The registration of non-traditional trademarks in China: a cautious approach

Abstract

Traditionally, trademarks convey source information to consumers through the use of words, letters, or numerals. The types of signs that are nowadays considered as being capable of constituting a trademark have expanded beyond words or figurative devices. Although non-traditional trademarks have received wide acceptance in many jurisdictions, the hurdle for obtaining registration appears to be higher than for traditional marks. Two issues have figured predominantly in the debate over protection for non-traditional marks: distinctiveness and functionality. Applications for non-traditional trademarks in China have given rise to a number of judicial decisions. The jurisprudence in China has taken a cautious approach in making decisions on a case-by-case basis, depending on the kind of mark in question. After a brief introduction to non-traditional marks, section 2 interprets the trademark definition in the China Trademark Law and reviews the extent to which non-traditional marks might be protected under the existing laws. Sections 3, 4, and 5 present a comprehensive and systematic analysis of the functionality and distinctiveness issues for three-dimensional marks, colour marks, and sound marks. Finally, the Conclusion highlights the main problems in the protection of non-traditional trademarks and proffers solutions for analysing distinctiveness and functionality issues for non-traditional marks.