Legislation
The Trademark Law is enacted to improve the administration of trademarks, protect the exclusive right to use a trademark, and encourage producers and traders to guarantee the quality of their goods and services and maintain the reputation of their trademarks, with a view to protecting the interests of consumers, producers and traders and promoting the development of the socialist market economy.
Trademark Law & Implementing Regulations
Trademark Law: Adopted by the Standing Committee of the National People's Congress on August 23, 1982 and came into effect on March 1, 1983; amended for the first time on February 22, 1993; amended for the second time on October 27, 2001; amended for the third time on August 30, 2013; amended for the fourth time on April 23, 2019 and came into effect on November 1, 2019.
Implementing Regulations: Promulgated by the State Council on August 3, 2002; amended on April 29, 2014 and came into effect on May 1, 2014.
Conventions
China became a member of the Convention Establishing the World Intellectual Property Organization on June 4, 1980, the Paris Convention for the Protection of Industrial Property on March 19, 1985, the Madrid Agreement Concerning the International Registration of Marks on October 4, 1989, the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks on August 9, 1994, the Protocol relating to the Madrid Agreement Concerning the International Registration of Marks on December 1, 1995 and the Marrakesh Agreement Establishing the World Trade Organization on December 11, 2001.
Trademark Administration
The Trademark Office of the China National Intellectual Property Administration (the CNIPA) is responsible for the registration and administration of trademarks in China, as well as the settlement of disputes relating to trademarks.
The CNIPA is responsible for conducting the operational guidance and policing of trademark enforcement, including formulating and guiding standards of trademark enforcement.
State Administration for Market Regulation is responsible for the organization and overall guidance of trademark enforcement.
Registered Trademark & Exclusive Right
A registered trademark can be obtained after being approved and registered by the Trademark Office through the registration application procedures.
The registrant of the registered mark has the exclusive right to use the registered trademark as approved for the goods approved to register, which is protected by law.
The exclusive right to use a registered trademark shall be valid for a term of ten years starting from the date of registration, and can be renewed before the expiry of the term.
A non-registered mark can still be used in business activities of an entity or individual if the use is in compliance with the relevant regulations, but the owner of such mark has no exclusive right to use the mark.
However, such goods as cigarettes, cigars, packaged tobacco, electronic cigarettes and other new tobacco products must be produced or sold with an approved registered trademark. Without an approved registered trademark, such goods may not be produced or sold.
How to Obtain a Registered Trademark
To obtain a registration of a trademark on designated goods or services and seek a protection by law, the owner of the trademark should file a registration application before the Trademark Office,.
Please see “Outline of CN Trademark System_Basics I_Registering a Trademark” for the details.
Trademark Review and Adjudication
Trademark review and adjudication refers to administrative proceedings of review cases filed by the parties who are dissatisfied with the Trademark Office’s refusal decisions made for trademark registration applications, non-approval decisions made for opposed marks, cancellation or non-cancellation decision made for registered marks and decisions to declare registered marks invalid, as well as invalidation cases requested by the petitioners to declare registered trademarks invalid. These proceedings are all further regulated by the Rules for Trademark Review and Adjudication, and therefore very similar.
Review of Refusal
Where a trademark registration applicant is dissatisfied with the refusal decision of the Trademark Office made for the registration application, the applicant can apply to the Trademark Office for a review within 15 days upon receipt of the decision.
Necessary documents
For filing a review of refusal, a review application form including information about the applicant, the trademark registration application and the refusal decision, the clear request, grounds, and factual and legal basis, as well as the relevant evidence material shall be submitted.
Collegial panel
A collegial panel typically consisting of an odd number of trademark review and adjudication examiners, usually three or more, will be formed to hear the review case and implement the principle of minority obeying the majority.
Acceptance
The Trademark Office will, after examination, accept the review application if it meets the requirements and send to the applicant the acceptance notice.
If the review application does not comply with the related regulations but can be rectified, the Office will notify the applicant to make rectifications, and the applicant shall make rectifications within 30 days from the date of receipt of the notice. If the rectifications are not made on time, the applicant shall be deemed to have withdrawn the review application. If the application still does not comply with the regulations after rectifications, the Office will not accept the application and notified the applicant.
Refusal
After a review application is accepted, if it is found that it does not meet the acceptance conditions, for example, the applicant withdrew the trademark review application and then submits a review application again based on the same facts and grounds, or submits a review application again based on the same facts and grounds for a ruling or decision that has already been made by the Office, the Office will refuse the review application and notify the applicant.
Decision
The Trademark Office will make a decision within nine months from the receipt of the review application and notify the applicant.
Relief
Where the applicant is dissatisfied with the review decision, it/he may institute legal proceedings with Beijing Intellectual Property Court within thirty days from the receipt of the decision.
Where, at the expiration of the specified period, the applicant does not institute legal proceedings against the review decision, the review decision comes into effect.
Review of Non-Approval
Where the applicant for registration of a trademark opposed is dissatisfied with the non-approval decision of the Trademark Office made for the opposition, it/he may apply for a review to the Trademark Office within fifteen days from the receipt of the decision.
Necessary documents
For filing a review of non-approval, a review application form including information about the applicant, the trademark opposed and the non-approval decision, the clear request, grounds, and factual and legal basis, as well as the relevant evidence material shall be submitted.
Collegial panel
A collegial panel typically consisting of an odd number of trademark review and adjudication examiners, usually three or more, will be formed to hear the review case and implement the principle of minority obeying the majority.
Acceptance
The Trademark Office will, after examination, accept the application if it meets the requirements and send to the applicant the acceptance notice.
If the review application does not comply with the related regulations but can be rectified, the Office will notify the applicant to make rectifications, and the applicant shall make rectifications within 30 days from the date of receipt of the notice. If the rectifications are not made on time, the applicant shall be deemed to have withdrawn the review application. If the application still does not comply with the regulations after rectifications, the Office will not accept the application and notified the applicant.
Refusal
After a review application is accepted, if it is found that it does not meet the acceptance conditions, for example, the applicant withdrew the trademark review application and then submits a review application again based on the same facts and grounds, or submits a review application again based on the same facts and grounds for an adjudication or decision that has already been made by the Office, the Office will refuse the review application and notify the applicant.
Serving the application
The Trademark Office will send a copy of the review application and evidence materials to the opponent timely.
Observation/response
The opponent has 30 days after receipt of the copy to file an observation/response. If the opponent does not file an observation, the Trademark Office will conduct the review in absentia.
Supplement
Where any of the parties concerned needs to supplement the relevant evidence after filing either the review application or response to the application, the party shall state the supplement to be filed in the review application or response, and then submit the evidence within three months after filing the review application or submitting the response.
If the party fails to do so within the specified time period, it shall be deemed that the party has waived the right to supplement the evidence.
Provided that the evidence is formed after the expiration of the specified time period or the failure to submit the evidence before the expiration of the specified time period is due to other justified reasons, where the evidence is submitted after the expiration of the specified time period, the Trademark Office will send the evidence to the other party concerned and may admit the evidence after the cross-examination of the parties.
Oral hearing
The Trademark Office may decide to hold an oral hearing on the review application based on the request of the parties or actual needs.
If the Trademark Office decides to hold an oral hearing, it will notify the parties in writing 15 days before the oral hearing, informing them of the date, location and examiners of the oral hearing. The parties shall respond within the time limit specified in the notice.
If the applicant does not respond or participate in the oral hearing, its/his application shall be deemed withdrawn, and the Trademark Office shall notify the applicant. If the opponent does not respond or participate in the oral hearing, the Trademark Office will conduct the review in absentia.
Settlement
During the review proceedings, the parties may reach a settlement in writing on their own or through mediation. If the parties reach a settlement, the Trademark Office may close the case or make a decision or ruling.
Withdrawal
During the review proceedings, before the Office makes the decision or ruling, the applicant may withdraw the review application and state the reasons. If the withdrawal application is in compliance with the relevant provisions, the Office will approve the withdrawal and terminate the review proceedings.
Suspension/Stay
During the review proceedings, if the determination of the prior rights involved must be based on the results of another case being heard by the court or handled by the administrative authority, the Trademark Office may suspend the review. After the reasons for suspension are eliminated, the review proceedings shall be resumed.
Decision
The Trademark Office will make a review decision within twelve months from the receipt of the review application and notify the review applicant (the opposed party in the opposition proceedings) and the opponent.
Relief
Where the review applicant (the opposed party in the opposition proceedings) is dissatisfied with the review decision, it/he may institute legal proceedings with Beijing Intellectual Property Court within thirty days from the receipt of the decision.
Where, at the expiration of the specified period, the applicant does not institute legal proceedings against the review decision, the review decision comes into effect.
Invalidation Proceedings
The grounds for declaring a registered trademark invalid can be divided into the following two categories.
Absolute grounds
Where a registered trademark constitutes a violation of the law in the following circumstances, the Trademark Office will declare the registered trademark invalid, and any other entity or individual may request the Trademark Office to declare the registered trademark invalid:
- Trademarks applied for registration in bad faith and not intended for use (Article 4);
- Signs prohibited from use as a trademark (Article 10);
- Non-registrable signs (Article 11);
- Non-registrable three-dimensional signs (Article 12);
- Other marks shall not be registered by trademark agencies (Article 19(4)); or
- Trademarks applied for registration by fraud or other unfair means.
Relative grounds
Where a prior right owner or any interested party believes that a registered trademark constitutes a violation of the law in the following circumstances, the owner or party may request the Trademark Office to declare the registered trademark invalid within five years from the date of trademark registration; for malicious registration, the owner of a well-known trademark is not subject to the five-year time limit:
- Trademark conflicting with well-known marks (Article 13(2) & (3));
- Trademarks applied for by an agent, representative, or related party without the right holder’s authorization (Article 15);
- Geographical indications that mislead the public (Article 16 (1));
- Trademarks that do not comply with relevant regulations or is identical or similar to trademarks that are previously registered or preliminarily approved (Article 30);
- Trademarks that constitute a violation of the provisions that “for applications not filed on the same day, the one filed earlier shall be preliminarily approved; for applications filed on the same day, the one that was used earlier shall be preliminarily approved” (Article 31); and
- Trademarks infringing another party’s existing prior rights or filed via unfair means for preemptive registration (Article 32).
Necessary documents
For filing an application to declare a registered trademark invalid, an application form including information about the trademark to be declared invalid, the clear request, grounds, and factual and legal basis, as well as the relevant evidence material and certificates of the invalidation petitioner’s identity shall be submitted.
For relative grounds, the petitioner shall submit certificates to prove that the petitioner is a prior right holder or an interested party.
Collegial panel
A collegial panel typically consisting of an odd number of trademark review and adjudication examiners, usually three or more, will be formed to hear the invalidation case and implement the principle of minority obeying the majority.
Acceptance
The Trademark Office will, after examination, notifies the petitioner to pay official fees if the invalidation application meets the requirements of acceptance, and after receiving the official fees send the acceptance notice to the petitioner.
If the invalidation application does not comply with the related regulations but can be rectified, the Office will notify the petitioner to make rectifications, and the petitioner shall make rectifications within 30 days from the date of receipt of the notice. If the rectifications are not made on time, the petitioner shall be deemed to have withdrawn the review application.
If the invalidation application does not comply with the regulations, for example, it is not filed within the statutory period, the petitioner's legal status and the grounds for invalidation do not comply with the regulations, there are no clear grounds, facts and legal basis for invalidation, etc., the Trademark Office will not accept the application and will notify the applicant.
Refusal
After an invalidation application is accepted, if it is found that it does not meet the acceptance conditions, for example, the petitioner withdrew an invalidation application and then submits an invalidation application again based on the same facts and grounds, or submits an invalidation application again based on the same facts and grounds for a ruling or decision that has already been made by the Office, the Office will refuse the invalidation application and notify the petitioner.
Serving the application
The Trademark Office will timely send a copy of materials related to the invalidation application to the trademark registrant at issue.
Responses
The he trademark registrant at issue has 30 days after receipt of the copy of invalidation materials to file a response, outlining their arguments against the invalidation. If the registrant does not file a response, the Trademark Office will conduct adjudication in absentia.
Supplement
Where any of the parties concerned needs to supplement the relevant evidence after filing either the invalidation application or response to the application, the party shall state the supplement to be filed in the invalidation application or response, and then submit the evidence within three months after filing the invalidation application or submitting the response.
If the party fails to do so within the specified time period, it shall be deemed that the party has waived the right to supplement the evidence.
Provided that the evidence is formed after the expiration of the specified time period or the failure to submit the evidence before the expiration of the specified time period is due to other justified reasons, where the evidence is submitted after the expiration of the specified time period, the Trademark Office will send the evidence to the other party concerned and may admit the evidence after the cross-examination of the parties.
Oral hearing
The Trademark Office may decide to hold an oral hearing on the invalidation application based on the request of the parties or actual needs.
If the Trademark Office decides to hold an oral hearing, it will notify the parties in writing 15 days before the oral hearing, informing them of the date, location and examiners of the oral hearing. The parties shall respond within the time limit specified in the notice.
If the petitioner does not respond or participate in the oral hearing, its/his invalidation application shall be deemed withdrawn, and the Trademark Office shall notify the petitioner. If the registrant at issue does not respond or participate in the oral hearing, the Trademark Office will conduct the review in absentia.
Withdrawal
During the adjudication, before the Office makes the decision or ruling, the petitioner may withdraw the invalidation application and state the reasons. If the withdrawal application is in compliance with the relevant provisions, the Office will approve the withdrawal and terminate the invalidation proceedings.
Settlement
During the adjudication of the Office, the parties may reach a settlement in writing on their own or through mediation. If the parties reach a settlement, the Trademark Office may close the case or make a decision or ruling.
Suspension/Stay
During the adjudication of the Office, if the determination of the prior rights involved must be based on the results of another case being heard by the court or handled by the administrative authority, the Trademark Office may suspend the invalidation proceedings. After the reasons for suspension are eliminated, the invalidation proceedings shall be resumed.
Decision/Adjudication
In the case of absolute grounds, the Trademark Office will make a decision to declare the registered trademark invalid and notify the trademark registrant at issue.
For an invalidation application based on absolute grounds, the Trademark Office will make a ruling to maintain the registered trademark or declare the registered trademark invalid within nine months from the date of receipt of the invalidation application after investigation, verification and examination, and notify the parties.
For an invalidation application based on relative grounds, the Trademark Office will make a ruling to maintain the registered trademark or declare the registered trademark invalid within twelve months from the date of receipt of the invalidation application after investigation, verification and examination, and notify the parties in writing.
If finding that the grounds for invalidation are not justified, the Trademark Office will make a ruling to maintain the registered trademark.
If finding that the grounds for invalidation are justified, the Trademark Office will make a ruling to declare the registered trademark invalid.
If the grounds for invalidation are only justified for a part of the designated goods, the trademark registration will be declared invalid on the part of the designated goods.
Relief
Where the trademark registrant at issue dissatisfies with the Office’s own invalidation decision based on the absolute grounds, it/he may apply for a review to the Trademark Office within fifteen days from the receipt of the decision. Where, at the expiration of the specified period, the registrant does not apply for the review of the invalidation decision, the decision of the Office comes into effect.
Where the parties concerned dissatisfy with the ruling to maintain the registered trademark or declare the registered trademark invalid made by the Office for the invalidation application based on the absolute grounds, it/he may institute legal proceedings with Beijing Intellectual Property Court within thirty days from the receipt of the ruling. Where, at the expiration of the specified period, the parties concerned do not institute legal proceedings against the ruling, the ruling of the Office comes into effect.
Where the parties concerned dissatisfy with the ruling to maintain the registered trademark or declare the registered trademark invalid made by the Office for the invalidation application based on the relative grounds, it/he may institute legal proceedings with Beijing Intellectual Property Court within thirty days from the receipt of the ruling. Where, at the expiration of the specified period, the parties concerned do not institute legal proceedings against the ruling, the ruling of the Office comes into effect.
Review of Invalidation Decision
Where the trademark registrant dissatisfies with the Office’s own decision to declare its trademark registration invalid based on the absolute grounds that the trademark registration violates the related regulations, it/he may apply for a review to the Trademark Office within fifteen days from the receipt of the decision.
The review proceedings are the same as other review proceedings mentioned above (e.g. review of refusal, review of non-approval), and therefore no details will be repeated here.
The Trademark Office will make a review decision within nine months from the date of receipt of the review application and notify the parties concerned.
If the parties concerned are dissatisfied with the review decision of the Trademark Office, they may institute legal proceedings with Beijing Intellectual Property Court within thirty days from the receipt of the review decision.
Where, at the expiration of the specified period, the parties concerned do not institute legal proceedings against the decision, the review decision of the Office comes into effect.
Validity of an Invalidation Decision
Where a registered trademark is declared invalid, the Trademark Office shall publish the invalidation, and the exclusive right to use the trademark is deemed never to have existed.
A decision or ruling on declaring a registered trademark invalid shall have no retroactive effect on any judgment, ruling, mediation, or any decision on a trademark infringement case made and already enforced by the people's court, nor on any decision on any trademark infringement case made and already enforced by the administration authority, and nor on any trademark assignment contract or trademark license contract already performed prior to the declaration of the registered trademark invalid. However, the damage caused to other persons in bad faith of the trademark registrant shall be compensated.
If not returning the monetary damage for trademark infringement, the fees for trademark assignment, or fees for trademark licensing pursuant to the above provisions, is obviously contrary to the principle of equity, then the preceding damage or fees shall be returned in whole or in part.
Review of Cancellation or Non-Cancellation Decision
If the registrant or the cancellation applicant is dissatisfied with the decision of the Trademark Office to cancel or not cancel a registered trademark, it/he may, within fifteen days from receipt of the decision, apply for a review to the Trademark Office.
The review proceedings are the same as other review proceedings mentioned above (e.g. review of refusal, review of non-approval), and therefore no details will be repeated here.
The Trademark Office will make a review decision within nine months from the date of receipt of the review application and notify the parties concerned.
If the parties concerned are dissatisfied with the review decision of the Trademark Office, they may institute legal proceedings with Beijing Intellectual Property Court within thirty days from the receipt of the review decision.
Where, at the expiration of the specified period, the parties concerned do not institute legal proceedings against the decision, the review decision of the Office comes into effect.
Recusal
A member of staff from the Trademark Office shall be recused, on his or her own initiative or upon the request of the parties concerned or any other interested person, from exercising his or her function, where any of the following events occurs:
1) where he or she is a close relative of the party concerned or the agent of the party concerned;
2) where he or she has any other kinds of relations with the party concerned or with the agent of the party concerned that may influence impartial examination; or
3) where he or she has an interest in the application for trademark registration or other trademark matters at issue.
Recent Statistical Data
In 2024
China accepted 416,000 applications for various types of trademark reviews and adjudicated 383,000 cases of trademark reviews.
In 2023
China accepted 410,900 applications for various types of trademark reviews and adjudicated 373,400 cases of trademark reviews.
In 2022
China accepted 422,700 applications for various types of trademark reviews and adjudicated 411,700 cases of trademark reviews.
In 2021
China accepted 473,000 applications for various types of trademark reviews and adjudicated 383,000 cases of trademark reviews.
In 2020
China accepted 367,000 applications for various types of trademark reviews and adjudicated 358,000 cases of trademark reviews.
If you have any question about the protection of intellectual property rights, please feel free to send us emails. For patent-related matters, please send to info@afdip.com. For trademark/litigation/legal matters, please send to info@bhtdlaw.com.
