CHANG TSI
Insights
For many years, trademark strategy revolved around a relatively straightforward objective: securing registration.
If a mark was available, distinctive, and did not conflict with prior rights, most businesses considered the hardest part of the process complete. Once a registration certificate was obtained, attention naturally shifted toward marketing, commercialization, and brand growth increasingly. However, that assumption no longer holds true.
Today, a different question is emerging:
Even if a trademark is successfully registered, can it still be used safely five, ten, or even fifteen years later?
That question sits at the heart of China's growing scrutiny of so-called “Scheming Trademarks” (心机商标)
The term itself has no formal definition under China's Trademark Law. It is not a statutory concept, nor does it appear in any official legislative text. Yet over the past year, it has quickly become one of the most frequently discussed topics among trademark practitioners, regulators, and brand owners.
The reason is simple.
The phrase captures a broader regulatory concern about when creative branding crosses the line into consumer deception. At its core, the issue is not creativity itself. Creativity remains an essential component of effective branding. The issue is whether that creativity encourages consumers to believe something about a product that is not actually true.
A trademark may imply superior quality. It may suggest scientific validation. It may hint at premium ingredients, geographical heritage, medical endorsement, or enhanced efficacy. When those implications extend beyond what the underlying product can legitimately support, regulators are increasingly prepared to intervene.
And that development tells us something important.
China's trademark authorities are no longer focused solely on whether a trademark should be registered. Increasingly, they are asking whether it should continue to be used.
Viewed in isolation, recent enforcement actions against Scheming Trademarks may appear to be a series of individual cases. Viewed together, however, they reveal something much more significant.
They reflect a broader evolution in how trademarks are being regulated.
Historically, trademark examination focused on relatively familiar questions:
• Does the trademark conflict with prior rights?
• Is it sufficiently distinctive?
• Does it satisfy statutory registration requirements?
Those questions remain important. But they are no longer the only questions being asked. Increasingly, regulators are focusing on consumer perception.
How will consumers interpret the trademark?
What message does the trademark communicate?
Does the overall impression created by the brand exceed the actual characteristics of the goods?
Has that impression been reinforced through advertising, packaging, e-commerce content, livestream promotions, or other marketing activities?
What makes this shift particularly interesting is that it is not fundamentally about trademark law. Rather, it reflects a broader evolution in consumer protection policy.
In many respects, the discussion around Scheming Trademarks is less about whether a mark is legally registrable and more about whether brand communication itself remains fair and transparent. A trademark is no longer viewed solely as a legal identifier. It is also viewed as a marketing statement. And like any marketing statement, it may be scrutinized for the expectations it creates.
For some businesses, the natural response may be:
“If I already have a registration certificate, why should I be concerned?”
Recent developments suggest that may no longer be the right question. A registration certificate remains important. But it no longer guarantees that a trademark will remain free from future scrutiny.
Today, trademark-related challenges may arise at multiple stages of a brand's lifecycle:
• During examination;
• Through opposition proceedings;
• Through invalidation actions;
• Through administrative enforcement;
• Through consumer complaints and public reporting mechanisms.
In effect, trademark compliance no longer ends when registration is granted. For many businesses, that is precisely when compliance begins. This represents a fundamental shift in mindset.
Historically, trademark strategy focused on obtaining rights.
Increasingly, trademark strategy must focus on maintaining those rights and ensuring that ongoing use remains aligned with regulatory expectations.
One common misunderstanding is that regulators are targeting creativity itself. That is not the case. The issue is not innovation. The issue is consumer misunderstanding.
Recent enforcement activities suggest that regulators are paying particular attention to trademarks that encourage consumers to draw conclusions the underlying product may not fully support. Some trademarks imply enhanced product quality. Others suggest superior efficacy. Some rely on geographical heritage. Others borrow credibility from scientific terminology or professional associations.
The wording may differ. The common thread does not.
In each case, the concern is whether consumers are likely to form expectations that extend beyond the product's actual characteristics.
Current enforcement practice suggests that particularly sensitive areas include:
Quality and Premiumization Claims
Terms suggesting traditional production methods, natural sourcing, handcrafted manufacturing, or superior quality can create powerful consumer associations.
The legal issue is not whether such wording can be used. The issue is whether consumers are likely to interpret those expressions as objective product characteristics that cannot be substantiated.
Efficacy-Oriented Branding
Expressions implying whitening, freshness preservation, enhanced effectiveness, sensitivity protection, or similar functional benefits continue to attract increased attention. A trademark cannot be used as a substitute for regulatory approval or scientific substantiation.
When brand messaging begins to function as an implied product claim, risk levels rise considerably.
Numerical Claims
Numbers carry a unique persuasive power. Consumers naturally associate numerical expressions with precision and objectivity.
As a result, numerical branding strategies that imply superior performance, increased volume, greater potency, or enhanced specifications may attract additional scrutiny where those implications cannot be adequately supported.
Origin and Heritage Claims
Consumers often place considerable value on geographical origin, historical lineage, authenticity, and traditional production methods. Such associations can be commercially powerful.
They can also become problematic when the impression created by the brand does not accurately reflect reality.
Medical and Scientific Endorsement
One of the most closely watched categories involves expressions suggesting medical, clinical, or scientific validation. Terms such as “Medical Research,” “Clinical Research,” and similar wording naturally carry an aura of professional authority.
When non-medical consumer products attempt to leverage that authority without sufficient substantiation, regulators may conclude that the branding exceeds what the product can legitimately claim.
Perhaps the most striking lesson emerging from recent enforcement activity can be seen in the Colgate-related cases.
What made these cases notable was not merely the trademarks involved. It was the fact that the trademarks had already existed for many years. Some had accumulated substantial goodwill and market recognition. Some had been used for more than a decade. Yet none of that prevented renewed regulatory scrutiny.
The cases drew attention because regulators revisited whether expressions such as “劲白/Strongly white” and similar wording could create consumer expectations relating to whitening or enhanced efficacy that were not fully supported by the underlying product registration information.
For many brand owners, this was an uncomfortable message. It suggested that trademark compliance is no longer assessed exclusively at the moment a registration certificate is issued. Instead, compliance is increasingly viewed as an ongoing obligation that continues throughout the life of a brand.
Legal assessments evolve. Regulatory priorities evolve. Consumer expectations evolve.
A trademark that appeared unobjectionable fifteen years ago may be evaluated very differently today. For companies managing mature trademark portfolios, this may be one of the most important lessons of all. The greatest risk may not come from newly filed trademarks. It may come from longstanding brands that have never been reassessed against today's regulatory expectations.
For many years, trademark strategy and trademark registration were largely synonymous. That equation is becoming increasingly outdated.
Today, businesses need to think more broadly. They need to ask not only whether a trademark can be protected, but whether it can be defended. Not only whether it can be registered, but whether it can continue to be used. Not only whether it attracts consumers, but whether the message it communicates remains consistent with evolving compliance expectations.
In practical terms, this means moving beyond a registration-focused mindset and embracing a broader brand compliance framework. Businesses should evaluate trademarks from both legal and regulatory perspectives before filing.
They should periodically reassess existing portfolios. They should review packaging, advertising, digital content, influencer campaigns, and e-commerce materials to ensure that consumer-facing communications remain aligned with the actual characteristics of the products involved.
Increasingly, trademark management is becoming an exercise in risk management.
The lesson from China's scrutiny of Scheming Trademarks is not that companies should become less creative. Nor is it that memorable or differentiated branding has somehow become undesirable.
The real lesson is that creativity is no longer evaluated solely by the market. It is increasingly being evaluated by regulators as well.
As trademark governance gradually expands from registration to lifecycle compliance, businesses may need to rethink how they assess branding risk. A trademark is no longer simply an indicator of commercial origin. It is a form of communication. And like any form of communication, it may be judged not only by what it says, but also by what consumers believe it means.
For brand owners, the question is therefore no longer simply:
Can this trademark be registered?
Increasingly, the more important question may be:
Will this trademark still withstand scrutiny ten years from now?
That may ultimately become one of the defining brand compliance challenges of the next decade.
