By Skye Zou
In trademark law, distinctiveness is the foundation of protection. A sign functions as a trademark only to the extent that it identifies the commercial origin of goods or services.
Yet this function is not static. Over time, market forces, language usage, and commercial practices may erode a mark’s ability to distinguish source. In extreme cases, a once-protected trademark may evolve into a generic term, losing exclusivity altogether.
A recent ruling by the Shenzhen Intermediate Court vividly illustrates how Chinese courts are closely monitoring the dynamic loss of trademark distinctiveness amid the e-commerce boom. The dispute, centering on the musical instrument brand "Ding Dang," serves as a practical lesson in "trademark protection warfare" for all businesses operating in China.
From Trademark to Generic Term: The Genericide Crisis
The concept of trademark “degeneration” (often referred to internationally as genericide) describes the process by which a sign that once indicated source becomes understood by the public as the name of a type of product. Classic global examples include “Aspirin” and “Cellophane,” both of which lost trademark protection in certain jurisdictions after becoming synonymous with the underlying goods.
This inquiry is inherently factual and market-oriented. It requires courts to move beyond formal registration and examine how language is actually used in commerce.
The “叮当小钟琴” Case: A Market-Driven Assessment
In the Shenzhen case, the dispute centered on the use of the term “叮当小钟琴” (dīng dāng xiǎo zhōngqín, onomatopoeic for the sound of a glockenspiel) in online product listings. The trademark owner argued that such use infringed its registered mark “叮铛.” The defendant countered that “叮当小钟琴” had become a commonly used product name within the industry.
The appellate court ultimately sided with the defendant, not by invalidating the trademark itself, but by recognizing that the contested term functioned as a generic descriptor in the marketplace.
The Central Role of Consumer Perception
At the heart of the analysis lies the concept of the “relevant public.” Under Chinese law, this includes not only end consumers but also participants in the supply chain, such as distributors and retailers. Their collective understanding determines whether a sign retains its trademark function.
This approach aligns with international practice. Courts in many jurisdictions emphasize that trademark rights cannot be divorced from consumer perception. If the public no longer associates a sign with a single source, the legal justification for exclusivity weakens.
The Responsibility of the Trademark Owner
The case also highlights an often-overlooked aspect of trademark law: the role of the rights holder in preserving distinctiveness.
Trademarks do not maintain their strength automatically. Especially where a mark has descriptive elements, its owner must actively reinforce its brand identity. This includes consistent use as a trademark (rather than as a product name), as well as timely enforcement against misuse by third parties.
Failure to do so can have cumulative effects. When competitors widely adopt a term, and the rights holder does not intervene, the market may gradually shift its understanding.
E-commerce Accelerator: Fast-Forwarding Genericide by a Decade
The digital marketplace adds a new dimension to this issue. On major platforms, product visibility depends heavily on search optimization. Sellers are incentivized to use terms that match consumer queries, often favoring descriptive or commonly recognized expressions.
If a trademark coincides with such a term, it may be repeatedly used as a keyword across thousands of listings. Algorithms amplify this repetition, reinforcing the association between the term and the product category rather than a specific brand.
Balancing Private Rights and Public Language
From a policy perspective, cases like this reflect a fundamental tension. Trademark law seeks to protect business investment in branding, but it must also preserve the availability of language for fair competition.
Allowing a single company to monopolize a term that the market uses generically would restrict other businesses’ ability to describe their products. Conversely, denying protection too readily could undermine incentives to build brands.
Chinese courts increasingly address this tension by grounding their analysis in market reality. Rather than adopting rigid formalism, they ask a practical question: how do people actually use and understand this term today?
Implications for International and Chinese Businesses
Distinctiveness must be maintained through use, strategy, and vigilance.
At the same time, businesses accused of infringement should not assume that similarity automatically leads to liability. If a term has genuinely become a common name in the eyes of the relevant public, its use may fall outside the scope of trademark exclusivity.
Conclusion
Trademark protection is not a static entitlement but a reflection of ongoing market recognition. The Shenzhen decision underscores a broader principle: the strength of a trademark ultimately depends on how it lives in the marketplace.
For legal practitioners and brand owners, this means that the most important battleground is not only the registry, but the everyday language of commerce. In an era shaped by digital platforms and rapid information flow, managing that language and the perception it creates has become central to preserving trademark value.