brochures and price lists.

Embossed glass falls inside that list twice over: it is engraving or branding, and the object is a container. Form and function point the same way. The lettering was not decorative; it was how the bottle announced whose beer it held.

The more useful part of the reasoning concerns what happens when the refiller adds its own label. The bureau accepted that shoppers might well identify the actual producer from the new label. It held that this did not exhaust the effect of the old one. A consumer who reads a new brand name on the body can still read 青岛啤酒 around the neck and conclude that the two companies are connected — licensed, invested in, cooperating. Two marks on one bottle can both be doing source work, and the second one is doing it without authorisation.

That finding was helped by a fact recorded in a later reply: 青岛啤酒 had been administratively recognised as a well-known mark in 1991, so the embossed name was familiar to the relevant public and highly recognisable. The practical lesson is that the more distinctive and better known the embossed element, the harder it is to argue that a new label displaces it.

Where the exhaustion argument stops

The obvious defence is that the bottle was bought. Once goods bearing a mark are sold, the property interest in the mark on those goods is treated as exhausted, and the owner of the goods may resell them; that is the ordinary basis for second-hand trade.

The guidance carves out the situation where the contents have changed substantively, so that what circulates is no longer the same product the rights holder or its licensee put on the market. Where that change is combined with a likelihood of confusion, exhaustion is not applied. A bottle sold full of Qingdao Beer and refilled with someone else's beer is a different product, even though the glass is the same glass.

The case then sorts bottles into three groups, and this is the most practical passage in the document:

  • Paper label only. The label can be cleaned off, and another producer may then use the bottle.
  • Label plus embossed or branded lettering. If the lettering is not effectively covered, it stays within the shopper's field of view. Another producer's label does not neutralise it, and the identifying function is damaged.
  • The bottle registered as a three-dimensional mark. Refilling it with the same or similar goods and selling them is treated as infringement.

Effective covering has a working standard, set out in a 1995 reply of the former Trademark Office: the mark pattern has to be covered in full. Covering that leaves the main part of the pattern visible does not do the job. A sticker over half the neck is not a defence.

Why the residual ground, and what it means in practice

Several categories of infringement exist, and the dispute here was which one applied. Using an identical mark on identical goods was arguable: the embossed name was the same, and the goods were beer.

The reason the bureau went the other way is procedural and worth knowing. Where the identical-goods ground applies and the illegal turnover or the illegal gains reach the statutory thresholds, an administrative authority must refer the matter for criminal proceedings. Intellectual property rights are private rights, and criminal measures are treated as a last resort, to be used where administrative and civil routes cannot stop the conduct. Classifying the case under the residual ground kept it in administrative hands, which the guidance describes as serving both the legal and the social effect.

Two replies support that classification. The 1995 reply dealt with glass drinks containers that retain value and carry marks that cannot be removed: a purchaser filling its own drinks must cover the pattern completely, and partial covering that leaves the main part visible is itself other damage to the exclusive right. The 2019 reply, issued on 20 November 2019, addressed beer bottles directly. It described the embossed text as an inherent feature of the recycled bottle, noted the well-known status of 青岛啤酒, and reasoned that shoppers would infer an investment, licence or cooperation link, while generally not concluding that the rights holder had produced the beer. That distinguishes the case from the automatic confusion that arises when an identical mark is used on identical goods.

Recycling itself is not the target. The guidance states that reusing second-hand containers which meet safety standards serves resource saving and is encouraged. What it asks of recyclers is confined to the marks: cover or remove the original lettering effectively, and place their own mark prominently, in legible type, in a conspicuous position on the bottle.

Frequently asked questions

Does adding my own label to a recycled bottle solve the problem?

Not on the facts of this case. The bureau accepted that the new label let shoppers identify the actual filler, but held that the embossed name still worked as a source indicator, because a connection with the original brand could be inferred. Both marks were in play. The label mattered; it simply did not displace the glass.

What counts as effective covering of an embossed mark?

The 1995 reply sets the standard: the mark pattern must be covered in full. Covering that leaves the main part of the pattern visible still amounts to other damage to the exclusive right. In the Qingdao Beer case the neck lettering was left exposed altogether, so the finer question of partial covering did not need to be reached.

What if the bottle itself is a registered three-dimensional mark?

The guidance treats this as the clearest of the three situations. Where the container is registered as a three-dimensional mark, another producer that refills it with the same or similar goods and sells them is treated as infringing. No separate argument about the label arises.

What was the outcome for the refiller?

An order to stop the infringing conduct immediately, and an administrative fine of RMB 30,000. The company did not apply for administrative reconsideration and did not bring an administrative lawsuit, so the decision stood. The case was recommended by the Shandong provincial intellectual property office and released in March 2022 as Guiding Case No. 7.

Official sources

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