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Supreme Administrative Court set Guideline for Generic Term against Trademark Use
The Supreme Administrative Court set a guideline at its judgement on a trademark revocation litigation case on 27 August 2015 to determine whether a registered trademark has become a generic term.
According to the Trademark Act, where a trademark has become a generic mark or term, or common shape for the designated goods or services, the Intellectual Property Office (IPO, the Patent and Trademark Office) shall revoke the registration of the trademark at its discretion or by requests from any third party. Nonetheless, the Trademark Act is silent on the issue of how to determine whether a trademark has become a generic mark or term and then loses its distinctiveness as a trademark.
The Supreme Administrative Court pointed out that once a trademark is granted registration, the criteria of determining whether such a trademark has lost its distinctiveness as trademark and become a generic term should be highly strict. The party that claims such a trademark has become a generic term should bear the burden to submit concrete evidence to approve that the majority of consumers has recognize such a term as generic without the function as an indication of the source of goods or services any more.