-- A Complete Analysis of the "Absolute Prohibitions" in Trademark Registration
In trademark practice, many businesses encounter such a common problem: after spending a long time designing a trademark and filing the application, the Trademark Office refuses the application on the grounds that the sign cannot be used as a trademark. Even worse, some businesses may have already started using the sign in the market before realizing it cannot be used as a trademark—and may even face penalties from the competent authorities.
These issues arise from crossing the "absolute prohibitions" of the Trademark Law, specifically Article 10 of the Trademark Law, which sets out signs that cannot be used as trademarks. Therefore, when designing a trademark, the first thing a business should consider is not whether the name is distinctive or easy to remember, nor whether it has distinctiveness or conflicts with prior similar marks. Instead, the primary consideration should be whether the sign can be registered and used as a trademark at all.
This article will break down, one by one, the signs that are absolutely prohibited from being registered or used under Article 10 of the Trademark Law, helping you avoid the "minefields" of Trademark Law right from the very first step of brand naming.
I. Signs Relating to the State and Sovereignty
(I) Signs identical with or similar to China's country name, national flag, national emblem, national anthem, etc.
The name, national flag, national emblem, national anthem, military flag, military emblem, military anthem, medals, etc. of the People's Republic of China, as well as the names, emblems, designations of specific locations of central state organs, or the names and graphics of landmark buildings, shall not be used as trademarks. For example, directly applying for registration of marks such as "Zhongguo (Chinese pinyin)," "CHINA," or a graphic of the national flag will be lawfully refused.
The above-mentioned state names, national flags, national emblems, and other state symbols are closely tied to the dignity of the nation. Therefore, the examination on such signs is particularly strict, with the aim of preserving the dignity of the state and the sanctity of its sovereign symbols.
(II) Signs identical with or similar to the names of foreign countries, intergovernmental international organizations, etc.
Marks that are identical with or similar to the name, national flag, national emblem, or military flag of a foreign country are prohibited in principle, unless authorized by the government of that country. Likewise, marks that are identical with or similar to the name, flag, emblem, etc. of an intergovernmental international organization are strictly restricted, unless authorized by that organization or unlikely to mislead the public.
II. Official Signs and Public Service/Humanitarian Signs
(III) Marks identical with or similar to official signs or inspection stamps
Marks that are identical or similar to official signs or inspection stamps used to indicate control or guarantee shall not be used as trademarks, except where authorized. "Official signs or inspection stamps" refer to marks used by official authorities to indicate that they exercise control over, guarantee, or inspect the quality, performance, composition, raw materials, etc. of goods, such as a Danish cheese mark and a Netherlands commodity inspection mark. Such marks typically represent the credibility and authority of the government and should not be monopolized by commercial entities.
(IV) Marks identical with or similar to the name or symbol of the "Red Cross" or "Red Crescent"
Marks that are identical with or similar to the name or symbol of the "Red Cross," an international humanitarian protection symbol, or the "Red Crescent," which is exclusively used by the Red Crescent societies of Arab countries and certain Islamic nations, are absolutely prohibited from use. These are universal symbols of international humanitarian protection and are forbidden for commercial purposes.
III. Signs Contrary to Social Order or Morality
(V) Signs containing ethnic discrimination
Any sign containing ethnic discrimination shall not be used as a trademark. "Ethnic discrimination" here refers to signs that disparage, demean, or otherwise treat a particular ethnic group unequally. For example, applying for registration of the Chinese-character mark "蛮子" (pronounced “Manzi,”) on goods such as "honey." This term is a historically derogatory label for southern ethnic minorities or southerners in China, carrying strong discriminatory and offensive connotations. But an applicant might nevertheless seek to use it on honey to suggest 'wild,' 'untamed,' or 'from remote natural lands' — implying a rustic, unprocessed, or pure origin. However, because the term is fundamentally an ethnic slur, such a trademark is not registrable.
However, some words or graphics relating to ethnicity or race may not in themselves be hurtful to ethnic or racial sentiments, but if used on certain specific goods or services, they could still harm such sentiments. These signs shall also not be registered or used as trademarks. For example, registering and using the word mark "Native American" on sanitary ware products falls into this category.
(VI) Deceptive marks
"Deceptive" means that the sign makes an indication regarding the quality or other characteristics, or the origin, of the designated goods or services that exceeds their inherent degree or is inconsistent with the facts, and is likely to cause the public to be misled about the quality, characteristics, origin, etc. of the goods or services, thereby harming the public interest. Examples include registering and using the mark "Metabolism Repair" on goods such as "bird's nest (edible bird's nest, a gelatinous substance made from swiftlet saliva, is commonly consumed in Chinese culture and is believed to offer health benefits), canned fruit," or registering the mark "Fire Beef" on "fish-based food products."
These examples are likely to mislead consumers as to the type, raw materials, function, or purpose, etc. of the products, and therefore cannot be registered or used as trademarks.
(VII) Signs detrimental to socialist morality or customs, or having other adverse effects
This provision mainly regulates signs that may have a negative or adverse impact on China's political, economic, cultural, religious, ethnic, and other social public interests and public order, reflecting the state's proactive protection of socialist core values and social morality.
For example, in the "MLGB" (an abbreviation of Chinese pinyin for a common Chinese vulgar expression) trademark invalidation case, which was selected as one of the Top Ten Intellectual Property Cases of Chinese Courts in 2019, although the trademark registrant argued that "MLGB" stood for "My Life's Getting Better," the Beijing Higher People's Court ultimately held that, given that in the online environment a specific group of people had come to refer to "MLGB" as having adverse connotations, the disputed trademark should be deemed to have "negative connotations and a lack of refinement."
IV. Special Provisions for Geographical Name Trademarks
The name of an administrative division at or above the county level, or a foreign geographical name known to the public, shall not be used as a trademark. The name of an administrative division at or above the county level includes its full name and abbreviation, as well as the pinyin form of provinces, autonomous regions, municipalities directly under the central government, special administrative regions, provincial capitals, cities specifically designated in the state plan, and well-known tourist cities. A foreign geographical name known to the public means the name of a country or region other than China that is known to the Chinese public, including its full name, abbreviation, foreign name, and commonly used Chinese name, such as "New York," "Seoul," etc.
Unlike marks lacking distinctiveness, which may acquire "distinctive character" through actual use, signs that violate Article 10 of the Trademark Law can neither be registered nor used as trademarks. This means that even if such a sign has been used in the market for many years and has gained a high degree of reputation, it still cannot be registered—and may even be subject to administrative penalties.
In conclusion, when designing a trademark, it is essential to avoid the 'absolute prohibitions' "absolute prohibitions" mentioned above from the outset. Before filing a trademark application, it is advisable to conduct a self-check based on these provisions or seek the expertise of a professional trademark agency for an evaluation. This can help prevent the unnecessary investment of substantial time and expense only to later discover that you have crossed an insurmountable red line.
