Using Someone Else's Trademark Fairly in China: Descriptive and Nominative Use
According to Reuters and other media, a federal judge in Pennsylvania on 2 October 2026 denied Starbucks' motion to dismiss a lawsuit by Workers United. The union asks the court to declare that its use of the name "Starbucks Workers United" and an adapted logo with a raised fist does not infringe Starbucks' marks; it argues this is nominative use that simply says it is an organisation of Starbucks employees (news). This is a procedural step and nothing has been decided. But the question is a common one: when may someone else mention your trademark? In China, resellers, repair shops, accessory makers and comparative advertisers run into this line every day, and foreign brand owners need to know where it sits.
Two kinds of fair use
- Descriptive use: using a generic or descriptive word that happens to be part of a registered mark, to describe one's own goods.
- Nominative (referential) use: mentioning another party's mark because it is needed to explain how one's own goods or services relate to that brand, such as "compatible with" or "repairs for".
In both cases the purpose is to state a fact, not to use the other party's mark as a sign of origin for one's own goods.
Descriptive use is written into the law
Under Article 59(1) of the current Trademark Law, where a registered mark contains the generic name, design or model of the goods, words that directly describe their quality, main raw materials, function, use, weight, quantity or other features, or a place name, the owner cannot prohibit others from using those elements in good faith.
The key is "in good faith". A descriptive word displayed like a brand, in a typeface that imitates the mark, may stop being description and become free-riding.
Nominative use: three questions
The Trademark Law has no specific article on it. Chinese courts generally ask:
- Is it necessary? Could the business describe its goods or services without naming the brand? Spare parts must state compatible models; repair shops must say which brands they fix.
- Is it proportionate? Plain words, no more than needed: no logo, no distinctive typeface, and the other mark not more prominent than the user's own name.
- Does it suggest a connection? It must not imply authorised dealership, official after-sales service or partnership. Without authorisation, words like "official", "authorised" or "designated" should not appear.
Reselling genuine goods and naming the brand is generally a fair way to describe the goods. Using the brand as a shop name or online store name, or calling the shop a "flagship" or "exclusive" store, easily suggests authorisation.
Typical situations
| Situation | Safer | Riskier |
|---|---|---|
| Parts and consumables | "Compatible with Brand A model X", own brand leading | Brand A dominates; own brand small or absent |
| Repairs | "We repair Brand A, B and C devices", stated as independent | "Brand A service centre", using A's logo |
| Second-hand and resale | Brand and model stated accurately in the listing | Brand used as shop name or avatar; "official" claims |
| Comparative advertising | Objective, verifiable data | Disparaging the competitor, or using its logo |
China's Advertising Law also prohibits advertisements that disparage other businesses' goods or services, and comparisons must be true and verifiable.
What foreign brand owners can do
- Sort the uses: plain-word references by resellers, repairers or fans that only state facts are usually hard to stop and rarely worth fighting. Adapted logos, merchandise, "official" claims and shop names using your brand are where to act.
- Write rules into distribution contracts: how distributors may use your marks and logos, what they must remove when the relationship ends.
- Act through the right channel: marketplace complaints for listings, see taking down counterfeits on Chinese platforms; demand letters or enforcement for shop names and logos.
- Register your Chinese brand name, so that use of the Chinese version can be judged against a registration; see choosing a Chinese brand name.
FAQ
Is "same as Brand A" in a listing acceptable? Risky. It can be seen as free-riding on goodwill and may also be false advertising; describe specifications and uses instead.
How does this relate to company names? Registering someone else's mark as a company trade name is a more serious problem; see company names vs trademarks in China. For a larger company using your brand, see when a bigger company uses your brand name.
Will the 2027 revised law change this? The revised Trademark Law takes effect on 1 January 2027 and renumbers some articles. This guide cites the current law; check the new text once it applies.
J&C Intellectual Property Agency (JCIPO), founded in 2008, is a CNIPA-recorded trademark agency and a member of the China Trademark Association. We handle clearance searches, filings, oppositions, invalidations and enforcement in China; see our trademark enforcement service. Patent filings are handled through an affiliated patent agency.
