Non-Standard Trademark Use: Register Something, but Use Something Else. The Interpretation of Beijing High Court

13 May 2026

By Xiaoxue Xiang

Traditionally, the assessment of trademark similarity has focused on the mark as registered. But what happens when a trademark that appears clearly distinguishable at the time of registration is later used in a way that deliberately moves closer to another brand?

A recent ruling by the Beijing High People’s Court provides a clear answer: how a trademark is actually used in the market is critically important and may directly affect the outcome of a case.

Case Background: From “APART OF ME” to “APOM”

This case arose in the highly competitive jewelry industry.

A company associated with the well-known brands “APM” and “APM MONACO” filed an invalidation action against another company’s registered trademark “APART OF ME”.

From the perspective of the registered marks alone, the differences were quite apparent. The first-instance court therefore concluded that the marks were not similar and rejected the invalidation request.

However, on appeal, the court shifted its focus to the actual use of the disputed trademark.

Evidence showed that the registrant frequently shortened “APART OF ME” to “APOM” on various e-commerce platforms. In both visual appearance and pronunciation, “APOM” is highly similar to “APM.”

This shift from the registered form to actual use became the turning point of the case.

A More Market-Oriented Approach to Similarity

The Beijing High Court did not limit itself to a mechanical comparison of trademark representations. Instead, it emphasized that similarity assessments must reflect real market conditions.

Consumers do not compare trademarks side by side in detail. Rather, they rely on general attention and overall impressions, focusing on elements such as appearance, pronunciation, and memory.

If a trademark is not used in its registered form, but is modified in practice to closely resemble a prior mark, it can easily cause confusion among consumers.

In such cases, even if the marks appear distinct at registration, they may still be deemed similar.

Brand Recognition and Intent Matter

The court also considered the reputation of the “APM” brand.

Before the disputed trademark was filed, “APM” had already gained a certain level of recognition in the relevant market. Given that both parties operated in the same industry and in overlapping geographic areas, the registrant should reasonably have been aware of the prior brand.

Combined with the practice of simplifying the mark to “APOM,” the court concluded that the registration and use were not made in good faith.

This case shows that subjective bad faith, often difficult to prove, can be inferred from market context and actual use.

In essence, the similarity test is no longer confined to the mark itself, but returns to a practical question: Will this use cause confusion or misidentification among ordinary consumers?

Second-Instance Reversal: Stronger Protection for Trademark Owners

The appellate court ultimately overturned both the first-instance judgment and the original decision of the China National Intellectual Property Administration (CNIPA), ordering a re-examination of the case.

This outcome demonstrates that courts are placing increasing weight on real commercial use, rather than relying solely on formal comparisons at the registration stage.

Practical Implications for Businesses

This case provides important guidance, particularly for companies in highly competitive consumer markets:

Achieving differentiation at the registration stage alone is not sufficient.
If actual use deliberately approaches a well-known brand, the trademark may still face invalidation.
Enforcement strategies should go beyond comparing registered marks.
Evidence of how a competitor uses its mark, on e-commerce platforms, in advertising, or in product displays, is often critical.

Brand recognition strengthens enforcement.

If it can be shown that the other party knowingly imitated a prior brand, claims are more likely to succeed.

A Broader Trend in Chinese Trademark Practice

This case reflects a broader trend in China’s trademark adjudication. While adhering to the framework of the Trademark Law, courts are increasingly giving weight to market realities and factual evidence.

Rather than relying solely on formal comparisons of registered marks, courts are placing greater emphasis on how trademarks are actually used in the marketplace, as well as on consumer perception and the likelihood of confusion.

For international businesses, this is a positive development. It indicates that China’s trademark protection regime is becoming more aligned with international practices, with a stronger focus on real-world conditions and consumer experience.

A trademark is no longer just a sign on a registration certificate: it is what it becomes in the marketplace. When actual use creates a different market effect, courts will base their decisions on that reality.