A Chinese individual filed on February 25, 2019, an application requesting to invalidate a three-dimensional trademark no. 11460102 (“the Mark”), designating an array of goods including inter alia “aerated water; non-alcoholic energy drinks” in class 32, which is registered on May 7, 2014 by T.C.PHARMACEUTICAL INDUSTRIES CO.,LTD. Alleging that the Mark is a common packaging of the designated products thus is devoid of inherent distinctiveness, the petitioner cited absolute grounds (Articles 11.1.1 and 11.1.3 of the Trademark Law) to invalidate the registration of the Mark.

The invalidation application was dismissed by China Intellectual Property Administration (CNIPA) on March 25, 2020.

The CNIPA referenced the Trademark Examination and Review Criteria for the assessment of distinctiveness of 3D trademark, specifically that consists of a 3D sign and other distinctive 2D signs: such a 3D trademark shall be deemed inherently distinctive and registrable as a whole, though the publication of preliminary approval and registration certificate shall note that its protection scope is to be limited to the distinctive 2D portion.

The CNIPA found that the Mark is composed of 2D word “Redbull and its Chinese equivalent”, a red bull device and a 3D device of a beverage can. The 3D beverage can is a common packaging of the designated goods, which cannot function as a source identifier and is devoid of distinctiveness. The 2D elements, which are not generic names or mere description of the function or any other characteristics of the designated goods, have through use acquired certain reputation and enhanced its level of distinctiveness in beverage industry. In a nutshell, the Mark shall be deemed as distinctive and registrable in its entirety and the petitioner adduced no evidence to prove that the Mark has become the generic packaging or name of the beverage industry, thus shall not be invalidated.

 trademark no. 11460102

Contributed by: Ye Cai