1. What Are Non-Traditional Trademarks
Traditional marks are mainly words and devices. Non-traditional trademarks go beyond the flat, visible form and include three-dimensional marks (e.g. a distinctive product shape), color marks (a single color or a combination), sound marks (e.g. a recognizable tune), scent marks, position marks, motion marks and holograms. China’s Trademark Law (Article 8) already brings them within the scope of registrable signs.
2. Why Distinctiveness Is the Make-or-Break for Non-Traditional Marks
Distinctiveness means a mark can distinguish the origin of goods. Most non-traditional marks are inherently descriptive or decorative — a product shape is often dictated by function, and a single color is often seen as mere ornamentation. They are therefore more easily refused for “lack of distinctive character”, which is why their registration rate tends to be lower.
3. How Distinctiveness Is Assessed for Typical Types
3.1 Three-dimensional marks
Shapes dictated by the nature of the goods, required to obtain a technical effect, or giving substantial value to the goods are excluded from distinctiveness (Article 12). Only arbitrary or fanciful 3D shapes may proceed.
3.2 Color marks
A single color is generally not distinctive; a combination of colors may register only if it stably points to a specific origin. The applicant must explain how the colors are used and the connection to the source.
3.3 Sound marks
A tune or sound must be easy to recognize and remember, and exclusively associated with one owner. Sounds that are too short or are common industry cues are hard to register.
3.4 Scent, position and motion marks
These are still rare in China. The core test is proving the sign has moved beyond function/ornamentation and independently indicates origin.
4. Practice Tips: Winning with “Acquired Distinctiveness”
Even without inherent distinctiveness, a mark may register if long use makes consumers stably associate it with one source (acquired distinctiveness / secondary meaning). Recommendations: ① keep continuous use evidence (ads, sales, awards); ② proactively file proof of use with the application; ③ where possible, build a traditional-mark portfolio first and cultivate recognition of the non-traditional sign over time.
5. Common Misconceptions
FAQ
Q: Must a non-traditional mark be in actual use before filing?
A: Not mandatory. But if it lacks inherent distinctiveness, build use evidence; if filing on “acquired distinctiveness”, submit proof of use.
Q: Do 3D marks conflict with design patents?
A: They protect different aspects and can coexist, but scope and term differ — a combined strategy is advisable.
Q: How do I file a color-combination mark specimen?
A: Clearly show the colors, where they are used, how they combine, and explain the connection to the source.
If you need to assess the registrability and strategy of a non-traditional mark in China, contact Hefei Zhihai Yida Patent Agency (code 34408). You may also use our Zhihai Tools, and see the trademark classification and patent annuity watch services.
Source: China National Intellectual Property Administration (CNIPA), Guidance on Non-Traditional Marks Being Possessed of Distinctive Character (2023-12-29, original link). This article introduces the intellectual property system of the People’s Republic of China (China). For the latest official rules, please refer to the authoritative sources.