By Grace Guo and Spring Zhu 

Late last year, the Trademark Review and Adjudication Board (TRAB) upheld an opposition decision by the China Trademark Office (CTMO) disapproving the registration of trademark No. 14876938 for

 (授粉精华液Lantian及图, the Subject Mark)

on the goods "Manure for Agriculture; Fertilizer, etc." in Class 1.

Both the TRAB and CTMO held that the Chinese characters "授粉精华液" , with their conceptual meaning of "pollination essence", is a generic term commenly used in the agricultural sector as a substitution for insect-driven crop pollination. Since these Chinese characters are the major distinctive part of the Subject Mark compared with the remaining elements' pinyin "Lantian" and device, the Subject Mark overall lacks distinctiveness and is therefore not registerable according to Article 11(1) of the China Trademark Law.

For your information, Article 11(1) of the China Trademark Law provides that "The following signs may not be registered as trademarks: (1) A sign only bearing the generic name, design, or model of the goods……." As you see, this Article applies when the mark only and solely bears generic term and incorporates no other elements.

Therefore, it seems the CTMO and TRAB are interpreting Article 11(1) in a stricter way recently by disapproving the Subject Mark, which uses the generic term as a prominent part of its combination of elements.

It is worthwhile to mention that the Applicant did waive the exclusive rights on the Chinese characters "授粉精华液" when applying for the Subject Mark back in 2014. Therefore, the Applicant argued during the review of opposition that the distinctive part of the Subject Mark should be "Lantian" and the device part after the waiver. However, the TRAB found the waiver useless because the relevant consumer will still be able to read the Chinese characters and perceive the Chinese characters as the most distinctive component when reviewing the Subject Mark. Therefore, the waiver did not overcome the lack of distinction issue.

We would like to see the court's standard in applying Article 11(1) in this case. However, it is unknown at this stage if the TRAB decision was appealed in court or not. We are following up and will keep you posted.

In any event, the case serves as a warning to trademark owners to be very careful when incorporating a generic term in a trademark. Even if there are other elements combined, the entire mark may still risk being disapproved or invalidated per the CTMO and TRAB's standard in the case reported above.