Proving Your Reputation: A Guide to Acquired Distinctiveness Evidence in Mainland China

When a trade mark application is refused by the CNIPA for lacking distinctiveness under Article 11, the applicant can fight back by proving the mark has acquired distinctiveness through use. In theory, this path is straightforward: show the mark has become recognisable as a brand. In practice, the evidentiary standard in Mainland China is one of the highest in the world, demanding extensive, localised, and meticulously documented proof that many foreign brand owners are unprepared to provide.

The Legal Basis

Article 11 of the Trademark Law provides that signs which are generic, descriptive, or otherwise non-distinctive may be registered “where they have acquired distinctive features through use and become readily identifiable.”

There is no specific statutory standard for what constitutes “readily identifiable.” The assessment is made by the Trademark Review and Adjudication Board (TRAB) on appeal from a CNIPA refusal, and by the courts on further appeal. However, practitioners and judicial opinions have established that the threshold is extremely high — some judges have indicated it should approach the level of proof required for well-known mark recognition, meaning near-nationwide reputation.

The Territorial Requirement: Mainland China Only

This is the most important rule for foreign applicants: all evidence must relate to use and recognition in Mainland China specifically. Evidence from Hong Kong, Macau, Taiwan, or any other jurisdiction outside the mainland is given minimal to no weight.

International sales figures, global advertising campaigns, and foreign market surveys do not satisfy the requirement. The CNIPA and TRAB are focused on whether the Chinese consumer on the mainland recognises the sign as a brand.

Essential Categories of Evidence

The following types of evidence are critical for an acquired distinctiveness claim:

1. Sales Evidence in Mainland China

Localised sales invoices (“fapiao”) are the gold standard. Chinese tax invoices (VAT invoices) carry particular weight because they are government-issued documents that are difficult to fabricate. Evidence should include annual sales figures in RMB, transaction volumes, geographic distribution of sales across Chinese provinces, and the continuous period of commercial activity.

2. Marketing and Advertising Contracts

Chinese marketing contracts — with advertising agencies, media outlets, or digital platforms operating in China — are essential. These should show the scale and duration of promotional activity directed at the Chinese market. Advertising spend figures should be broken down by year and by medium (television, print, digital, outdoor).

3. Media Coverage in Chinese Media

Articles, reviews, and mentions in Chinese-language media — newspapers, magazines, television broadcasts, and major online platforms such as Weibo, WeChat, Douyin, Xiaohongshu, or Baidu News — provide evidence that the brand has penetrated public awareness. International English-language press coverage carries very little weight.

4. Brand Recognition Including Pinyin

If the mark is a word mark, evidence should demonstrate that Chinese consumers recognise it — including by its Pinyin transliteration. Consumer surveys should be conducted in Mainland China, in Chinese, and should test whether respondents associate the sign with a specific commercial source rather than simply recognising the product.

5. E-Commerce Data

Given the dominance of e-commerce in China, data from platforms such as Tmall, JD.com, Taobao, and Pinduoduo can be highly persuasive. This includes sales rankings, store reviews, consumer feedback, and platform-generated sales reports.

6. Industry Recognition

Awards, certifications, or recognition from Chinese industry associations, government bodies, or trade fairs held in Mainland China demonstrate that the brand has achieved standing within the relevant trade.

The Factors CNIPA Considers

According to the 2025 Chambers China practice guide, the CNIPA evaluates acquired distinctiveness based on:

• The manner and effect of actual use — whether the sign has been used as a trade mark (not merely decoratively or descriptively).
• The continuous use in terms of time, territory, scope, and scale.
• The degree of awareness among the relevant public in Mainland China.
• Whether the sign has become uniquely associated with the applicant’s goods or services.

Practical Challenges for Foreign Brands

Foreign brand owners face several specific difficulties:

• Lack of Chinese tax invoices: Brands selling through distributors or cross-border e-commerce may not have direct fapiao evidence. Distributor invoices and customs import documents can partially fill this gap but are considered less persuasive.
• Evidence in Chinese: All evidence submitted to the TRAB must be in Chinese or accompanied by certified translations. Untranslated English documents are disregarded.
• Consumer surveys are expensive and complex: Surveys must be conducted by reputable firms in Mainland China, with transparent methodology, open-ended questions, and representative sampling.
• The mark must be used “as a trade mark”: Use as a product description, ingredient label, or decorative element does not contribute to acquired distinctiveness. The sign must be presented as a brand identifier.

The Appeal Process

Acquired distinctiveness arguments are typically raised at the TRAB appeal stage, after the CNIPA has refused the application. The TRAB is generally more receptive to evidence than the initial examiners, but the bar remains very high. If the TRAB upholds the refusal, the applicant may further appeal to the Beijing IP Court and then the Beijing High Court.

Strategic Recommendations

• Start collecting evidence from day one: If you plan to use a descriptive mark in China, begin documenting sales, advertising, and media coverage in Mainland China immediately.
• Localise your evidence: Ensure all documentation is tied to Mainland China — Chinese-language invoices, Chinese media, Chinese platforms.
• Use the mark as a trade mark: Ensure the sign is used prominently as a brand identifier in all marketing materials, packaging, and advertising.
• Consider filing a distinctive mark in parallel: While building evidence for a descriptive mark, also file an inherently distinctive mark to ensure you have registered protection in the meantime.

Key Takeaway

Acquired distinctiveness in Mainland China demands a level of proof that approaches well-known mark recognition. The evidence must be localised, extensive, in Chinese, and focused on demonstrating that the Mainland Chinese public recognises the sign as a brand — not just a description. For most foreign applicants, investing in an inherently distinctive mark is far more practical and cost-effective than trying to prove secondary meaning for a descriptive one. For those who must pursue this path, early preparation and meticulous documentation are non-negotiable.