3. Marks devoid of distinctiveness
　　Marks designating a geographical origin could not be registered as a trademark under the EC TM regulation because of lacking the distinctiveness, but the TM regulation set out an exemption as: “Paragraph 1 (b), (c), and (d) shall not apply if the trademark has become distinctive in relation to the goods and services for which registration is requested in consequence of the use which has been made of it”. The law of trademark in China has the similar provisions, but it maintains the trademark rights to the owners that has used and registered their marks, such as ‘Qingdao’ for beer. Thus, under the TM Regulation, the use of marks could not be necessarily treated as a CTM unless the consequence of use leads to the products or services for which the registration is requested distinctive from the others.　In a leading case in ECJ, a trademark--- ‘Cheimsee’ for sportswear is using the name of a well-known lake in Germany, but the Court held that ‘Cheimsee’ had been used for sportswear in a considerable time and the average consumers had recognized the direct link between the mark and the products rather than the name of lake. This link makes the mark distinctive, so it could be continually treated as a valid trademark. This case states the main point of a trademark is its distinctiveness rather than the merely geographical character.
　　A contrastive case in the UK could help to explain the point. A company, British Sugar, used ‘Treat’ as a mark of its products since 1986 and registered as a trademark in 1992. Its validity of registration was challenged in 1995. The court held that even this mark had been used before and after the registration for almost ten years, but the word ‘treat’ was common in everyday used by English-speaking people. It was not recognized by the public in a trademark sense, and then it has no distinctive function that a trademark requires. The Article 11 of the Law of Trade Mark of P. R. China 2001 sets out the similar provision as the EC TM Regulation but it precludes the geographical names of the administrative divisions as or above county level.

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