According to our daily consultation services, it appears that many companies fall into a trap, they take for granted that it's a must to register the trademarks in Class 35 if they would like to sell or promote their own goods/services with some common business ancillary services, such as advertising, marketing, sales promotion, etc..  We also saw some foreign companies spent a lot of money to oppose or invalidate others' trademarks in Class 35, just because they would like to sell and promote their goods/services in China.  Actually, the services in Class 35 are mainly provided for others, but not include the right holders' conducts that are operated out of their own business requirements, and the companies are not required to register a mark in Class 35 when they sell or promote their own goods/services in a specific class. Next, let's give an overall clarification for the services in Class 35.

Characters of Services in Class 35

The services in Class 35 mainly contain the business management, operation, organization, administration, office functions, advertising, marketing and sales promotion related to commercial and industrial enterprises.

Sales of goods are not deemed as services according to Chinese Clarification of Goods and Services.

The services in Class 35 mainly aim to assist others in business operation, business management, administration of business activities and office functions, advertising to the public in various ways.

The most important nature of the services in Class 35 is that they are provided for others, rather than the relevant operation conducted by the right holders out of their own business requirements.

Interpretation of Services in Class 35

Generally speaking, a commodity production enterprise that only manufactures or sells its own commodities, and does not engage in providing advertising services, commercial management assistance and other services for other market entities or individuals, does not need to apply for the trademarks in Class 35.

Ø  Services related to advertising

The services refer to advertising, making an advertisement and advertisement planning for others, such as advertising, bill-posting, publicity, production of advertising films, outdoor advertising, advertising consultation, advertising editing, production and dissemination, etc., excluding the direct advertising for one's own goods or services, or inviting others to advertise, plan, edit, produce and disseminate advertisements for one's own goods/services.

During the promotion of one's own goods/services, the party concerned can use his mark over the actually operated goods/services for advertising.

The entities that mainly provide the services related to advertising for others should apply for their mark over such services in Class 35, like BlueFocus, Ogilvy, McCann.

Ø  Services related to business management assistance

The services refer to the provision of assistance for others’ operation and management of commercial enterprises, such as business management assistance, business management consultancy, commercial or industrial management assistance, business research, business management of hotels, organize business activities, business evaluation services, business data analysis, market research, consumer research, etc., excluding the daily enterprise management, business analysis, research, investigations that are conducted for one’s own business activities or enhancement of enterprise management.

The entities that mainly provide the services related to business management assistance for others should apply for their mark over such services in Class 35, like Grant Thornton International Ltd, RSM US LLP.

Ø  Services related to franchising

The services refer to the commercial management and other services provided for others’ franchise operation, excluding the franchise operation conducted by the franchiser itself.

"Franchising" and "commercial management of franchising" are two different kinds of services.  Franchising refers to the business activities in which an enterprise that owns registered trademarks, corporate logos, patents, proprietary technologies, and other business resources, licenses the business resources to other operators in the form of a contract, the licensee carries out operations under a unified business model in accordance with the contract and pays franchise fees to the franchiser.  The commercial management of franchising refers to the auxiliary services provided for the franchising of others, including franchise business management assistance, business management consulting of franchise, franchise business affairs management and commercial administration of the licensing of the goods and services of others.

The entities that mainly provide the services related to franchising for others should apply for their mark over such services in Class 35, like KFC, MCDONALD'S.

Ø  Import & export agency services

The services refer to the professional agency services provided by relevant commercial entities to handle import and export trade and other services for others' goods, excluding trading one’s own goods by way of purchase or sale, or handling the import and export business of one’s own products.

The entities that mainly provide the import & export agency services for others should apply for their mark over such services in Class 35, such as China Silk Corporation, Guangzhou Import & Export Trading Co., Ltd.

Ø  Sales for others

The services refer to the provision of specific services such as advice, planning and consultation to help others improve the sales volume or demand of goods/services in the market.

The sale of one's own goods or services directly to consumers through retail or wholesale, or the sale of others' goods or services to earn a difference are not included in the services "sales for others".

The distributor or provider of goods or services usually belongs to the object being served. The entities engaged in selling for others mainly include those who provide specific services online or offline to promote others' goods or services.

The entities that mainly provide the sales services for others should apply for their mark over such services in Class 35, like GOME, Suning.

Ø  Provision of an on-line marketplace for buyers and sellers of goods and services

The services include, relevant commercial entities provide an online platform for the buyers and sellers, the goods and services provided by the sellers gathered on the platform form a collective market, buyers can log on to the platform to select and purchase the desired goods or services.

Opening one’s own online store to engage in sales activities are not included the services "provision of an on-line marketplace for buyers and sellers of goods and services".

The entities that mainly provide an on-line marketplace for buyers and sellers of goods and services should apply for their mark over such services in Class 35, like Alibaba, JD, Pinduoduo.

Ø  Personnel related services

The services refer to personnel management, personnel recruitment and other services provided for others, such as recruitment, human resource management, personnel management, vocational placement, employee job adjustment, etc..

The personnel management, employee position adjustment, and recruitment of personnel for one’s own enterprises engaged in internal business activities are not included in the personnel related services.

The entities that mainly provide personnel related services for others should apply for their mark over such services in Class 35, like 51job, Head Hunting.

Ø  Services related to office functions

The services refer to document copying, file management, shorthand and other office services provided for others, such as photocopying services, shorthand, computerized file management, secretarial services, business document management, newspaper subscriptions, etc.

The internal file management, printing, copying, and other activities for one’s own enterprise are not included in the office-related services.

The entities that mainly provide services related to office functions for others should apply for their mark over such services in Class 35, like printing shops.

Ø  Services related to finance and accounting

The services refer to finance and accounting provided for others, such as accounting, business auditing, tax planning, financial auditing, etc.

The tax planning, commercial auditing and etc. which are carried out directly by the enterprise itself or assisted by others are not included in the services related to finance and accounting.

The entities that mainly provide services related to finance and accounting for others should apply for their mark over such services in Class 35, such as Price waterhouseCoopers, Klynveld Peat Marwick Goerdeler, Ernst&Young.

Ø  Sponsorship search

These services refer to the sponsorship search provided for others, excluding the sponsorship search for one's own related business activities or the sponsorship for others.

The entities that mainly provide sponsorship search for others should apply for their mark over such services in Class 35.

Ø  Wholesale and retail services related to medicines and medical supplies

The services refer to the concentration and classification of drugs, pharmaceutical preparations, sanitary preparations, medical supplies, veterinary drugs, veterinary medical preparations, and other commodities that require national approval and qualification certificates before retail or wholesale (except for transportation), so that customers can see and purchase them.

The entities that mainly provide wholesale and retail services related to medicines and medical supplies for others should apply for their mark over such services in Class 35, the retail and wholesale services related to other goods are not acceptable in mainland China.

Use of Services Mark in Class 35

Ø  Standard use of registered mark

The trademark registrant should clearly know the contents of the services in Class 35 and actually use the registered mark over the designated services in a standard manner.

The trademark use on the door of a shop for the purpose of selling the goods produced by oneself doesn't belong to the use of the services "sales for others". When other market entities claim infringement of such trademark use based on the trademark over specific goods/services, even if the accused infringer has the registered mark over the services "sales for others", the trademark use may still constitute infringement or unfair competition against others' registered trademark.

Ø  Preservation of use evidence

When a mark is registered for more than three years, any entity or individual can file an application to cancel the trademark for ceasing to use for three consecutive years.

Compared with the goods, the services are intangible, which makes it more difficult to provide use evidence of the service trademarks, so the trademark registrant should pay more attention to the preservation of the use evidence of the service trademark during use.

The use evidence preserved may include:

1. The service contract where the trademark, trademark number, services description, services contents, effective period are clearly showed;

2. The invoices, payment voucher, receipt, etc. that match with the service contract;

3. The promotional materials through various media such as radio, television, newspapers, magazines, electronic media, the Internet, and other channels