The Tragedy of Lord George: When Is a Trademark Distinctive?

Articles
IP CHINA
the tragedy of lord george

By Joy Dong

For businesses, choosing a memorable trademark is often the first step toward building a successful brand. Yet not every creative name is automatically eligible for registration. One of the most fundamental requirements of trademark law is that a trademark must be distinctive: it must enable consumers to identify the commercial source of goods or services.

A recent retrial judgment by China's Supreme People's Court (SPC) provides valuable guidance on how distinctiveness should be assessed. In a case involving the trademark "乔治勋爵的悲剧" Jiǎozhì Xūn jué de bēijù ("The Tragedy of Lord George"), the Court overturned the decisions of both lower courts and the China National Intellectual Property Administration (CNIPA), offering a practical explanation of what makes a trademark registrable.

The Dispute

British fragrance house Penhaligon's applied to register the Chinese-language trademark "乔治勋爵的悲剧" for perfumes and other Class 3 cosmetic products. The mark corresponds to the name of one of the company's well-known fragrances, The Tragedy of Lord George.


 

CNIPA rejected the application on the ground that the trademark lacked distinctiveness. Both the Beijing Intellectual Property Court and the Beijing High People's Court upheld that decision.

However, upon retrial, the Supreme People's Court reached the opposite conclusion, holding that the trademark is capable of distinguishing the origin of the designated goods and therefore satisfies the distinctiveness requirement under the Trademark Law.

Distinctiveness Is About Consumer Perception

The judgment reinforces an important principle: whether a trademark is distinctive should always be assessed from the perspective of the relevant public for the goods or services concerned.


 

The Court explained that the analysis should not focus on whether a sign is long, unusual, or resembles the title of a book or story. Instead, the key question is much simpler: Can consumers recognize the sign as identifying the commercial source of the goods?

If the answer is yes, the trademark should generally be considered distinctive.

Three Factors That Matter

The SPC outlined a structured approach for assessing inherent distinctiveness.

1. The Trademark Itself

The first step is to examine the sign as a whole.


 

In this case, "乔治勋爵的悲剧" is not a common Chinese expression or everyday phrase. Its wording, structure, and overall impression are unusual enough to attract attention and serve as an identifier. Although the mark tells what appears to be a story, it does not directly describe the goods.

This highlights an important point: creative or narrative trademarks are not automatically non-distinctive simply because they consist of several words or resemble a title.

2. The Relationship Between the Trademark and the Goods

The Court also emphasized that distinctiveness depends heavily on the connection between the trademark and the products.

A useful principle emerging from the judgment is that:

  • the closer a trademark describes the characteristics, function, purpose, or quality of the goods, the weaker its distinctiveness;

  • conversely, the weaker that connection is, the more likely the trademark can function as a source identifier.

Here, the phrase "乔治勋爵的悲剧" says nothing about perfume. It does not describe fragrance, ingredients, quality, function, or intended use. As a result, consumers would not naturally view it as descriptive information about the products.

3. Industry Practice and Market Recognition

Finally, the Court considered how similar trademarks are used within the industry and how consumers perceive them.

The SPC noted that numerous perfume trademarks containing similarly styled fictional or story-like titles had already been registered in China. This suggested that such naming conventions are not unusual within the fragrance industry.


 

The Court also considered evidence showing that consumers had already come to recognize "乔治勋爵的悲剧" as identifying a specific perfume rather than merely describing a literary work or expression.

In addition, the applicant had already obtained registration in China for the English trademark "THE TRAGEDY OF LORD GEORGE" covering essentially the same category of goods. While this was not the decisive factor, it supported the overall conclusion that the Chinese version could likewise function as a trademark.

Why This Decision Matters

The judgment provides useful clarification for both Chinese and international brand owners.

First, it confirms that distinctiveness should not be evaluated mechanically. A trademark cannot be rejected simply because it is relatively long, contains a complete phrase, or evokes a fictional story.

Second, the decision reinforces that context matters. The same words may be descriptive for one type of product but highly distinctive for another. The assessment must always consider the relationship between the trademark and the designated goods or services.

Third, the Court demonstrates a practical understanding of modern branding. Many luxury brands, particularly in industries such as perfumes, cosmetics, fashion, and beverages, increasingly use storytelling and imaginative names to create emotional connections with consumers. Such branding strategies should not be disadvantaged merely because the trademark is more creative than conventional.

Practical Lessons for Brand Owners

The ruling offers several takeaways for businesses seeking trademark protection in China:

  • Creativity alone does not undermine distinctiveness. A trademark may consist of a phrase, fictional title, or narrative expression and still qualify for registration.

  • The key issue is whether the trademark describes the goods or instead helps consumers identify their commercial source.

  • Evidence of actual market recognition, consistent branding, and industry practice can play an important role if distinctiveness is challenged.

  • Brand owners introducing foreign-language trademarks into China should carefully consider their Chinese equivalents, as a well-chosen Chinese version may be capable of obtaining independent trademark protection.

Looking Ahead

Although every trademark application depends on its own facts, this retrial judgment represents a meaningful clarification of how China's highest court approaches inherent distinctiveness.

Rather than relying on rigid assumptions about the length or style of a trademark, the Supreme People's Court reaffirmed the fundamental purpose of trademark law: protecting signs that enable consumers to distinguish one business's goods from another's.

For companies developing distinctive brands in China, the decision is a welcome reminder that originality and creativity remain fully compatible with trademark protection, provided that consumers are able to recognize the mark as identifying the source of the goods rather than describing them.