Well-Known Marks in China: Recognition Only When Needed

Why "well-known" is a finding, not a filing

Foreign brand owners tend to arrive with the same assumption: that a well-known trademark is something a company applies for, obtains and then holds — a badge that strengthens every later dispute in China. The examination guidance works the other way round. Fame is a fact the trademark authorities find inside a particular case, at a party's request, and only where the outcome of that case depends on it. CNIPA's published questions and answers on the well-known mark chapter of the Trademark Examination and Review Guidelines describe how narrow that doorway is, and what a holder has to put on the table to pass through it.

Recognition exists to decide a case, not to reward a brand

Three principles sit side by side: recognition case by case, protection on request, and recognition as needed. The third one decides most files.

The guidance states it as a condition. Where the evidence already on file allows the party's mark to be protected through other provisions, the authorities do not examine fame. The same applies where registration and use of the disputed mark would not cause confusion, or would not mislead the public in a way that may harm the party's interests. The question of fame is reached only when nothing else disposes of the case.

Recognition also depends on a request. The examination is not opened by the authorities on their own motion, so a dispute decided on another ground leaves the mark's reputation unexamined, however thoroughly the file documents it.

Practice adds a second layer. The chapter ties the principle to a protection-oriented, result-oriented reading and requires three things at once: the finding must be necessary to handle the case, it must meet the statutory conditions, and no other route must be capable of giving a remedy. Put together, that places a fame argument behind similarity and prior-rights arguments rather than in front of them. A mark strong enough to be famous is usually strong enough to succeed on ordinary grounds — and where it is, fame is never examined at all.

The drafts that fail tend to fail here. They open with volume — decades of sales, hundreds of awards — and never explain why the case cannot be decided without the finding. The comparison of the two marks and of the goods or services comes first, because that comparison is what shows whether an ordinary ground already resolves the dispute.

Evidence: the same proof, in newer forms

The chapter widens the forms of proof it accepts, largely because trading and advertising have moved.

The paper trail. Contracts, invoices, delivery notes, bank statements, import and export documents — still the base of any file.
Online sales. Records from e-commerce platforms are named as use evidence in their own right, not as a substitute for invoices.
Territory and channels. Sales coverage, the distribution of sales outlets, and sales channels and methods are assessed across traditional and non-traditional business models, so a brand that trades only through marketplaces is not disadvantaged by having no shops.
Media. Advertising, reviews, press coverage, rankings and other promotional material are assessed across traditional and non-traditional media, which brings platform advertising and campaign work alongside television and print.
Tax. The original certificate issued by the tax authority, a notarised copy of it, or a notarised printout of the electronic certificate.

That last item is where files quietly fail. A printout of an electronic tax certificate, taken from the tax portal and filed as it is, is not the document the chapter describes; the notarisation of that printout is the point of the rule. The same logic runs through the whole list: what is accepted is evidence a third party can authenticate, which is why platform export files and media buying reports are worth collecting in their native form rather than as screenshots.

Good faith, and the limits of an earlier finding

Good faith is stated as an express principle of recognition. A party requesting protection must act in good faith and is responsible for the truthfulness, accuracy and completeness of the facts it states and the evidence it files. Those statements are the material on which both fame and the likelihood of confusion are assessed, so an inflated claim is not a harmless overstatement in a document nobody reads closely. A party with a serious record of dishonesty is not assessed for fame at all.

The chapter also deals with holders who have been through the process before. Where a mark has already been recognised as well-known, conditions are set for protecting it again, together with the evidence to be filed. The specific requirement is continuity: the holder has to submit evidence showing that the fame found in the earlier case extends to the present one. An earlier decision records a status at a point in time; it does not carry forward by itself, and the years in between have to be filled in with trading, advertising and recognition material.

For a foreign group, this is the difference between a group archive and a China file. Fame proved for one subsidiary, in one product line, at one period, is the starting point of the next submission rather than the whole of it.

Translation, and one formulation for confusion

Two further points matter for marks that operate in more than one language.

The first is translation. Where the disputed mark expresses another's well-known mark in a different language, it is a translation if that language has already established a correspondence with the well-known mark, and the expression is well known to, or customarily used by, the relevant public. A second route catches expressions that are not equivalents at all: where the different-language version is likely to make the relevant public believe there is a considerable degree of connection with the well-known mark, it is also a translation. For a foreign brand that reaches coinages, transliterations and invented Chinese names that were never an official rendering of the mark.

The second is how the harm is described. Confusion and misleading are addressed in a single formulation, without being split into separate categories. Submissions written as two alternative tests, each proved on its own, no longer match the way the guidance frames the issue.

Frequently asked questions

Why is fame sometimes never examined?

Because recognition is a means of deciding a case, not a separate entitlement. If the evidence on file allows the mark to be protected on another ground, or if the disputed registration and use would not cause confusion or mislead the public to the party's detriment, the authorities decide the case without reaching fame.

Can online sales records count as evidence of fame?

Yes. Records from e-commerce platforms are named as use evidence alongside contracts, invoices, delivery notes, bank statements and import and export documents. Sales coverage and channel evidence is read across traditional and non-traditional business models, so a marketplace-only operation is not treated as having a thinner record.

Does an earlier recognition decision still help years later?

It helps, but it does not travel on its own. A holder seeking protection again has to file evidence that the fame found in the earlier case extends to the present one, which means the intervening years need trading, advertising and recognition material of their own.

Is a Chinese version of a foreign mark a translation?

It can be, on either of two routes. If the Chinese expression has an established correspondence with the foreign mark and is well known to or customarily used by the relevant public, it is a translation. It is also a translation if it is likely to make the relevant public believe there is a considerable degree of connection with the foreign mark.

Official sources

《商标审查审理指南》重点问题一问一答——驰名商标的审查审理 (Questions and answers on well-known marks) — China National Intellectual Property Administration, 8 February 2022.
关于发布《商标审查审理指南》的公告 (Announcement issuing the Trademark Examination and Review Guidelines) — China National Intellectual Property Administration, 22 November 2021.