Following the Intellectual Property Enterprise Court’s decision Dryrobe v Caesr, the court has again considered issues of descriptiveness, distinctiveness and genericism.

Published: 6 March 2026
Authors: Richard Blatchly

Decision: Wang Zeng International Ltd v Bing Bing Foods Ltd & Ors [2026] EWHC 360 (IPEC)
Court: Intellectual Property Enterprise Court
Judge: Her Honour Judge Melissa Clarke
Judgment: Here
Issues: Descriptiveness, distinctiveness, genericism, bad faith

Introduction

Following the Intellectual Property Enterprise Court’s decision Dryrobe v Caesr, the court has again considered issues of descriptiveness, distinctiveness and genericism.

Here, Wang Zeng alleged that Bing Bing infringed its trade marks for MOUNTAIN PEAR and YU LU FRAGRANT PEAR for Asian pears sold in the UK.  Bing Bing denied infringement and counterclaimed that the trade marks were invalid on the basis, among other things, that the marks were devoid of distinctive character, descriptive, and had become generic.

The trade marks & alleged infringements

Wang Zeng relied on four trade marks covering fresh fruit and related retail services. These included the English-language terms "MOUNTAIN PEAR" and "YU LU FRAGRANT PEAR" as well as their Chinese character equivalents. It was accepted that both Chinese-language signs translated directly into the corresponding English terms. Bing Bing was using those terms on packaging for its pears.

The defences & counterclaims

Bing Bing asserted that the pear names, MOUNTAIN PEAR and YU LU FRAGRANT PEAR were the variety names of the pear. It argued, therefore, that the use of the signs did not affect the “essential functions” of the trade marks and their use was descriptive of their kind and quality and in accordance with honest commercial practices in accordance with s. 11(2) of the Trade Marks Act 1994 (TMA).

Bing Bing also sought to invalidate and revoke all four marks on the following grounds:

• s.3(1)(b), TMA: Devoid of distinctive character
• s.3(1)(c), TMA: Descriptive of kind, quality or characteristics
• s.3(1)(d), TMA: Customary in current language or established trade practice
• s.3(6), TMA: Applications made in bad faith
• s.46(1)(c), TMA: Marks had become generic in consequence of acts or inaction of the proprietor

Issues

Broadly, the issues to be determined fell into the following principal groups:

Descriptiveness & distinctiveness

Here, HHJ Clarke rejected the defendants’ primary contention that MOUNTAIN PEAR and YU LU FRAGRANT PEAR were varietal names:

• for MOUNTAIN PEAR, the judge accepted unchallenged evidence that Wang Zeng had coined the term in 2019 as a brand for Gong pears newly introduced to the UK
• for YU LU FRAGRANT PEAR, although the Chinese characters referred to a known hybrid cultivar in China, the court held that there was no evidence this name was known in the UK at the relevant date

Genericism

HHJ Clarke was not convinced by the defendants’ evidence, which largely consisted of:

• screenshots from websites dated after the relevant dates
• documents from outside the UK with no evidence of UK consumer exposure
• testimony the judge found unreliable or contradictory

By contrast, Wang Zeng showed consistent use of the trade marks with ® symbols on packaging and active enforcement against unauthorised use. As a result, the counterclaim for revocation on grounds of genericism therefore failed.

Bad faith

The allegation that Wang Zeng sought an illegitimate monopoly over generic pear names was dismissed:

• the judge accepted Wang Zeng’s unchallenged evidence that the founder did not believe the terms were generic when the applications were filed
• evidence of other trade mark filings by Wang Zeng did not demonstrate a pattern of bad-faith conduct

Accordingly, all claims of invalidity were rejected, and Wang Zeng’s trade marks were found to be infringed.

Key issues considered

Descriptiveness & distinctiveness

The court rejected Bing Bing’s argument that the terms were varietal names:

• MOUNTAIN PEAR: The evidence showed that Wang Zeng had created the term in 2019 as branding for Gong pears when introducing them to the UK.
• YU LU FRAGRANT PEAR: Although this term was known in China as a hybrid cultivar name, there was no evidence that UK consumers were familiar with it at the relevant date.

Commentary

The case raises a number of interesting points:

• while pears are often grown near mountainous regions, the decision suggests that the threshold for distinctiveness in such contexts may be relatively low
• even though the Chinese characters for YU LU FRAGRANT PEAR described a known cultivar, the ability to register the English transliteration indicates that importers of new varieties may be able to obtain enforceable trade mark rights over names with descriptive origins, provided they are not familiar to UK consumers

Conclusion

The decision is a sharp reminder that in a crowded and competitive marketplace, brand protection is not a luxury, it is a commercial necessity.

At the core of the judgment is a clear and robust affirmation of fundamental trade mark principles,  principles that remain as relevant to everyday goods as they are to high profile brands. Most importantly: registration matters. Wang Zeng’s registered rights provided a solid foundation for enforcement.

The case is particularly significant because it confirms that meaningful trade mark protection is not limited to premium or high-profile brands. Even everyday products (such as fresh produce) can attract robust protection. Distinctiveness does not require creativity or complexity, it simply requires a mark to distinguish one trader’s goods from those of another. When it does, it becomes a valuable commercial asset the courts are willing to defend.

For brand owners, the judgment offers several clear, practical lessons:

• register early: proactive trade mark registration delivers powerful enforcement rights and significantly strengthens your position if disputes arise
• be consistent: regular, consistent use of branding builds distinctiveness, goodwill and reputation - all critical in infringement claims
• monitor the market: early detection of infringing activity allows swift, proportionate action before commercial or reputational harm escalates

The decision also highlights the appeal of IPEC as a forum increasingly favoured by businesses seeking efficient and cost effective resolution of intellectual property disputes. With active case management and capped recoverable costs, it offers a pragmatic and accessible route to enforcement for businesses of all sizes, not just household names.