This article was authored by Gavin Zuo (Partner, Beijing) and Jade Chen (Associate, Beijing) of Bird & Bird Lawjay association team.
I. Introduction
With the rapid development of virtual environments such as the metaverse, digital collectibles, and virtual fashion, the boundaries between physical and digital goods/services are increasingly blurred. Brands are actively entering these virtual spaces to promote their products/services. In this context, trademarks—once confined to physical goods and services—are now being used in virtual storefronts, digital wearables, and blockchain-based assets.
This evolution raises a critical legal question: Are virtual goods considered “similar” to their real-world counterparts? The answer has significant implications for trademark registration, enforcement, and infringement risk. Under the PRC Trademark Law, this article explores the concept of “similar goods” in virtual scenarios and outlines key considerations for brand owners and legal practitioners navigating this emerging landscape.
II. Trademark Use in Virtual Scenarios
In PRC, “trademark use” is defined under Article 48 of the PRC Trademark Law as the use of a trademark on goods, packaging, containers, trade documents, advertisements, exhibitions, and other commercial activities for the purpose of identifying the origin of goods/services. Traditionally, this definition has been applied to tangible goods and services.
However, in virtual environments, trademark use has evolved. Brands now offer digital versions of their products/services bearing trademarks on online platforms, including e-sports and virtual exhibition platforms. Although these uses do not involve physical goods or services, they serve similar commercial functions—such as building brand recognition and influencing consumer behavior. Therefore, protecting trademark registrants in virtual scenarios is commercially significant.
III. Legal Challenges in Defining “Similar Goods/Services” under PRC Law
Conceptually, similar goods are those that share commonalities in function, purpose, raw materials, sales channels, and target consumers. Similar services are defined by similarities in purpose, content, method, and service recipients. The use of identical or similar trademarks on such goods or services may lead the public to perceive a connection between them, causing confusion about the source.
In practice, the PRC usually use subclass system based on the Nice Classification to examine the similarity between the goods/services. Virtual goods often fall under Class 9 (includes software, downloadable digital goods, and virtual reality content) or Class 41 (relates to entertainment services, including online games and virtual exhibitions). However, their physical counterparts usually do not fall into Class 9 or Class 41. For instance, they may be “clothing” under Class 25, “car” under Class 12, etc. As a result, a trademark registered for physical goods may not automatically be protected against virtual goods unless they are deemed similar.
Except for well-known trademarks, the PRC Trademark Law generally does not support cross-class protection. Therefore, one of the key legal challenges is determining whether virtual goods or services are “similar” to physical ones, especially given the classification barriers.
IV. Case Study
Recent judicial practice in the PRC reflects a progressive shift toward protecting trademark rights in virtual scenarios. On September 8, 2025, the Hangzhou Intermediate People’s Court of Zhejiang Province released its list of the “Top Ten Typical IP Cases (2022–2025) Supporting High-Quality Development in Technological Innovation”. Among them, the case involving A Automotive Technology (Shanghai) Co., Ltd. (“Company A”) [Case No.: (2024) Zhe 0109 Min Chu No.1007 and (2024) Zhe 01 Min Zhong No.10520] stands out.
- BackgroundThe Plaintiff Company A is the trademark owner of the “乔治巴顿 (Qiao Zhi Ba Dun; G.PATTON)” automobile brand in China, with multiple registered trademarks under Class 12, covering vehicle-related goods. The Defendants were accused of unauthorized use of identical or similar marks in virtual co-branding within online games. Company A sought injunctive relief, reputational restoration, and damages.
- First Instance Judgment
The Xiaoshan District People’s Court initially ruled that the use of the marks in virtual vehicle models within games did not constitute trademark infringement. It held that virtual vehicles lacked the transportation function of real automobiles and they are different in terms of manufacture departments, sales channels, and consumers. Therefore, they were not considered “similar goods” under Class 12.
- Appeal and Second Instance Judgment
Company A appealed against the first instance judgment. The Hangzhou Intermediate People’s Court reversed the first instance judgment and issued the second instance judgment finding that the virtual vehicles in the game constitute similar goods to real-world automobile products. The reason is explained as follows:
In this case, although there are clear differences between virtual vehicle props used in games and real-world automobile products in terms of function, purpose, production departments, sales channels, and consumer groups, there remains a certain degree of overlap and convergence. For instance, in terms of function and purpose, virtual cars serve as in-game transport tools, allowing players to move quickly to designated locations or participate in racing competitions. These functions resemble the passenger transport role of actual automobiles. Moreover, virtual vehicles can simulate the exterior and interior design of real cars, creating a visual and structural connection with physical automobile products. Regarding sales channels and consumer groups, real automobiles are sold through professional channels such as dealerships and showrooms, targeting consumers with actual purchasing needs. In contrast, virtual vehicles are aimed at game players. However, through gameplay experiences, these players may develop interest in or awareness of the corresponding real-world automobile brands, leading to a partial overlap in consumer attention. From the perspective of public perception, game players may associate the automobile brand with the game itself, creating a perceived connection and potential confusion. Therefore, under certain circumstances, virtual vehicle props in games may be considered similar goods to real-world automobiles.
Finally, the court ordered the Defendants to cease infringement, eliminate adverse effects, and pay RMB 1 million in damages.
V. Practical Implications for Rights Holders
Given the evolving nature of virtual goods, brand owners in PRC may take proactive steps to protect their trademarks in virtual/digital scenarios. This includes expanding trademark coverage to Classes 9 and 41, and considering Article 13 of the PRC Trademark Law to seek cross-class protection for well-known marks. In addition, even without well-known status, courts may still recognize similarity based on market realities and consumer perception. Therefore, it is worthwhile for rights holders to pursue comprehensive protection strategies.
VI. Conclusion
As virtual goods and services become more prevalent, legal challenges under PRC Trademark Law are emerging. Determining whether virtual products are “similar” to physical ones remains complex due to classification barriers. Fortunately, recent judicial decisions show that the PRC courts are willing to go beyond rigid classifications to protect trademark rights. Brand owners should expand trademark coverage and actively monitor virtual use to safeguard their interests in this rapidly evolving landscape.
