Research on the Recognition of "Acquired Distinctiveness" In

Advertising Slogans as Trademarks

Zixin Liu

School of Law, University of International Business and Economics, Beijing, 100029, China

Keywords: Advertising Slogans, Trademark, Trademark Recognition, Acquired Distinctiveness, Identification Function.

Abstract: With the rapid development of internet information technology, advertising creativity has flourished, increas-

ing the demand for trademark protection of original and distinctive slogans. This study addresses the chal-

lenges of recognizing "acquired distinctiveness" in trademark applications for text-based advertising slogans

and explores how such slogans can fulfill the identification requirements of trademark law through actual use.

By examining domestic and international legislative frameworks and judicial practices, the research evaluates

the feasibility of registering slogans lacking inherent distinctiveness via the acquired distinctiveness pathway

regulation. The findings reveal that legislative refinement of recognition standards and categorized processing

is essential, while judicial practices should emphasize the reasonableness of the slogans' practical effects and

creative value. Balancing public interest with healthy market competition is equally crucial. The study con-

cludes optimizing legal frameworks and recognition criteria not only protects the intellectual efforts behind

high-quality advertising slogans, but also promotes intellectual property rights and drives market develop-

ment.

1 INTRODUCTION

In the digital information age, advertising has evolved

as a medium to communicate product and service

information to consumers with personalized and

aesthetic formats. Particularly on internet platforms,

innovative advertising concepts are thriving, with a

growing emphasis on the artistic and individualistic

expression of language (Wu et al., 2019). Text-based

advertisements, characterized by unique phrases or

catchy taglines, exemplify this trend. However, when

creators of distinctive advertising slogans attempt to

due to a lack of inherent distinctiveness. As a result,

many turn to the "acquired distinctiveness" route,

aiming to demonstrate that the slogan has achieved

distinctiveness through actual use and public

recognition.

The question of whether text-based

advertisements can gain distinctiveness through use

remains contentious in theory and practice. While

laws such as the Chinese Trademark Law, the U.S.

Trademark Act, and the EU Trademark Regulation

provide for the "acquired distinctiveness" pathway,

discrepancies persist in judicial interpretation

regarding elements like distinctiveness and

identification functions (Xie, 2022; Adarsh et al,

2024; Basire, 2020).

This paper addresses these issues by focusing on

text-based advertisements. It combines academic

analysis and practical cases to propose legislative and

judicial recommendations for refining the standards

of "acquired distinctiveness". The objective is to

explore viable methods for proving acquired

distinctiveness, aiding judicial determinations, and

promoting legal protection for slogans that fulfill the

essence of trademarks, ultimately encouraging

creativity and development in advertising.

2 CHALLENGES IN RECOGNIZ-

ING DISTINCTIVENESS FOR

ADVERTISING SLOGANS

2.1 Lack of Inherent Distinctiveness in

Advertising Slogans

2.1.1 Negative Attitudes in Existing Legal

and Regulatory Frameworks

According to Article 9 of the Chinese Trademark

Law, a trademark must possess distinct characteristics

that facilitate recognition. In administrative litigation

Liu, Z.

Research on the Recognition of "Acquired Distinctiveness" in Advertising Slogans as Trademarks.

DOI: 10.5220/0013962300004912

Paper published under CC license (CC BY-NC-ND 4.0)

In Proceedings of the 1st International Conference on Innovative Education and Social Development (IESD 2025), pages 27-34

ISBN: 978-989-758-779-5

concerning trademark applications, the Beijing High

People’s Court has clarified that a mark must first

exhibit recognizability, thereby linking it to the

source of goods or services, to be considered

distinctive (Beijing High People's Court, 2012). For

text-based advertising slogans, whether a mark

consisting of words, phrases, or sentences has

recognizability depends on its context of use

concerning specific goods or services. If the text

represents common descriptions within its product or

service category, consumers are likely to perceive it

as promotional rather than as a source identifier,

rendering it ineligible for inherent distinctiveness

(Beijing High People's Court, 2012).

The Trademark Examination and Adjudication

Guidelines issued by the China National Intellectual

Property Administration in 2021 further reinforce this

principle. Chapter 4, Section 2.3 (2) classifies "other

marks lacking distinctiveness" as those containing

descriptive phrases, sentences, or ordinary

promotional language (China National Intellectual

Property Administration, 2021). This societal

perception views advertising slogans predominantly

as promotional tools rather than identifiers of goods

or services' specific origins (China National

Intellectual Property Administration, 2021).

Similarly, U.S. trademark law emphasizes

inherent distinctiveness as a critical requirement,

defined as the immediate association by consumers of

a mark with the source of goods or services due to its

semantic or qualitative attributes. Under the

Abercrombie spectrum, a mark such as "Apple" for

computers demonstrates inherent distinctiveness due

to its arbitrary nature. Conversely, a descriptive

slogan like "Afraid of Heat? Drink Tea" for herbal

teas lacks inherent distinctiveness unless

supplemented by evidence of acquired uniqueness

through actual use. Establishing such proof is often

complex and resource-intensive (Adarsh et al., 2024).

It is evident that, both domestically and

internationally, current legislative perspectives

generally treat text-based advertising slogans as

inherently lacking distinctiveness (Xie, 2022).

Determining whether such slogans have acquired

distinctiveness through actual use depends on their

ability to establish a unique function of distinguishing

goods or services within their category. This

approach parallels the "becoming distinctive"

doctrine in EU trademark legislation, to explain

whether the advertisement applying for trademark

registration has significant characteristics (Basire,

2020).

2.1.2 Cognitive Barriers Among Consumers

regarding The Source-Identifying

Function of Advertisements

The formulation of trademark laws responds to social

realities and contemporary needs. The perception of

advertising slogans as trademarks contradicts

traditional consumer habits. Commonly, slogans are

used alongside established product trademarks (e.g.

unique product names or logos), emphasizing their

promotional function (Wu, 2017). This creates a fixed

impression, overshadowing their potential as unique

source identifiers.

Therefore, such preconceived notions represent a

cognitive barrier for consumers regarding the source-

identifying role of advertising slogans. Overcoming

these barriers requires focusing on the psychology

and cognition of average consumers during practical

use. Both creators seeking trademark registration

through "acquired distinctiveness" and legislators

formulating standards must account for these societal

realities. Currently, public perception largely

undermines the recognition of advertising slogans as

inherently distinctive, often viewing them as lacking

the necessary qualities of a trademark.

2.2 Challenges in Recognizing

Acquired Distinctiveness for

Advertising Slogans

The negative attitude towards the identification of the

distinctive characteristics of advertising trademarks

indicates that advertising is a fait accompli under the

existing legal framework. Advertising creators and

relevant practitioners begin to think about the

possibility of "significance", but this path also has

difficulties in identification. For example, in the EU

Trademark Regulations, the connotation of trademark

"gaining significance" is that the trademark is through

actual use, which has a clear connection with the

source of goods or services, so that consumers can

identify and distinguish the trademark from any other

goods or services under the same category. The key

to identifying "gaining significance" is whether a

factual application has gained a unique recognition

and irreplaceable position in the market (Basire,

2020).

2.2.1 Difficulty in Demonstrating

Source-Identifying Function the Actual

Use

In 2012, Gengsheng Huang appealed the State

Trademark People's Court of the Beijing Higher

IESD 2025 - International Conference on Innovative Education and Social Development

People's Court for rejecting the objection to

trademark application. In the administrative review

case, although the evidence submitted by the plaintiff

Gengsheng Huang proves that in fact, he applied for

the trademark "Beautiful Open", an invest in clothing

sales, more than five years in more than 10 cities, over

300 branches in the medium and long term, a large

number of actual use. But as the public has been using

the slogan as a publicity, the actual use is still not

effective for "identifying the source of goods", the

court decision still pointed out that it "is not enough

to prove that the trademark application has been long

and large use can play a role in identifying the source

of goods (Beijing High People's Court, 2012)."

Therefore, the advertising slogan trademark

application ultimately did not pass.

It can be seen from the above classic cases that

under the current system of "significant

characteristics" in article 11 of the Trademark Law of

the People's Republic of China, the logical path of

judicial recognition can be summarized as: first judge

whether it is "recognizable", and then judge whether

its actual use is associated with the "recognition

effect". At the same time, this also reflects from the

side: if the meaning of text advertising words is too

general, the description is too descriptive, it generally

can not play the role of recognition. Even in fact, if

there is a long amount of actual use, it can not

guarantee it to obtain recognition, and it is more

difficult to prove its significance.

2.2.2 The Practical Challenge of Acquiring

Distinctiveness then Differentiation

Beforehand

It happens that there is a similar case. In the

Wanglaoji application "afraid of fire then drink"

trademark registration case, related analysis literature

points out that if one wants to apply an advertisement

slogan for registration as a trademark, the users from

the start need to use it alone, and to gain a perception

treating it "as a unique mark able to be independently

used", rather than combined with existing commodity

trademark use (Wu, 2017). That is to say, the further

key to "distinctiveness" is "differentiation", that is,

the identification effect that can distinguish the

advertising itself from other goods and services,

which is the direction that the application of

advertising trademark rights should consider how to

use advertising to achieve significance. Certainly,

there is also a practical threshold for the function

transformation of advertising language and

"obtaining differentiation"—how to prove that it has

been transformed from a publicity tool to the source

identification function is also the difficulty in the

application process of text advertising trademark.

3 FEASIBILITY ANALYSIS OF

ACQUIRING

DISTINCTIVENESS FOR

ADVERTISING SLOGANS

3.1 Theoretical Foundations

Supporting Acquired

Distinctiveness the Practical Use

3.1.1 Recognition Theory in The Trademark

Semiotic Model

Although difficulties in recognition exist, judicial

practice does not exclude the possibility of slogans

with weak inherent distinctiveness acquiring

recognition through practical use (Xie, 2022).

For example, the landmark case involving the

slogan "Beauty Never Closes" demonstrates the

importance of assessing a trademark ’ s source-

identifying capability first before applying the Five

Kinds of Distinctiveness standard of American

Trademark Law (Adarsh et al., 2024). Generic

phrases or sentences are easily perceived by the

public as promotional rather than as distinctive

trademarks. However, this perception can change

with practical use. Based on the semiotic model of

trademarks—comprising the sign, the source, and the

goodwill associated with goods — acquired

recognition occurs when the slogan aligns and

integrates with these elements while maintaining the

potential to exist independently (Peng, 2007).

Similar to the principles underpinning "acquired

distinctiveness," trademarks may "acquire

recognition" by overcoming inherent weaknesses

through prolonged and consistent use. The core

challenge for text-based advertising slogans lies in

breaking societal norms of conventional meanings

and fostering a new understanding of the expressions

they embody (Xie, 2022).

3.1.2 Anti-Dilution Theory in the Consumer

Investment Model

Practical use can enhance the likelihood of

recognition, but it may also lead to potential misuse.

Some advertisers attempt to exploit catchy and

repetitive slogans to embed habitual associations

between their slogans and specific goods or services

Research on the Recognition of "Acquired Distinctiveness" in Advertising Slogans as Trademarks

in the minds of consumers, thereby suppressing

competitors (Tian, 2024). This strategy aligns with

the anti-dilution theory.

Combined with the study of new theories such as

the "consumer investment model" and "imagination

cost", it is not difficult to understand that in theory,

advertising can always forcibly create the associative

memory of advertising slogans or slogans and

specific goods and services through repeated practical

use, so as to realize the function of exclusive

recognition (Tian, 2024). Its underlying logic is

manifested as a return on investment for consumers'

memory, which builds a bridge to prove the existence

of recognition association for advertising use and the

new meaning of content.

3.1.3 Recognition Transfer Logic in The

Communication Memory Model

The communication memory model, proposed by

Professor Jicun Fu of China University of Political

Science and Law, provides further theoretical

support. This model views advertising as a means of

transferring product or service information between

trademark owners and consumers. Over time,

consistent exposure to an advertising slogan within a

given market fosters a distinct memory link, akin to a

shared identifier, between the producer and consumer

(Fu, 2021).

According to this theory, the use of the same

advertising slogan over time within social consumer

groups serves as a specific output, creating a form of

communication that is not directly targeted but still

effective. Advertising acts like a specific

identification number, guiding consumers to trace

back through memory recall and identify the original

source of the goods or services itself. This process

plays a substantive role in establishing recognition,

accumulating consistent "inherent significant

features," and creating a unique mark effect. This

accumulation of recognition makes it possible for the

slogan to meet the conditions for "significance"

required for trademark protection.

3.2 Judicial Recognition of Acquired

Distinctiveness in Practice

In judicial practice, determining whether a text-based

advertising slogan has achieved sufficient recognition

(rather than merely serving as propaganda) to qualify

as a trademark is a complex issue. For example, well-

known slogans like "Crazy Thursday" or "Today's

Youtiao" have had both successful and unsuccessful

trademark registration outcomes. When a slogan fails

to register as a trademark, it opens the door for

competitors to repeatedly imitate it, potentially

leading to malicious attempts to capitalize on the

brand ’ s established recognition and market

presence. Paying attention to the judicial judgment of

related cases can bring more judicial thinking to the

identification of "acquired distinctiveness" of written

advertising trademarks.

3.2.1 The Relationship Between Advertising

Efforts and Acquired Distinctiveness

Previously discussed the anti-desalination theory

based on the development of consumer investment

model, which shows that the repeated use of

advertising can theoretically form the identification

of the source of advertising. However, in real

examples, high-intensity advertising does not

necessarily bring significant acquisition, and may

even produce negative effects that run counter to the

intention. The following will analyze the relationship

between the use of advertising and the significance of

the use of the case of "Today's Youtiao (Fried bread

stick, a kind of Chinese snack)" and several examples

of advertising marketing.

"What you care about is the headline" and "What

care about you is a good youtiao" are the "Toutiao"

news App and a breakfast shop called "Today's

Youtiao". The former is known to be a successful

experience to acquire distinctiveness, can we infer

that the latter must also be significant?

Combined with the case of "Toutiao", people first

need to affirm that its advertising slogan "What you

care about is Toutiao" has high popularity among the

public. It has broken through the general description

of the news industry, so that people can clearly judge

that this sentence belongs to the "Toutiao" platform.

This shows that the significance of the "Toutiao"

trademark is related to the intensity and scope of its

advertising. In view of the analysis of whether there

is a possibility of confusion between it and the

advertising slogan of "Today's Youtiao", some

scholars believe that the judicial judgment also

pointed out that the advertising slogan does not

constitute the similarity of the logo content, but it has

the possibility of confusion in the actual use (Ning &

Ye, 2021). Since "Today's Youtiao" is the external

expression of the parody "Toutiao" trademark,

"Toutiao" is based on its powerful logo influence,

which will lead to the logo of "Today's Youtiao",

which essentially makes consumers more easily think

of the cited "Toutiao" and deepen the information

memory of it. This is just like the slogan use of

"Today's Youtiao" is imitated by "Toutiao", and the

IESD 2025 - International Conference on Innovative Education and Social Development

final use effect is also stolen by "Toutiao". This is a

reminder of the intensity of advertising use and

significance in practice: the higher intensity of

advertising does not necessarily improve the

possibility of significance, and practitioners should

pay attention to the descriptive meaning of

advertising to avoid the risk of parody.

In addition, no matter what kind of advertising use

must be built on the basis of the market quality

inspection, those with high intensity of implement

should be more so (Tian, 2024). There exists a market

of advertising failure examples, more to consumers of

inferior marketing, such advertising use even for

significant for a negative impact: such as advertisers

of "Bojue Photo" and "Boss Zhipin" with repeated

slogans of the relevant public output goods and

services information, they take up excessive public

attention resources. Although this move does not

violate the rules and regulations, it sends too much

wasted and wasted information to the market. Instead,

it will impress consumers and eventually be forgotten

in the public eye under the influence of the survival

of the fittest in the free market.

From the above marketing, the recognition effect

of advertising is not simply achieved by parody and

repetition. Simple repeated and lack of creative

advertising not only fails to bring positive brand

publicity effect for the goods or services pointed to,

let alone itself can obtain a powerful identification

association to achieve significance, and finally can

only be eliminated under the action of the market

mechanism. Therefore, if one wants to judge whether

an advertising trademark can be significant through

actual use, he must consider the quality of the

advertising itself and the market performance of

(Tian, 2024).

3.2.2 Recognition in Keyword Advertising

and Search Engines

In the field of search engine keyword advertising use,

there are often infringement disputes over advertising

retrieval tools to set other people's trademarks as

advertising keywords. In the case that the behavior of

keyword promotion customers constitutes direct

trademark infringement, the opinions of existing

scholars are mainly divided into two types of

infringement: joint infringement and indirect

infringement.

Support for using the theory of indirect

infringement is grounded in the idea that, compared

to direct infringement, advertising search behavior

itself falls outside the immediate scope of control.

However, the law still qualifies such behavior as

infringement. This is based on considerations of

expanding trademark protection reasonably and

holding parties liable for actions that contribute to

infringement, even if they don't directly infringe on

the trademark themselves (Du, 2015).

This analysis method may be transferred to the

reflection on whether the advertisement slogan is

significant. On the one hand, the framework of

indirect infringement and common infringement can

be used for attempts to prove the relationship between

the slogan and goods or services. To be more detailed,

when the keyword inputted for search is the context

of referring slogan, applying indirect infringement

means the slogan itself has not achieved the standard

of significance, while applying common infringement

means that the source identification and

advertisement could be viewed as a whole, reflecting

their unit as one and the function of identification as

one. On the other hand, there exists part of an

advertising slogan widely used by consumers

considering it as a direct reference for commodity and

service. When this occurred, the long-term practice of

search and index can realize the effect of the

advertisement directly pointing to the source of

commodity and service, which illustrates that the

corresponding advertising slogan has achieved

"acquired distinctiveness". Of course, this paper is

only an idea to discuss whether the trademark has

"significant acquisition" by the infringement

framework. It does not mean that the infringement

phenomenon in the keyword advertising engine

service is rationalized, but regards it as an objective

use fact.

4 LEGISLATIVE

IMPROVEMENTS FOR FAIR

AND EFFICIENT

RECOGNITION OF

"ACQUIRED

DISTINCTIVENESS"

4.1 Refining Standards and

Categorization for Recognition of

"Acquired Distinctiveness"

4.1.1 Typological Classification of "Other

Non-Distinctive Marks"

Combined with the current "trademark law"

involving "features" 8, nine, 11 of the law, can comb

and refine the article content, based on the American

Research on the Recognition of "Acquired Distinctiveness" in Advertising Slogans as Trademarks

trademark law Abercrombie spectrum classification

standard, according to the mark of the semantic

differentiation will mark "other non-distinctive

features mark" for classification ownership and give

the corresponding method.

Moreover, some scholars put forward the

principle of reverse inference that can be further

refined by identification requirements (Xie, 2022). In

view of the situation the first two items of Article 11

of the Trademark Law, combined with the social

background needs can stipulate exceptions in specific

industries and fields, and give a certain degree of

grace, etc. For example, when advertising slogans are

proved to have a "second meaning" in the service

industry, it can break through the restriction that

general daily meaning terms are prohibited from

applying for registration as trademark. In legislative

revision, authorities can focus on the exception

definition of "second meaning" and "special context"

for reverse inference.

4.1.2 Drawing Lessons from Judging The

"Distinctiveness" of Advertising

Slogans in Foreign Legislation

The EU Trademark Regulation provides that "marks

composed solely of customary signs in the relevant

field" may achieve recognition through actual use,

demonstrating a flexible approach to acquired

distinctiveness (European Union, 2017). Similarly,

Chinese law could address the unique meanings that

certain slogans acquire in specific contexts, allowing

them to meet distinctiveness requirements.

Another approach would directly recognize

slogans with inherent distinctiveness under certain

conditions. For example, in the Italian Supreme Court

case A.M. v. FCA Italy S.p.A., the court emphasized

that advertising slogans eligible for trademark

protection must exhibit substantial originality and

creativity. This suggests a shift in focus from the

inseparability of the slogan and its goods to the slogan

’ s intellectual merit, enabling direct

acknowledgment of inherent distinctiveness in

exceptional cases (Currey et al., 2023).

4.2 Formulate the Legal Basis for

Regulating Inferior Advertising

Such as False Publicity and

Malicious Competition

For the waste of market resources, malicious

competition, imitation and other inferior

advertisements in society, the most effective and

commonly used regulatory means still rely on the

formulation and implementation of supporting laws

and regulations (Tian, 2024). It is necessary to

formulate more specific legal rules to prevent inferior

advertising trademarks from blindly imitating and

occupying social attention and market resources. The

reason why emphasizing the regulation and

regulation of the phenomenon of pure imitation is to

maintain the public interest of safeguarding the

unique protection of trademarks and the public's free

use of words. Specific legislative Suggestions can

increase from the increase of advertising long-term

use standard of proof, the competent authority of

trademark acceptable forms of evidence, setting

analysis of advertising quality and market impact

evaluation indicators, such as the frequency, sales

correlation, network discussion heat, combining the

judicial practice has social influence and

demonstration of classic cases, make more clear

judicial interpretation or relevant applicable basis.

From this Angle, one can learn foreign legislation,

in the advertising slogan application review content is

reasonable, according to the quality of the advertising

quality trial application: as a diversified law national

Ghana, its legal system by the British and American

traditional common law heritage, its legislation in the

field of law for unfair competition is relatively

mature. For example, the laws of the Prevention of

Unfair Compensation Act (UCA) and the Public

Health Law (PHA) provide some protection from

unfair competition in the use of labels and

advertisements. PHA integrates the connotation of

Article 102 (3) of the Paris Convention, prohibiting

false or misleading statements through means such as

advertising and causing confusion to competition,

emphasizing that advertising should pay attention to

the impact on goodwill and reputation, and do not

compare or hype (Kunko, 2024). From the

perspective of trademark application, in addition to

judging the significance of the communication

influence of advertising (such as reputation), its

content should also be substantially reviewed, and

trademark protection should be granted within the

scope of "good faith" significance.

4.3 Build a Legal System Balancing

Public Interest and Trademark

Rights

Based on the value direction of law, the public

freedom of expression as a public interest should take

precedence over the exclusive use of trademark. The

public expressive use of the content referred to a

trademark is not prohibited, even if the owner

possesses the monopoly on a certain kind. Especially

IESD 2025 - International Conference on Innovative Education and Social Development

the frequently involving descriptive meaning, the

meaning of the specific indication signs must give

way to commercial freedom of expression (Fu, 2021).

Even if the competitors put forward similar

expressions, those are not definitely considered as

infringement, and must be combined with usage

context, competitive nature, reasonable limitation to

expression and other specific aspects, under the

perspective of the public interest.

In the process of judicial recognition, the balance

between the exclusive right of trademark and the

freedom of public expression should be balanced, and

the principle of public interest priority should be

implemented through judicial practice. When judging

whether the advertising slogan has gained

significance through actual use, consider public

interest factors—for example, analyze whether the

use of an advertising slogan as a trademark only

causes healthy competition. If so, it tends to support

trademark protection, and the legal protection should

aim to protect the commodity and service information

delivered by advertisements from being confused by

malicious use; if not, it is necessary to carefully judge

the social effect caused by malicious competition and

monopoly use, focusing on the public interest (Bhatia,

2022). In this way, it not only avoids the abuse of

rights and the waste of social resources caused by the

malignant advertising trademark application, but also

better protects the free growth of unique advertising

creativity in the public view, encourages the creation

of high-quality advertising, and promotes the good

operation of the economic market.

5 CONCLUSION

This study identifies the primary challenges in

registering text-based advertising slogans as

trademarks, particularly in demonstrating "acquired

distinctiveness". Public perceptions often emphasize

slogans' promotional nature over their ability to

identify sources, requiring evidence of a functional

shift through practical use. Legislative refinements

are needed to clarify the standards for achieving

distinctiveness, drawing on international models to

better address the complexities of advertising slogans.

Concurrently, judicial practices must evaluate the

quality and impact of slogans, considering creativity,

competition, and public interest.

By exploring the theoretical and practical aspects

of acquired distinctiveness, this research offers

judicial recommendations for assessing whether

advertising slogans have achieved distinctiveness

through use. Future studies should delve deeper into

balancing industry competition and public interest,

addressing conflicts between trademark rights and

freedom of expression to ensure fair and efficient

trademark recognition.

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