Overcoming Article 11: When Is a Trademark Too Descriptive for the CNIPA?

When the China National Intellectual Property Administration (CNIPA) refuses a trade mark application for being “merely descriptive,” it is applying Article 11 of the Trademark Law. This article targets signs that describe the goods or services rather than identifying their commercial source. Unlike the absolute prohibitions of Article 10, an Article 11 refusal does not prevent the applicant from using the mark in commerce — it only blocks registration. And critically, Article 11 refusals can be overcome through evidence of acquired distinctiveness.

The Three Grounds Under Article 11

Article 11 sets out three categories of signs that cannot be registered:

• Article 11(1): Signs comprising only the generic names, designs, or model numbers of the goods. These are the common names used by the trade and the public to refer to a category of products (e.g., “smartphone” for mobile phones).
• Article 11(2): Signs having direct reference to the quality, main raw materials, function, use, weight, quantity, or other features of the goods. These are descriptive marks that tell the consumer what the product is or does (e.g., “Pure Cotton” for textiles).
• Article 11(3): Signs that otherwise lack distinctive features. This catch-all covers marks that, while not strictly generic or descriptive, are too simple, too common, or too decorative to function as identifiers of origin.

How the CNIPA Assesses Descriptiveness

The CNIPA examines whether the average Chinese consumer would perceive the sign as describing the goods or services rather than identifying a specific source. The assessment takes into account:

• The meaning of the mark in Chinese — including simplified characters, traditional characters, and Pinyin romanisation.
• The meaning of foreign-language elements as commonly understood by Chinese consumers. English words that are widely known in China (e.g., “fresh,” “natural,” “smart”) may be treated as descriptive.
• The relationship between the mark’s meaning and the designated goods. A word may be arbitrary for one category but descriptive for another.

The CNIPA has become increasingly strict in recent years, rejecting marks containing dictionary terms even for goods or services only tangentially related to the word’s meaning. This tightening has been most pronounced since 2022.

Article 11 vs. Article 10: The Crucial Difference

The most important practical distinction for business owners:

• Article 10 refusals: The mark is banned from both registration and use. Commercial use may result in fines.
• Article 11 refusals: The mark cannot be registered, but the applicant is generally free to use it in commerce without penalty. The mark simply will not enjoy the exclusive rights that come with registration.

This distinction matters for brands that have already been using a descriptive term in the market. They may continue to use it while pursuing registration through the acquired distinctiveness route.

The Acquired Distinctiveness Exception

The final paragraph of Article 11 provides that signs falling within paragraphs (1), (2), or (3) may be registered “where they have acquired distinctive features through use and become readily identifiable.” This is the acquired distinctiveness (or “secondary meaning”) exception.

However, the standard of proof is extremely high. The CNIPA and the Trademark Review and Adjudication Board (TRAB) require evidence that the mark has been used so extensively in Mainland China that the relevant public now perceives it as a brand rather than a description. Some judicial opinions have suggested the evidentiary threshold approaches that required for well-known mark recognition — a near-nationwide reputation. A separate article on acquired distinctiveness evidence covers this topic in depth.

Genericness: The Highest Bar

Article 11(1) covers generic terms — the most difficult category to overcome. Generic names are the common terms used by the industry and consumers to refer to the product category itself. They are considered the common property of the trade and cannot be monopolised by any single entity.

Examples include industry-standard technical terms, commonly accepted product names, and model number conventions. Even with extensive use, overcoming a genericness objection is substantially harder than overcoming a descriptiveness objection, as granting a monopoly over a generic term would prejudice all other traders in the industry.

Strategic Recommendations

• Choose inherently distinctive marks: Coined words, arbitrary terms, and fanciful marks avoid Article 11 entirely. This is the safest strategy for China.
• Develop a Chinese-language mark: If you plan to operate in China long-term, create a distinctive Chinese character mark rather than relying on an English word mark that may be descriptive.
• File both word and design marks: A descriptive word combined with a distinctive design element may be accepted as a composite mark, though the word element may be disclaimed.
• Prepare evidence of use: If you must file a descriptive mark, begin collecting evidence of use in Mainland China immediately. The evidence must demonstrate consumer recognition of the sign as a brand.

Common Mistakes

• Assuming English words are safe: Common English words known to Chinese consumers may be treated as descriptive.
• Confusing Article 10 and Article 11: An Article 11 refusal does not prohibit use. An Article 10 refusal does. The response strategies are fundamentally different.
• Underestimating CNIPA’s strictness: The CNIPA has tightened its descriptiveness standards since 2022. Marks that might have been accepted previously may now be refused.
• Filing without a Chinese-language strategy: Relying solely on English or Latin-script marks in China leaves the brand vulnerable to both Article 11 objections and third-party squatting of Chinese character equivalents.

Key Takeaway

Article 11 prevents the registration of generic, descriptive, and non-distinctive marks. While less severe than Article 10 — because it does not ban commercial use — it still blocks the exclusive rights that only registration provides. The acquired distinctiveness exception exists but requires an exceptionally high standard of proof focused on Mainland China. For most applicants, investing in an inherently distinctive mark is far more efficient than attempting to prove secondary meaning for a descriptive one.