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Intellectual Property and Commercial Court


2011 Xing Shang Su Zi No. 96

Decision No. 2011 Xing Shang Su Zi No. 96
Date September 29, 2011
Decision Highlight

Evidence for the use of a trademark does not necessarily mean to use the trademark alone. However, in the case where the trademark-at-dispute for the registration application does not have naturally-born distinctiveness, the actual use is often a use that combines the trademark-at-dispute and other trademarks that consumers see as an obvious indication of the product source. Then, the applicant has to provide longer-period or more, advertising or marketing data to prove that consumers have changed their recognition and that they have associated the trademark-at-dispute with a specific product provider such that the function of indicating products is acquired. Then, the after-birth distinctiveness is acquired. The above-mentioned evidence of the use provided by Plaintiff has been taken into overall consideration. Most are a use that incorporates other trademarks. And, the objective situation is that the trademark-at-dispute is often mixed or combined with other ornamental patterns. So, it is hard to say that the trademark-at-dispute has been used by Plaintiff and transactionally known to relevant consumers as an identification mark that stands for Plaintiff´s products, so that the after-birth distinctiveness is acquired. Therefore, the rule vested in Article 23, Paragraph 4 of the Trademark Act is not applicable.


After-birth distinctiveness

Relevant statutes Article 23, Paragraph 4 of the Trademark Act
  • Release Date:2020-11-13
  • Update:2020-12-07