The distinctiveness is one of the key issues of whether a trademark is registrable. In order to review the issue of distinctiveness, the Intellectual Property Office has set a guide named "Trademark Examination Guidelines on Distinctiveness of Trademarks".

 

According to the guideline, factors for determining distinctiveness including the relationship between the trademark and the designated goods or services, the use by competitors, and applicant's use and actual trading situations. As to the evidence admitted for supporting the acquired distinctiveness include (1) the manner of use of the trademark, the length of time of such use and the use by competitors in the same trade, (2) sales volume, sales figures and market share, (3) advertisement volume, advertisement expenses, materials for promotional activities, (4) sales territory, market distribution, points of sale or display, (5) registration certificates issued in different countries, (6) market survey reports, and (7) other evidence of acquired distinctiveness.

 

Specifically for the market survey reports, the guideline stipulates that in considering the reference value of a market survey report, the following matters should be taken into account: (1) credibility of market survey companies or organizations, (2) survey methodology, (3) design of questionnaires, (4) Correlation between content and conclusion, (5) Miscellaneous.

 

Though "market survey reports" appear to be acceptable for reviewing the issue of distinctiveness, such reports are seldom accepted as evidence due to the defects of the reports.

 

In the administrative suit of a trademark registration application case in 2014, the Intellectual Property Court accepted a market survey report in reviewing the issue of the distinctiveness of the three-dimensional (3D) trademark, which is a 3D bottle design with colors combination, and then rendered the judgment in 2014 in favor of this trademark applicant. The IP Court had thoroughly reviewed the relevant factors and contents of the market survey report and considered such a report to be acceptable.