Tutorial on Determining Similarity of Graphic Trademarks in China

December 4, 2025 - By Shawn

Chapter 1 Introduction: Institutional Framework and Practical Value of Graphic Trademark Similarity Examination

1.1 Uniqueness and Complexity of Graphic Trademark Examination

Within China’s trademark legal system, determining the similarity of graphic trademarks stands as one of the most technically challenging areas of examination. Unlike text trademarks, which can be comparatively objectively compared based on elements such as pronunciation, form, and meaning, the assessment of similarity for graphic trademarks heavily relies on the examiner’s subjective perception and professional experience, involving a comprehensive evaluation of multi-dimensional factors including aesthetics, psychology, and market perception. The National Intellectual Property Administration (CNIPA) has repeatedly emphasized in examination practice that judging the similarity of graphic trademarks is extremely difficult, and the principle of “case-by-case determination” must be adhered to. This means strictly returning to the specific circumstances of the case under examination rather than simply applying existing cases.

The examination of graphic trademarks not only determines the success or failure of a trademark registration application but also directly impacts an enterprise’s brand strategy layout, market competition order, and the protection of consumer interests. An accurate similarity judgment can effectively prevent market confusion and maintain fair competition; conversely, a misjudgment may result in the improper rejection of a trademark that deserves protection or the authorization of an approximate trademark that should not be registered, triggering subsequent administrative disputes and infringement lawsuits. Therefore, in-depth understanding and mastery of the criteria and operational procedures for determining the similarity of graphic trademarks hold crucial practical significance for trademark agents, corporate legal personnel, and intellectual property practitioners.

1.2 Legal Origins and Guidance System

The main legal bases for determining the similarity of graphic trademarks in China include the provisions on trademark similarity in Articles 30 and 31 of the Trademark Law of the People’s Republic of China, as well as the systematic regulations in Chapter 5 “Examination and Trial of Trademark Identity and Similarity” of the Trademark Examination and Trial Guidelines (2021 Edition). Among these, the Trademark Examination and Trial Guidelines, although not possessing legal effect as an internal operating procedure of the trademark examination authority, holds mandatory binding force in examination practice and serves as the core document for understanding and predicting examination results.

According to the chapter structure of the Guidelines, the examination of graphic trademark similarity falls under Section 5.2 “Examination of Graphic Trademark Similarity” within Chapter 5 “Examination and Trial of Trademark Identity and Similarity”. This section systematically stipulates the comparison methods, consideration factors, and specific application scenarios for graphic trademark similarity, forming the direct guidance for examiners in their daily work.

Chapter 2 Core Principles for Determining Similarity of Graphic Trademarks

2.1 Principle of Likelihood of Confusion: Fundamental Criterion

The fundamental criterion for judging whether graphic trademarks are similar lies in whether they are likely to cause relevant members of the public to be confused or misled regarding the source of goods or services. This principle is the essence of trademark law and runs through the entire process of similarity determination. The term “confusion” not only includes actual confusion but also the possibility of confusion; it not only refers to direct confusion about the source of goods but also misrecognition of associated relationships.

In practice, the judgment of the likelihood of confusion requires comprehensive consideration of the following factors:

Definition of the scope of relevant public: The relevant public refers to consumers and business operators related to the goods or services identified by the trademark. The level of attention, cognitive ability, and consumption habits of the relevant public vary significantly across different fields of goods or services. For example, the relevant public for high-end luxury goods typically has higher discrimination ability and attention, while the relevant public for daily consumer goods relatively relies on the overall visual impression.
Degree of association between goods or services: Even if the trademark graphics themselves are relatively similar, if the designated goods or services are vastly different, the relevant public will generally not be confused. For instance, a graphic trademark used on “medical devices” and a similar graphic used on “catering services” have extremely low likelihood of confusion due to completely different consumption scenarios and channels.

2.2 Principle of Combining Overall Observation and Comparison of Key Parts

The Trademark Examination and Trial Guidelines clearly stipulate that the determination of graphic trademark similarity shall adopt the method of “overall observation and comparison of main parts”. This dual-track approach embodies the organic combination of macro and micro perspectives:

Overall observation: This refers to observing the disputed trademarks as a complete visual whole to determine whether the overall visual impression they convey to the relevant public is similar. The overall appearance, design style, and composition concept of the graphic trademark are the primary considerations. Even if there are differences in partial details between two trademarks, if there is no substantial difference in the overall visual effect, they may still be identified as similar trademarks.
Comparison of key parts: On the basis of overall observation, this involves focusing on comparing the parts of the trademark that play a major role in identification. The key part of a graphic trademark is usually the part that is most distinctive and attracts the attention of the relevant public. For example, in a graphic trademark composed of multiple elements, a unique shape or core pattern often serves as the distinctive identification part. If the key parts are highly similar, even if there are differences in non-distinctive parts, it is highly likely to cause confusion.

In practice, examiners first conduct an overall observation to form a preliminary impression. If the overall impression is not similar, there is usually no need to proceed to the comparison of key parts; if the overall impression is similar or in a vague area, a further analysis of the similarity degree of the key parts is required. For example, if two graphic trademarks both present an overall structure of “circle + centrally symmetric pattern”, the overall observation impression is similar; a further comparison reveals that the central patterns are both unique “abstract horse head” shapes, with only slight differences in line thickness. In this case, the key parts are highly similar, and the trademarks are considered similar.

2.3 Principle of Isolated Comparison

Isolated comparison is a basic procedural requirement for trademark similarity determination. It means that during the comparison, the two trademarks should not be placed side by side for detailed comparison. Instead, it should simulate the real scenario where consumers identify trademarks based solely on their memory impression in the market environment. In the actual consumption process, the relevant public often comes into contact with different trademarks at different times and locations, rather than comparing them simultaneously.

The practical significance of isolated comparison lies in: it emphasizes the importance of the overall impression and weakens the impact of minor differences. When trademarks are observed in isolation, some detailed differences that are obvious when placed side by side become less noticeable, while the overall outline and main features become the key to identification. For example, when two graphic trademarks are placed side by side, differences in color depth and a two-line difference can be noticed. However, in an isolated state, the relevant public will only remember the overall impression of “a circular red background with a white flying bird pattern”, which may lead to confusion.

2.4 Principle of Case-by-Case Determination

The CNIPA has repeatedly emphasized the principle of “case-by-case determination” in the examination of graphic trademarks. This means that the judgment of each case should be based on its unique factual basis, and it is not allowed to simply apply previous cases by analogy. This principle stems from the infinite creativity and complexity of graphic trademarks—even for similar design themes, different artistic processing methods, color applications, and composition proportions may result in completely different visual effects and trademark identification functions.

The implications of the case-by-case determination principle for practical operations are as follows:

Avoid mechanical comparison: It is not possible to determine similarity solely based on the fact that trademarks contain the same elements (e.g., “both have star patterns”). Instead, it is necessary to analyze the position, expression form, and visual effect of such elements in the overall design.
Attach importance to differences in design details: In individual cases, seemingly minor design differences may have a decisive impact on the overall visual effect. For example, the same “mountain peak” pattern may produce completely different commercial impressions when presented in a geometric abstract style versus a realistic oil painting style.
Dynamically consider market factors: The distinctiveness, popularity, and usage of a trademark need to be dynamically evaluated in each case, and these factors directly affect the cognitive intensity of the relevant public and the likelihood of confusion.

Chapter 3 Specific Criteria and Factor Analysis for Determining Similarity of Graphic Trademarks

3.1 Comparison of Composition Elements

Composition serves as the framework of a graphic trademark, determining its basic form and visual order. Examiners conduct refined comparisons from the following dimensions:

3.1.1 Basic Geometric Shapes

The outer contour shape of a graphic trademark is the primary identification feature. Basic geometric shapes such as circles, squares, triangles, and diamonds, or complex shapes evolved from their combinations, form the “first impression” of the trademark. For example, if two trademarks both have a “shield-shaped” appearance, they are likely to be regarded as similar even if their internal patterns differ. However, if one is “shield-shaped” and the other is an “irregular cloud shape”, the overall framework differences are significant, and they are generally not considered similar.

3.1.2 Core Pattern Elements

The core pattern within a trademark is the most distinctive part. Examiners focus on analyzing the following aspects:

Pattern type: The similarity degree varies among different types of patterns such as animals, plants, buildings, and abstract symbols. For example, “running horses” and “flying horses” are likely to be identified as similar because they both belong to equine animals and have similar postures; in contrast, “running horses” and “ferocious lions” are generally not similar due to the different types of animals.
Stylistic characteristics: Different artistic styles such as realism, cartoon, geometric abstraction, and freehand ink wash result in significant differences. For example, the same “phoenix” pattern in a paper-cut style and a 3D three-dimensional rendering style are vastly different and do not constitute similarity.
Detailed features: Details such as the direction the head faces, the shape of the tail, and body movements are crucial for distinguishing similar graphics. For example, an owl looking to the left and an owl looking to the right are usually still regarded as similar if other features are highly similar, as the relevant public finds it difficult to accurately remember the detail of the direction the head faces.

3.1.3 Lines and Strokes

The thickness, curvature, solidity or faintness of lines, as well as the texture of strokes (such as brush strokes, pencil sketches, and digital vector lines) are all important considerations. Thick and bold lines convey a sense of strength, while delicate lines reflect a sense of refinement, resulting in distinct visual styles. For example, a graphic trademark of the character “mountain” (山) using “bold brush strokes” and another graphic of the same character using “thin line geometric composition” are unlikely to cause confusion despite similar outlines, due to the different line styles.

3.2 Comparison of Color Elements

Color is the most visually striking element in a graphic trademark, but it has unique characteristics in similarity determination.

3.2.1 Special Rules for Color – Combination Trademarks

For a graphic trademark with specified colors, color is an integral part of the trademark and must be considered during comparison. If two trademarks have the same pattern but different color combinations, they are generally not identified as similar. For example, the “red cross” pattern (red + white) and the “green and white cross” pattern are not similar due to the different color combinations.

3.2.2 Graphic Trademarks with Unspecified Colors

If no color is specified during the application (i.e., a black-and-white design), any color can be used in actual use, and only the pattern itself is compared during the examination, without considering color factors. This means that for a black-and-white applied “star + moon” pattern, even if others use the same pattern with completely different colors, it may still constitute similarity.

3.2.3 Psychological Implications of Colors and Industry Practices

Certain colors have universal or functional uses in specific industries (e.g., green is often used in the environmental protection industry, and blue is commonly used in the technology industry). The use of such colors cannot enhance the distinctiveness of the trademark. During the examination, it is necessary to consider whether the color belongs to the common color scheme of the industry; if so, the weight of the color’s impact on the similarity determination is reduced.

3.3 Evaluation of Overall Visual Effect

The overall visual effect serves as the “final arbiter” in determining the similarity of graphic trademarks, comprehensively reflecting the synergistic effect of elements such as composition, color, and style.

3.3.1 Identification of Visual Center

Every graphic trademark has a visual center—the area that most attracts the eye. Examiners determine whether the visual centers of the two trademarks overlap and whether the visual information they convey is similar. For example, a trademark with the visual center designed on the “central lion’s head” and another with the visual center on the “bottom ribbon decoration” are less likely to cause confusion despite similar overall layouts, due to the different points of attention.

3.3.2 Consistency of Aesthetic Style

Different aesthetic styles such as modern minimalism, retro luxury, sense of technology, and naturalism are important dimensions for distinguishing graphic trademarks. For example, an APP icon using a “minimalist flat design” and a similar icon using a “skeuomorphic three-dimensional design” do not constitute similarity even if they represent the same object (e.g., a “camera”), due to the significant differences in design style.

3.3.3 Dynamic and Static Effects

For graphic trademarks with dynamic designs (such as animated trademarks in GIF format), the similarity of their dynamic effects must be considered. Elements such as the rhythm of the animation, movement trajectory, and key frame images are all comparison factors. There is no such comparison between static graphic trademarks.

3.4 Consideration of Distinctiveness and Popularity

The distinctiveness and popularity of a trademark act as an “amplifier” or “buffer” influencing the similarity determination.

3.4.1 Regulatory Role of Distinctiveness Level

Strong inherent distinctiveness: For trademarks composed of invented graphics or highly unique designs, their scope of protection is broader, and the criteria for determining similarity are more stringent. For example, for a completely abstract and unprecedented geometric composite graphic, others may be easily identified as infringing if they adopt a similar composition.
Weak distinctiveness: If a graphic trademark contains common graphics of goods (e.g., a “red wine bottle” graphic used on wine products) or descriptive graphics (e.g., an “ear of wheat” graphic used on flour products), the scope of its exclusive rights is limited, and a higher degree of similarity is required to be identified as similar.

3.4.2 Impact of Popularity

A graphic trademark that has established high popularity in the market may be identified as similar even if its similarity to another trademark is not extremely high, due to the “goodwill spillover” effect, in order to prevent free-riding behavior. For example, the “check mark” graphic of “Nike” has relatively weak distinctiveness in its simple line design, but it has obtained strong protection due to its high popularity. Any similar “check mark” design used on sports shoes may be identified as infringement.

Chapter 4 Complete Operational Procedures for Determining Similarity of Graphic Trademarks

Based on the specifications of the Trademark Examination and Trial Guidelines and examination practice, the determination of graphic trademark similarity can be broken down into the following six-step operational process:

Step 1: Determine the Basis and Scope of Comparison

1.1 Identify the Prior Trademark and the Trademark Under Examination

Determine the registration number, design, and categories of goods/services for which the prior right trademark is approved.
Identify the application number, design, and categories of goods/services designated for the trademark under examination.
Retrieve the official electronic designs of the two trademarks to ensure consistent resolution and color mode for accurate comparison.

1.2 Determine the Similarity of Goods/Services

Based on the Nice Classification of Similar Goods and Services, judge whether the goods or services designated by the two trademarks are identical or similar. If they do not belong to similar goods/services, there is usually no need to conduct a graphic similarity determination, and a conclusion of non-similarity can be directly drawn.

1.3 Determine the Scope of the Relevant Public

Define the specific group of the relevant public (such as ordinary consumers, professional purchasers, and specific age groups) according to the nature of the goods/services, and evaluate their general cognitive ability and level of attention.

Step 2: Conduct Overall Observation to Form a Preliminary Impression

2.1 Isolated Observation

Print or display the trademark under examination and the prior trademark on different pages respectively. Examiners simulate the perspective of consumers to observe the two trademarks independently in an isolated state and record the first impression.

2.2 Comparison of Overall Outline

Observe whether the outer contour shapes (circle, square, irregular shape, etc.) of the two trademarks are the same or highly similar.
Judge whether the overall composition style (symmetry, balance, radiation, concentration, etc.) is consistent.
Record the similarity score of the overall visual effect (a 5-point scale can be adopted: 1 point = extremely different, 5 points = highly similar).

2.3 Preliminary Conclusion

If the overall outline and style are significantly different (score 1-2), a conclusion of non-similarity can be directly drawn; if they are highly similar (score 4-5), proceed to Step 3 for comparison of key parts; if in a vague area (score 3), the determination shall be made by combining the comparison of key parts and comprehensive factors.

Step 3: Compare Key Parts and Decompose Elements

3.1 Identify Key Parts

Analyze the most distinctive part of the graphic trademark, which is usually the most unique, complex, or recognizable area.

For example, in a combined trademark of “graphic + text”, if the graphic part occupies a major visual area and has a unique design, the graphic is the key part; if the text is a well-known trade name, the text may constitute the key part.

3.2 Decompose and Compare Elements

Decompose the two trademarks into the following elements for item-by-item comparison:

Comparison Elements	Comparison Points	Similarity Assessment
Core Pattern	Pattern theme, stylistic characteristics, posture and orientation	High/Medium/Low
Line Features	Thickness, curvature, solidity or faintness, stroke texture	High/Medium/Low
Color Application	Number of colors, matching method, light-dark contrast	High/Medium/Low
Spatial Layout	Element position, proportional relationship, visual center	High/Medium/Low
Special Effects	Three-dimensional effect, gradient, transparency, dynamic effect	High/Medium/Low

3.3 Comprehensive Assessment of Key Part Similarity

If most elements (more than 3 items) are rated as “high similarity”, the key parts are highly similar; if most elements are rated as “low similarity”, the key parts are significantly different.

Step 4: Conduct Cognitive Testing of the Relevant Public

4.1 Simulate the Perspective of Consumers

Examiners need to stand in the position of the relevant public and consider the following questions:

When seeing the trademark under examination in an isolated state, will it remind them of the prior trademark?
Is there a possibility of believing that both trademarks originate from the same operator or have an investment, licensing, or associated relationship?
Will it cause misrecognition regarding the quality or source of the goods/services?

4.2 Weighted Assessment of Factors Affecting Likelihood of Confusion

Evaluate the following factors affecting the likelihood of confusion:

Trademark distinctiveness: The stronger the distinctiveness, the higher the likelihood of confusion (weight: +20%).
Trademark popularity: The higher the popularity, the higher the likelihood of confusion (weight: +20%).
Degree of goods similarity: The higher the degree of similarity, the higher the likelihood of confusion (weight: +30%).
Degree of sales channel overlap: The higher the channel overlap, the higher the likelihood of confusion (weight: +15%).
Degree of consumer group overlap: The higher the group overlap, the higher the likelihood of confusion (weight: +15%).

4.3 Conclusion on Likelihood of Confusion

Based on the weighted assessment, if the likelihood of confusion exceeds a threshold (e.g., 70%), it tends to be identified as similar; if it is below the threshold, it tends to be identified as non-similar.

Step 5: Examine Special Cases and Exceptions

5.1 Examination of Coexistence Agreements

If the applicant submits a coexistence agreement with the owner of the prior trademark, it is necessary to examine the authenticity and legality of the agreement and evaluate whether coexistence will still cause damage to public interests (such as significant consumer confusion).

5.2 Examination of the Usage Status of the Prior Trademark

If the prior trademark has not been used for three consecutive years, its right stability is questionable, and the examiner may tend to not identify it as similar. However, it should be noted that the revocation procedure and the registration examination procedure are independent, and non-use is not an absolute reason for non-similarity.

5.3 Good-Faith Use and Historical Factors

If the trademark under examination has been used in good faith for many years and formed a stable market pattern, consideration may be given to not identifying it as similar to maintain market order. However, this factor has limited impact in the registration examination stage and mainly plays a role in the opposition and invalidation declaration stages.

Step 6: Conduct Comprehensive Judgment and Form a Conclusion

6.1 Weigh Various Factors

Examiners need to comprehensively weigh factors such as the overall observation impression, the similarity of key parts, the cognition of the relevant public, and special cases to form a final judgment. This is not a simple mathematical calculation but a comprehensive discretion based on experience and logic.

6.2 Prepare Examination Opinions

The examination opinions should clearly elaborate on the following:

Display of the designs of the two trademarks.
Determination of the similarity of goods/services.
Specific analysis of overall observation and comparison of key parts.
Demonstration process of the likelihood of confusion.
Final conclusion (similar/non-similar) and applicable laws.

6.3 Conclusion Types

Constituting similar trademarks: Reject the application in accordance with Article 30 of the Trademark Law.
Not constituting similar trademarks: Publish the preliminary approval announcement.
Partial similarity: If the trademark designates multiple categories of goods, it may be partially rejected and partially approved.

Chapter 5 In-Depth Analysis of Typical Cases and Practical Deduction

Case 1: Similarity Determination of Animal-Shaped Graphic Trademarks – “Running Horse Graphic” vs. “Flying Horse Graphic”

Case Background

Prior trademark: A “running horse graphic” trademark on Class 25 clothing goods, with the pattern being a realistic silhouette of a running horse with its head facing right and all four hooves in the air.
Trademark under examination: A “flying horse graphic” trademark on Class 25 footwear goods, with the pattern being a cartoon-style flying horse with wings and its head facing left.

Deduction of Examination Steps

Step 1: Both fall under Class 25 clothing, footwear, and headgear, which are similar goods, and the relevant public is ordinary consumers.
Step 2: Through overall observation, both trademarks present an overall impression of “equine animal + leaping posture”, with a relatively high preliminary similarity score (4/5).
Step 3: Comparison of key parts
- Core pattern: Both are equine animals. Although one is a “running horse” and the other is a “flying horse”, they both belong to equines and have similar postures, resulting in high similarity of the core patterns.
- Line features: The prior trademark adopts a realistic silhouette style with smooth and bold lines; the trademark under examination adopts a cartoon style with simple and decorative lines, resulting in medium similarity of line features.
- Stylistic characteristics: There is a significant difference between realism and cartoon styles. However, the relevant public may overlook the stylistic difference in an isolated state and only remember the “horse-shaped pattern”.
- Head orientation: Right-facing vs. left-facing. This detail is difficult for consumers to accurately remember during isolated comparison and has little impact on the likelihood of confusion.
Step 4: Cognitive testing of the relevant publicOrdinary consumers have a moderate level of attention when purchasing clothing and footwear and may regard the “flying horse” as a series brand or associated brand of the “running horse”.

The goods are highly similar, with overlapping sales channels and consistent consumer groups, resulting in a weighted assessment of the likelihood of confusion reaching 75%.

Step 5: There are no special coexistence agreements or historical factors.
Step 6: Comprehensive judgment and conclusionDespite differences in style and details between the two trademarks, their core patterns (equine animal + leaping posture) are highly similar, with similar overall visual effects and designated similar goods, making it easy for the relevant public to be confused. In accordance with the principle of comparing key parts of graphic trademarks in the Trademark Examination and Trial Guidelines, the two trademarks are determined to be similar, and the application for the trademark under examination is rejected.

Practical Insight: This case indicates that in the examination of animal-shaped graphic trademarks, the “type” and “posture” of the animal are the core of determining the key parts. Even if the styles are different, if the core identification information highly overlaps, they may still be identified as similar.

Case 2: Similarity Determination of Abstract Geometric Graphic Trademarks – “Three Interlaced Rings” vs. “Three Nested Rings”

Case Background

Prior trademark: A “three interlaced rings” graphic on Class 9 electronic products, with three elliptical rings interlaced at a 120-degree angle, forming a complex sense of space.
Trademark under examination: A “three nested rings” graphic on Class 9 smart devices, with three circular rings nested concentrically and colors gradient from the outside to the inside.

Deduction of Examination Steps

Step 1: Both fall under Class 9, with a high degree of similarity, and the relevant public is consumers of electronic products.
Step 2: Through overall observation, both trademarks have a “three-ring” structure, but one is “interlaced” and the other is “nested”, resulting in a significantly different overall visual effect (score 2/5). A preliminary judgment is that they may not be similar.
Step 3: Comparison of key parts
- Core pattern: Both contain the “three-ring” element, but the relationship between the rings is fundamentally different (interlaced vs. nested), which is a fundamental difference in composition.
- Spatial layout: One presents a divergent and dynamic three-dimensional layout; the other presents a centralized and static two-dimensional layout, resulting in significant differences in layout.
- Visual effect: One emphasizes conflict and tension, while the other emphasizes order and hierarchy, resulting in completely different visual expressions.
Step 4: Cognitive testing of the relevant publicConsumers of electronic products have high sensitivity to graphic details and can clearly distinguish the structural differences between “interlaced” and “nested”.

The two trademarks leave completely different visual memory points when observed in isolation, with the likelihood of confusion being less than 30%.

Step 5: There are no special cases.
Step 6: Comprehensive judgment and conclusionAlthough both trademarks contain the “three-ring” element, there are substantial differences in the spatial relationship between the rings and the overall composition concept, resulting in different overall visual effects and no confusion among the relevant public. In accordance with the overall observation principle in the Trademark Examination and Trial Guidelines, the two trademarks are determined to be non-similar.

Practical Insight: In the examination of abstract geometric graphics, it is not possible to determine similarity solely based on “containing the same elements”. Instead, an in-depth analysis of the structural relationship and spatial layout between the elements is necessary. Differences in the core composition concept usually lead to a conclusion of non-similarity.

Case 3: Similarity Determination of “Inclusion Relationship” in Graphic Trademarks – “Complete Phoenix Graphic” vs. “Close-Up of Phoenix Head”

Case Background

Prior trademark: A “complete phoenix graphic” on Class 43 catering services, with the pattern being a complete side profile of a phoenix from head to tail feathers and having high popularity.
Trademark under examination: A “close-up of phoenix head” graphic on Class 43 catering services, containing only a close-up pattern of the phoenix’s head and part of its neck.

Deduction of Examination Steps

Step 1: The goods categories are completely the same, and the relevant public is catering consumers.
Step 2: Through overall observation, the “head close-up” of the trademark under examination is only a part of the “complete graphic” of the prior trademark. The two have an inclusion relationship, and the overall impression has continuity (score 4/5).
Step 3: Comparison of key parts
- Core pattern: The key part of the prior trademark may be the “phoenix head” or “tail feathers”; the key part of the trademark under examination is clearly the “phoenix head”. The key parts of the two highly overlap.
- Detailed features: Even if the trademark under examination has artistically processed the details of the phoenix head’s feathers and eyes, its basic shape is still highly similar to the phoenix head part of the prior trademark.
Step 4: Cognitive testing of the relevant publicCatering consumers have a high level of awareness of the graphic trademarks of well-known catering brands. When seeing the “close-up of phoenix head” trademark, they are highly likely to associate it with the well-known “complete phoenix graphic” trademark and mistakenly regard it as a series brand or sub-brand.

The goods categories are completely the same, with the likelihood of confusion reaching 85%.

Step 5: The impact of popularity needs to be considered. The prior trademark has high popularity, and its scope of protection should be appropriately expanded.
Step 6: Comprehensive judgment and conclusionThe trademark under examination completely contains the distinctive part (phoenix head) of the prior trademark and is used on the same services, making it easy for the relevant public to be confused about the associated relationship. In accordance with the rules for determining similarity of inclusion relationships in the Trademark Examination and Trial Guidelines and the principle of the impact of popularity on the scope of protection, the two trademarks are determined to be similar, and the application for the trademark under examination is rejected.

Practical Insight: When a subsequent trademark is only a partial close-up or an extract of the main part of a prior trademark, even if there are certain changes in form, it may still be identified as similar due to the inclusion relationship, especially when the prior trademark has popularity.

Case 4: Similarity Determination of the Graphic Part in Combined Trademarks – “Text + Graphic” Combination

Case Background

Prior trademark: A “text + graphic” combined trademark on Class 30 coffee goods, with “COFFEE KING” text on the upper part and a “coffee cup” graphic on the lower part. The graphic has a unique design and high popularity.
Trademark under examination: A “text + graphic” combined trademark on Class 30 tea beverage goods, with completely different “TEA TIME” text on the upper part, but the “tea cup” graphic on the lower part is highly similar to the “coffee cup” graphic of the prior trademark, with only a slight difference in the shape of the cup handle.

Deduction of Examination Steps

Step 1: Both fall under Class 30 beverages, with a high degree of similarity.
Step 2: Through overall observation, although the text parts of the two trademarks are completely different, the graphic part occupies a prominent position in the overall layout and has a striking visual effect. The difference in the text part is insufficient to offset the similarity of the graphic part (score 3/5).
Step 3: Comparison of key parts
- Text part: Completely different, which should not lead to confusion.
- Graphic part: The details such as the cup body shape, cup mouth curvature, and steam ribbon are highly similar, with only a difference in the cup handle. For common graphics such as “tea cups/coffee cups”, their distinctiveness is inherently not strong. However, the prior trademark has obtained strong recognizability through unique designs (such as the specific curve of the cup body and the artistic expression of the steam ribbon). The graphic of the trademark under examination copies these unique designs, constituting similarity of the key parts.
Step 4: Cognitive testing of the relevant publicWhen purchasing beverages, consumers are more sensitive to graphics than text. When seeing a highly similar tea cup graphic, even if the text is different, they may mistakenly regard it as a brand series extension (a coffee brand launching a tea series product).

The goods are similar with overlapping channels, and the likelihood of confusion is 65%.

Step 5: Consider the popularity of the prior trademark, whose graphic part has established stable market recognition.
Step 6: Comprehensive judgment and conclusionIn accordance with the rules for determining the similarity of combined trademarks in the Trademark Examination and Trial Guidelines, when the graphic part of a combined trademark has strong distinctiveness and popularity, even if the text part is different, the similarity of the graphic part is sufficient to result in the overall trademark being similar. Therefore, the two trademarks are determined to be similar, and the application for the trademark under examination is rejected.

Practical Insight: In the examination of combined trademarks, the similarity of the graphic part cannot be ignored solely due to differences in the text part. If the graphic is the main identification part and has distinctiveness, its similarity will determine the overall judgment result.

Chapter 6 Key Points and Risk Avoidance in Practical Operations

6.1 Pre-Application Search Strategy

6.1.1 Graphic Element Search Method

The official trademark search system of the CNIPA provides a graphic element search function, which uses the internationally accepted Vienna Classification to code graphic elements. Applicants should:

Accurately determine the Vienna Classification code of the graphic (such as categories of animals, plants, geometric figures, etc.).
Conduct a comprehensive search within the scope of the same or similar codes, focusing on similar trademarks in terms of core composition and key parts.
Pay attention to cross-category searches: If a graphic has high originality, even if others register it on non-similar goods, it may constitute an obstacle due to the trademark being well-known or cross-category protection.

6.1.2 Dynamic Monitoring and Early Warning

Conduct continuous monitoring of core graphic trademarks, promptly identify newly applied similar trademarks, and file oppositions. Trademark monitoring should cover:

Identical/similar goods categories.
Associated goods categories.
Cross-category applications with similar graphic elements.

6.2 Techniques for Preparing Application Documents

6.2.1 Optimization of Design Submission

Clarity: Submit vector graphics or high-definition bitmaps with a resolution of 300 dpi or higher to ensure that examiners can clearly see all design details.
Color strategy: If color is not a core element of the trademark, it is recommended to apply with a black-and-white design to obtain a broader scope of protection; if color has distinctiveness, specify the color and explain the uniqueness of the color combination.
Design description: Submit a trademark design description when necessary to explain the creative source of the graphic, unique design points, and essential differences from prior trademarks, helping examiners understand the design intent.

6.2.2 Accurate Designation of Goods/Services

Avoid designating an overly broad scope of goods in the application and focus on the core business scope. An overly broad designation is prone to conflicts with more prior trademarks, increasing the risk of rejection.

6.3 Reexamination Strategy for Responding to Rejections

6.3.1 Construction of Reexamination Reasons

Upon receiving a rejection notice, a reexamination application should be filed within 15 days, focusing on demonstrating the following:

Differences in overall visual effect: Quantitatively explain the differences in the overall impression between the two trademarks through comparison charts and visual effect analysis reports.
Substantial differences in key parts: Conduct an in-depth analysis of the substantial differences in core patterns, lines, composition, etc., without merely staying on surface descriptions.
Differences in the cognition of the relevant public: Provide evidence such as market research reports and consumer questionnaires to prove that consumers in the actual market can distinguish the two trademarks.
Non-similarity of goods/services: If possible, demonstrate the differences between the designated goods and the cited trademark in terms of function, purpose, sales channels, consumer groups, etc.

6.3.2 Use of Evidence

Usage evidence: If the trademark has been actually used, provide a large amount of usage evidence (sales contracts, invoices, advertising materials, market share data) to prove that it has established independent market recognition and will not cause confusion.
Popularity evidence: If the cited trademark has low popularity, request the owner of the cited trademark to provide usage evidence; otherwise, the basis for its rights may be questionable.

6.4 Handling of Special Cases

6.4.1 Coexistence of Graphic Trademarks

If a coexistence agreement is reached with the owner of the prior trademark, the following should be evaluated:

Whether the agreement is true, voluntary, and legal.
Whether coexistence may cause significant consumer confusion.
Whether it harms public interests.

The CNIPA adopts a prudent attitude towards coexistence agreements and usually only accepts coexistence when the differences between goods/services are relatively large and the overall differences between trademarks are obvious.

6.4.2 Utilization of Revoking Trademarks Not Used for Three Years

If the cited trademark has been registered for more than three years and there is no sign of actual use, an application for “revocation of trademarks not used for three years” can be filed against it. Once the cited trademark is revoked, the obstacle is eliminated. This strategy requires advance planning of time, as the revocation trial cycle is relatively long.

6.5 Basic Protection of Graphic Copyright

If a graphic trademark has originality, it is recommended to simultaneously apply for copyright registration. When the trademark cannot be registered due to similarity, the copyright of the graphic work can be claimed in accordance with the Copyright Law to prevent others from using it, forming cross-protection.

Chapter 7 Conclusion: Practical Essentials for Determining Similarity of Graphic Trademarks

Determining the similarity of graphic trademarks is a comprehensive intellectual activity that integrates legal rules, artistic aesthetics, market cognition, and psychological principles. Its core essence can be summarized as the “Three-Three-Four Principle”:

Three Persistences at All Times

Always adhere to the criterion of likelihood of confusion: All technical comparisons ultimately serve the fundamental question of “whether confusion is likely to occur”, and one should not fall into the misunderstanding of pure artistic appreciation.
Always adhere to the principle of case-by-case determination: Each graphic is a unique artistic creation, and an independent judgment must be made based on the specific facts of the case, eliminating mechanical analogy.
Always adhere to the combination of overall observation and focus on key parts: Grasp the overall visual impression from a macro perspective and focus on the distinctive identification parts from a micro perspective, with neither aspect being neglected.

Three Key Perspectives

Examiner’s perspective: Understand the examiner’s workflow and judgment logic, predict their focus points (overall outline → key part details → likelihood of confusion), and prepare application materials or reexamination reasons in a targeted manner.
Consumer’s perspective: Always take the “general attention of the relevant public” as the standard, simulate the cognitive state in real market scenarios, and avoid excessive entanglement in professional details.
Designer’s perspective: Gain an in-depth understanding of the artistic language of graphic design, accurately identify the similarities and differences in elements such as composition, lines, and colors, and provide professional technical support for legal arguments.

Four Practical Key Points

Comprehensive search: Conduct an exhaustive graphic search using the Vienna Classification, which is the first line of defense for risk prevention and control.
Distinctive design: Original designs should be as far away from public domain elements and prior trademarks as possible, and establish strong distinctiveness through unique artistic processing.
Precise application: Clear designs, appropriate color strategies, and accurate designation of goods are the basic guarantees for the smooth acquisition of rights.
Flexible response: When facing rejection, flexibly use multi-dimensional means such as demonstration of overall visual effect, analysis of key part differences, market cognition evidence, coexistence agreements, and revocation strategies, rather than sticking to a single legal argument.

With the in-depth advancement of China’s intellectual property power strategy, the standards for graphic trademark examination will continue to improve, and the Trademark Examination and Trial Guidelines will also enhance predictability through the accumulation of more cases. Only by deeply understanding its spiritual essence and proficiently applying its methodology can trademark practitioners navigate the complex and ever-changing examination practice with ease and provide solid legal protection for brand innovation.