abstract

From the LV v. Moli Naibai case, it is evident that the deep-seated contradictions within China’s intellectual property system remain unshaken. This article points out that the core of this contradiction is not a simple issue of legal application, such as "whether registration is possible" or "the scope of exclusivity," but rather lies in the current trademark examination system’s lack of a mechanism to identify and filter out public cultural resources. Through analyzing the exclusivity boundary of trademark rights and the public attribute protection of traditional cultural resources, this article aims to demonstrate the necessity of establishing a "mechanism for the confirmation of rights and early warning of public cultural resources" and proposes a collaborative improvement path involving legislation, administration, and judiciary.

Traditional cultural resources; trademark registration; public domain; structural dilemma; institutional construction

1. Problem Statement: A New Controversy over an "Old Problem"

Around 2025, LV launched a large-scale rights enforcement campaign based on its registered "four-leaf clover" graphic trademark, targeting numerous domestic companies that used four-leaf clover designs in their branding and packaging. Among them, the new-style tea brand "Jasmine Naicha" became a focal point due to its store décor, brand usage, and packaging designs featuring multiple four-leaf clovers. Two opposing voices emerged in public opinion: one side argued that foreign companies are "preemptively registering" traditional Chinese cultural symbols through the trademark system, labeling it as "cultural appropriation"; the other side pointed out that trademark rights are established and exercised in accordance with the law and should not be treated differently based on nationality.

However, the debate on both sides remains at the superficial level of "whether it should be registered" or "who has a more reasonable claim to register." The truly pressing institutional question is: Why can a graphic symbol originating from the realm of public culture easily pass trademark examination and be incorporated into the sphere of private rights? Should trademark examiners reject it on the grounds of lacking distinctiveness? Once registered, how far does its exclusive effect extend? Does the current system have sufficient mechanisms to distinguish between "original expression" and "appropriation of public resources"?

If clear answers cannot be given to these questions, then whether it is condemning foreign companies for asserting their rights or encouraging local companies to "occupy first out of respect," it is nothing more than a cycle of competition within the same flawed set of rules.

II. The True Boundary of Trademark Exclusivity: Not "Monopolizing Patterns," but "Preventing Confusion"

To understand the above dilemma, we must first dispel a widespread cognitive misconception: trademark rights do not protect a particular graphic symbol itself, but rather the "source-identifying function" that the symbol has formed in consumers' minds through commercial accumulation and use.

Article 57 of China's Trademark Law stipulates that using, without permission, an identical or similar mark on the same or similar goods as a registered trademark, which is likely to cause confusion, constitutes infringement. The core element here is always "likelihood of confusion." In other words, what the law prohibits is not the use of a four-leaf clover pattern by others, but rather the use of such a pattern in a trademark manner that is sufficient to cause the relevant public to mistakenly believe that such use is associated with the trademark owner.

Thus, we can answer the many hypotheses mentioned above:

If a company registers a four-leaf clover as a trademark for clothing, and another company uses it as a background decorative pattern on jewelry, as long as the pattern is not prominently used to indicate the source of the goods, it does not constitute trademark use and does not fall within the scope of infringement.

If an enterprise registered a four-leaf clover trademark forty years ago but has not gained distinctiveness or well-known status through long-term use, its exclusive rights will be strictly limited to the designated category of goods and cannot be used to oppose others' legitimate descriptive or ornamental use.

There is no legal causal relationship between the nationality of a trademark owner and the legitimacy of enforcing their rights. Before the law, the identity of the registered entity does not alter the constitutive elements of the right itself.

Therefore, the claim that "once registered, others cannot use that cultural symbol at all" is not legally valid. However, even if it ultimately does not constitute infringement, the defendant must still bear significant time and financial costs in the legal process.

III. The Essence of the Structural Dilemma: Public Resources Lack "Institutional Guardrails"

If the legal provisions themselves have already reserved sufficient space for the public domain, why do disputes repeatedly arise? The crux of the problem lies in the lack of a mechanism for formal identification and substantive blocking of public cultural resources during the trademark registration examination process in China.

Specifically:

First, the review process lacks a database and reference framework for public cultural resources.

When determining whether an application has distinctiveness or falls under signs that are not registrable, trademark examiners primarily rely on the "Trademark Examination and Adjudication Guidelines" and prior case precedents, but are not required to compare against a public resource database of "national or regional traditional patterns, ethnic totems, historical symbols," etc. This means that a design merely copied from Dunhuang murals, Miao embroidery, or bronze ware motifs is generally considered "distinctive" and allowed for registration, as long as it does not directly reproduce another person's registered trademark.

Second, the allocation of the burden of proof in opposition and invalidation proceedings is unfavorable to the defenders of public interest.

According to Article 44 of the Trademark Law, a trademark registered by "other improper means" may be declared invalid. However, "damage to public cultural resources" is not a statutory ground for invalidation under "other improper means." If the public or cultural institutions wish to cancel such trademarks, they need to prove that the trademark lacks distinctiveness or that the registrant acted in bad faith—both of which are difficult to establish when dealing with artistically modified traditional cultural symbols.

Third, the logic of "first possession is private ownership" is continuously reinforced in practice.

Due to the lack of a clear early warning mechanism in the public domain, once a registrant obtains a trademark certificate, they gain a presumption of validity. Under this premise, even if their enforcement actions involve overly broad interpretations, it is difficult for the accused party to obtain swift relief through simple defenses. This leads a large number of small and medium-sized operators to either change their names or settle for a fee, further reinforcing the social perception of "whoever registers owns it."

Thus, the so-called structural dilemma does not refer to trademark law's outright refusal to recognize the existence of public resources, but rather to the lack of a systemic interface within the institutional framework that can transform "public cultural resources" into reviewable, defensible, and early-warning mechanisms. It is precisely the absence of this interface that allows commercial entities to legally and at low cost appropriate public symbols into private ownership.

IV. Theoretical Reflection: The Reasonable Boundary Between Trademark Rights and the Public Domain

From the perspective of intellectual property jurisprudence, the original purpose of the trademark system is not to encourage the creation of new symbols, but to maintain market order and reduce consumers' search costs. In this regard, trademark rights do not inherently preclude the use of symbols from the public domain—the key lies in whether such use is attached with "commercial goodwill" sufficient to identify the source.

However, when a cultural symbol is privatized through trademark registration by a market entity, even if the law preserves the legitimate space for others to use it (such as non-trademark use), in practice the symbol may still be perceived by the public as having a fixed association with that entity. This is the phenomenon known as "secondary meaning" in trademark law. If this "secondary meaning" is established through substantial commercial investment and advertising efforts, then the protection it receives is justified. However, if the registrant merely reproduces a public symbol without sufficient original creative input or accumulation of commercial goodwill, the basis for its exclusive claim over the symbol becomes tenuous.

Therefore, the real issue is not whether "traditional cultural resources can be registered as trademarks," but rather under what conditions, after what degree of original transformation, and in which categories of goods they may be permitted to register, as well as how to define a reasonable boundary between their exclusive rights and public reservation after registration.

5. Path to Institutional Improvement: From "Post-Event Dispute" to "Pre-Event Warning"

In response to the above predicament, the following three paths are worth exploring:

(1) Establish a linkage mechanism between a national digital database of traditional cultural resources and trademark examination.

The cultural and tourism departments, in collaboration with the National Intellectual Property Administration, shall establish a publicly searchable database of public cultural resources such as traditional patterns, folk art, and historical symbols, and embed it into the trademark examination system. When reviewing applications involving traditional elements, examiners shall proactively search this database and clearly state in the examination opinions whether the application constitutes direct appropriation of public resources.

(II) Add a "Public Resource Declaration" system.

For trademark registration applications derived from traditional cultural resources, the applicant is required to proactively declare the source of the pattern and submit a description of differentiation from public resources. If the applicant cannot prove that they have made a substantial original interpretation, or that their use has been recognized or authorized by the source community, the examiner may accordingly lower the assessment of its distinctiveness or impose restrictive conditions on its use.

(3) The judicial process should appropriately introduce the defense rule of "public reservation".

In infringement litigation, when the defendant argues that the disputed mark belongs to a cultural symbol in the public domain, the court should conduct a substantive review and may confirm through judicial judgment whether the specific symbol falls within the public cultural domain, thereby limiting the excessive expansion of trademark exclusive rights on a case-by-case basis.

VI. Conclusion

The "four-leaf clover" dispute between LV and Jasmine Milk Tea is not an isolated case, but rather an inevitable cultural collision that occurs when China's intellectual property system encounters traditional cultural resources. The crux of the issue lies not in rejecting the reasonable use of cultural elements by commercial entities, nor in completely prohibiting the trademark registration of traditional symbols, but in establishing a set of institutional guardrails that can clearly distinguish between "public ownership" and "private domain."

Only when the public sphere has institutional carriers that are searchable, identifiable, and challengeable can the privatization of trademark rights avoid evolving into an invisible occupation of the common cultural heritage. This is precisely the reform direction called for by the "structural dilemma": not to reject the trademark system, but to enable it, while protecting commercial innovation, to learn to recognize and respect those cultural memories that belong to no one, yet belong to everyone.