(By You Yunting) Recently, Mr. Luo Yonghao, a well-known Chinese entrepreneur and livestreamer, criticized on Weibo that a “120W charger” label was potentially misleading consumers, sparking widespread public attention. Similarly, controversy has resurfaced around two trademarks owned by Jinmailang, a major Chinese food company: “手打” (Chinese Pinyin: “Shou Da”, literally “Hand-Kneaded”) and “一袋半” (Chinese Pinyin: “Yi Dai Ban”, literally “One and a Half Packets”). Although the “120W” mark was never registered, Jinmailang’s “手打” and “一袋半” trademarks were successfully registered. During the invalidation proceedings, the Trademark Review and Adjudication Board (TRAB) found both marks deceptive, but the Beijing Higher People’s Court reversed these rulings on appeal. This article will analyze the two cases and their underlying legal issues.
Under China’s Trademark Law, a third party may petition the TRAB under the China National Intellectual Property Administration (CNIPA) to invalidate a registered trademark on the grounds that it does not meet legal requirements for registration, such as lacking distinctiveness or bearing deceptive. An administrative lawsuit may be filed with the Beijing Intellectual Property Court against the decision of the TRAB, with a further appeal possible to the Beijing Higher People’s Court, whose second-instance judgment is final and binding. In other words, any party dissatisfied with prior proceedings may litigate all the way up to the Beijing Higher People’s Court. Both the “手打” and “一袋半” trademarks, despite being registered, faced such invalidation challenges.
I. The “手打” Trademark: From “Deceptive” to “Not Misleading”
The TRAB ruled that the “手打” trademark, when used on noodles and pastry goods, directly describes the production process and technical characteristics of the goods; when used on instant noodle products, the term is deemed exaggerated and deceptive, as it may mislead consumers into believing that the instant noodles are handmade, thereby causing adverse social impact. Accordingly, the TRAB invalidated the trademark for instant noodles, noodles, and pastry goods.
This conclusion was entirely overturned on appeal. In its second-instance judgment (Case No. (2016) Jing Xing Zhong 1378), the Beijing Higher People’s Court held that the relevant public generally understands instant noodles to be machine-made, not handmade, and that Jinmailang has continuously registered, extensively promoted, and used the trademark since 2002, establishing a fixed association between “手打” and its instant noodle products, which made consumer confusion about the production process unlikely. At the same time, the court found that “手打” as a Hebei Province well-known trademark repeatedly recognized through long-term and extensive use, has acquired a stable link with the designated goods (noodles and pastry goods), enabling it to function as a source identifier and thus not violating the relevant provisions of the Trademark Law. The court therefore revoked the TRAB’s original ruling, a final and binding judgment that became the legal cornerstone for the “手打” mark’s continued existence.
II. “一袋半”: Registration Denied, but Deceptiveness “Cleansed”
The “一袋半” trademark followed a similar path but reached a different outcome. The TRAB ruled that this trademark, when registered for goods such as instant noodles and noodles, not only directly describes the weight and quantity of the goods, lacking distinctiveness, but is also deceptive, potentially misleading the public about the product’s weight. The TRAB consequently invalidated the trademark, a decision affirmed by the Beijing Intellectual Property Court in the first instance.
On appeal, the Beijing Higher People’s Court reversed the finding of deceptiveness on the judgment (Case No. (2022) Jing Xing Zhong 2515). The court noted that Jinmailang’s promotion of “一袋半” was in comparison to its own earlier product version—i.e., “half a packet more than before the upgrade”—and therefore contained no factual misrepresentation. Although Jinmailang had once reduced the weight of its instant noodle pack by 10 grams, the weight after reduction was still greater than that of ordinary instant noodle pack. Meanwhile, the public’s general understanding of “一袋半” is simply “larger in quantity than ordinary instant noodles”, without precise calculation of the weight. Therefore, the mark was not deemed deceptive. The court, nevertheless, upheld the finding that “一袋半” lacked distinctiveness and thus could not be registered.
III. Where Does the Problem Lie?
Reviewing these two judgments, we can identify some questionable aspects in the courts’ trademark examination logic:
First, the “手打” case presents a logical dilemma in assessing distinctiveness. Marks like “手打” and “一袋半” differ considerably from those that are inherently descriptive but have acquired distinctiveness through use. For example, the registration of “两面针” (Chinese Pinyin: “Liang Mian Zhen”, literally “Two-Sided Needle”) and “草珊瑚” (Chinese Pinyin: “Cao Shan Hu”, literally “Coral Grass”) for toothpaste products is reasonable since the terms, as toothpaste ingredients, will not mislead consumers. By contrast, the literal meaning of “手打” is that the noodles are made by hand, which is clearly deceptive or misleading to consumers. The court’s rationale—that the public knows instant noodles are machine-made—actually lowers the threshold for reviewing exaggerated claims. Upholding such trademark registrations undoubtedly monopolizes public vocabulary, undermining public interests.
Second, the “一袋半” ruling reflects a retreat and compromise on the finding of deceptiveness. Compared with the “手打” case, the Beijing Higher People’s Court made notable progress in the “一袋半” case by clearly ruling that the mark lacks distinctiveness and affirming the cancellation of its registration. Nevertheless, the court still rejected the TRAB’s finding of deceptiveness. The explanation of “half a packet more than before the upgrade” is often known only to company insiders or consumers who have carefully read the advertisements. The ordinary consumers’ immediate impression in front of shelves remains: “This package contains one-and-a-half ordinary packs”. Even after a 10-gram weight reduction, the court still held that consumers would not make exact calculations and comparisons and thus would not be misled—a conclusion that seems divorced from the public’s common sense.
IV. Conclusion: The Unignorable Social Impact
In these two judgments, the Beijing Higher People’s Court’s “not deceptive” finding has carried far-reaching practical consequences. In market regulation enforcement, such judicial findings by higher courts directly provides a “legal shield” for Jinmailang’s use of these controversial terms. When local authorities attempt to impose administrative penalties for the use of trademarks potentially misleading consumers, the company can cite these judicial findings as a defense.
The public, however, saw through it. Under mounting public pressure, Jinmailang recently announced the discontinuation of all products bearing the “手打” trademark. This demonstrates that rulings divorced from the public’s common sense ultimately fail the market test. The legislative purpose of the trademark law is not only to protect trademark owners, but also to safeguard consumers’ right to accurate information and a fair competitive market order. When judicial review becomes overly tolerant, equating “actual use” with “proper use”, or “consumers do not calculate precisely” with “consumers are not misled”, the trademark system risks devolving into an arena for wordplay. This not only undermines the spirit of the law but also erodes public trust.
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