In December 2022, the CNIPA issued the Guidelines on the Application for Registration and Use of Class 35 Service Trademarks. The Guidelines are designed to help relevant market players correctly understand the connotation and extension of Class 35 service items, understand the intent of the relevant classification items, and reasonably apply for trademark registration.

The Guidelines first point out that Class 35 of services is characterized by the provision of "for others", rather than engaging in the relevant conduct for the right holder's own business needs. At the same time, the Guidelines explain each category under Class 35 services, which includes advertising-related services, business management assistance-related services, franchise-related services, import/export agency services, marketing services for others, online marketplace services for buyers and sellers of goods and services, personnel-related services, office-related services, accounting-related services, sponsorship search services, and retail or wholesale services for pharmaceuticals and medical supplies. Generally speaking, a general type of goods producer, which only manufactures or sells its goods as its business scope and does not engage in providing the above-mentioned services to other market entities or individuals, is not required to apply for a registered trademark on the relevant services in Class 35.

In terms of trademark use, the Guidelines clearly state that "the use of trademarks on storefronts is for the sale of goods produced by themselves, and does not belong to the use of 'marketing for others' services.” When other market players claim infringement of the above-mentioned acts based on trademarks approved for other goods or services, the alleged infringer may still constitute an infringement of another's registered trademark or unfair competition, even if the registered trademark is obtained for 'marketing services for others’.

In terms of using evidence retention, the Guidelines advise on evidence collection for the intangible nature of Class 35 service items.

1. The service contract agrees on the service content. The service contract shall reflect the service trademark logo, trademark number, specific service items, and service content.

2. The contract should correspond to the invoices, payment vouchers, acceptance slips, etc., that is, the contract and invoices, payment vouchers, acceptance slips in the embodiment of the service trademark, goods, service amount, service content, time and other content can correspond one to one.

3. Pay attention to retaining evidence of the promotion of the service trademark through various media such as radio, television, newspapers, and magazines, as well as through electronic media and the Internet.

4. Service places shall be uniformly marked with trademarks, such as doorsteps, signboards, internal walls, service introduction manuals, staff attire, menus, price lists, office stationery, and other supplies related to the designated services should be marked with service trademarks; contracts and invoices entrusted to design companies for the design and production of the above carriers should reflect the service trademark.

5. When there is more than one trademark for the same class, and the significant part of the trademark is different, the user should consciously distinguish the use, and keep good evidence of the use of each trademark.

6. When the trademark is the same as the business name, it can be marked in the upper right corner of the trademark for differentiation when used as a trademark.

7. Collect and organize the relevant defense evidence when it cannot be put into use due to force majeure, government policy restrictions, bankruptcy, liquidation, etc.

Regarding the maintenance and exercise of rights, the Guidelines emphasize that the principle of honesty and credit should be followed, as the principle of non-abuse. Trademark rights holders should avoid abuse of rights or excessive defense of rights, and relevant parties should also avoid exceeding the limits of the use of behavior. For example, the right holder of the Class 35 service trademark cannot consider the services provided by other market entities in their business activities to be the same or similar services because of the characteristics of "commerciality" and "management", etc, or therefore consider it as infringing the exclusive right to use the registered trademark for its Class 35 services and prohibit other market players from properly providing the services. At the same time, the relevant market players should pay attention to the use and the boundaries of trademarks in business activities, avoid exceeding the necessary limits, and avoid the infringement of others' exclusive rights to service trademarks caused by the relevant specific use behavior..

For details of the original Guidelines, see: