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The Gradual Expansion of Non-traditional Trademark Registration in China
date: 2018-09-06

Besides traditional trademarks, businesses have been expanding their portfolios to include marks that are not usually accepted for protection but are nevertheless linked to their products – the so-called non-traditional trademark, which may include product designs or configurations, colors, scents, sounds, tastes, etc.

China has announced that it will revise its 2001 Trademark Law to include non-traditional trademark under its scope of protection, following the lead of many other jurisdictions enacting similar laws. A non-traditional trademark that is allowed in China under both the 2001 Trademark Law and the amendments thereto is the three-dimensional trademark. Such a mark may be registered if it has "acquired distinctive features through use and is readily distinguishable".

Protection under the Trademark Law is not the only available option for the shape and packaging of goods; brand owners can also seek protection under the Patent Law, in the form of design patents. In addition to other traditional and non-traditional trademarks, safeguards for three-dimensional signs may be further extended through copyright. Although copyright can be used directly to protect a commercial design or identifying sign, it is often used to supplement the enforcement of trademarks or design patents, as the use of copyright alone tends to be weak. Although much of the non-traditional trademarks realm remains unexplored in China, there is a trend towards broadening the scope of protection to include such marks. While the amended Trademark Law may not extend the scope of registrable trademarks as much as some brand owners would like, it would be prudent to bear in mind that China is still fairly young in its IP development.