Key Interpretation and Practical Guidelines on the Supreme People's Court's Provisions on Several Issues Concerning the Temporal Application of the Trademark Law of the People's Republic of China (Draft for Comments)
The newly revised Trademark Law of the People's Republic of China was adopted in 2026 and will come into effect on January 1, 2027. As the effective date of the new law approaches, a highly practical question arises: if a trademark case spans across January 1, 2027 (i.e. the legal facts involved continue after the new Trademark Law takes effect), should the new Trademark Law or the old law apply?
For example, a trademark application is filed in 2026, but the decision on the review of refusal is not made until 2027; or a trademark registered years ago is subject to an invalidation request filed by a third party after 2027. For such cases, the applicable version of the law cannot be simply determined by "when the court hears the case" or "when the case is accepted."
To address this issue, the Supreme People's Court published the Provisions on Several Issues Concerning the Temporal Application of the Trademark Law of the People's Republic of China (Draft for Comments) (hereinafter referred to as the "Draft for Comments ") in September 2026. Although the Draft for Comments has not yet officially come into effect, the various "temporal anchors" it establishes for different types of trademark cases have formulated clear rules for the transition between the old and new laws, which deserve the early attention of trademark applicants, rights holders, and legal practitioners.
I. Civil Trademark Disputes: Based on the "Time of Occurrence of the Legal Facts" Giving Rise to the Disputes
Article 1 of the Draft for Comments first establishes a fundamental rule of "non-retroactivity of law" for civil trademark disputes (such as trademark infringement disputes and trademark ownership disputes, etc.), which is primarily reflected in the following three aspects:
(1) Legal facts occurring after the implementation of the new law: the new law shall apply;
(2) (2) Legal facts occurring before the implementation of the new law: in principle, the Trademark Law and judicial interpretations in force at that time shall apply;
(3) Continuous acts spanning the old and new laws: if the legal facts continue from before the implementation of the new law to after its implementation, the new Trademark Law shall apply in principle.
Practical Tips: January 1, 2027, will not automatically subject all previously occurred trademark acts to the new law, but special attention must be paid to continuous acts that span the implementation dates of the old and new laws. For enterprises, if any act of trademark use, alleged infringement, or other disputed act is likely to continue across January 1, 2027, it is recommended to re-evaluate the compliance and legal risks of such acts under the framework of the new law prior to its implementation.
II. Administrative Cases Concerning Trademark Authorization and Confirmation: Different "Temporal Anchors" for Four Types of Procedures
Administrative cases concerning trademark authorization and confirmation involve complex procedures, and the rules for the application of law corresponding to different stages vary significantly. Articles 2 to 4 of the Draft for Comments set different "temporal anchors" for four core procedures.
(1) Review on Refusal and Review on Disapproving Registration: When determining the applicable law, the decisive factor is when the Review Decision is made
Administrative lawsuits brought by a party dissatisfied with Decision on Review of Refusal of a trademark or Decision on Review of Disapproving of a trademark shall be governed by the Trademark Law in force at the time the review decision is made.
Practical Tips: This rule is particularly noteworthy for trademarks that are currently still pending in the examination, opposition, or review procedures. The specific date on which the review decision is made directly determines the applicable substantive law. If a review decision is made after January 1, 2027, the subsequent administrative litigation will be governed by the new law.
(2) Invalidation Cases: The Focus is on When the Trademark Was Approved for Registration, Rather Than When the Invalidation Decision Was Made
Administrative lawsuits brought by a party dissatisfied with a Decision on Review of Invalidation Declaration or Ruling on Invalidation Request shall be governed by the Trademark Law in force at the time the decision to approve the registration was made.
The Draft for Comments further clarifies three specific scenarios for "the time when the decision to approve the registration is made." Depending on the procedures the trademark has undergone, this time point may be:
(i) the time when the preliminary approval is announced (applicable where the trademark application is approved for registration upon the expiration of the preliminary approval announcement period without undergoing the review of refusal procedure);
(ii) the time when the decision on the review of refusal is made (applicable where the trademark application is approved for registration upon the expiration of the preliminary approval announcement period after undergoing the review of refusal procedure); or
(iii) the time when the decision on approving the registration or the decision on review of disapproving registration is made in the opposition or review of disapproving procedure (applicable where the trademark application is approved for registration after undergoing the procedures of opposition examination or review of disapproving registration).
This means that "old trademarks" subject to invalidation requests filed only after 2027 will not automatically be governed by the new law of 2027. To determine which version of the Trademark Law applies, it is necessary to trace back to the specific procedures and time nodes when the trademark was originally approved for registration. This is particularly important for multinational enterprises or time-honored brands with a long history of trademark registration in China.
(3) Review of Cancellation Cases: Anchored to "When the Cancellation Request is Filed" or "When the Cancellation Procedure is Initiated Ex Officio"
Administrative lawsuits filed by a party dissatisfied with a Decision on Review of Cancellation of a trademark shall be governed by the Trademark Law in force at the time when the requester applies for the cancellation of the disputed trademark or when the trademark administration department initiates the cancellation procedure ex officio.
III. Trademark Administrative Penalty Cases: Based on "When the Illegal Act Occurred" with an Exception for Lighter Penalties
Article 5 of the Draft for Comments stipulates that, administrative lawsuits filed by a party dissatisfied with an administrative penalty decision shall be governed by the Trademark Law in force at the time when the illegal act occurred. However, the Draft for Comments also sets forth an exception in favor of the parties: if the Trademark Law in force at the time the administrative penalty decision is made prescribes a lighter penalty or does not consider the act illegal, the Trademark Law in force at the time the decision is made shall apply. This provision fully embodies the spirit of the rule of law in protecting the legitimate rights and interests of administrative counterparts in administrative penalties.
This demonstrates that there is no uniform rule of "always looking at the application date" or "always looking at the decision date" across different types of trademark procedures. Instead, the applicable legal rules must be determined based on the specific procedures the trademark has undergone.
IV. Procedural Issues: Application of the Trademark Law in Force at the Time the Administrative Act is Made
Article 6 of the Draft for Comment stipulates that, in the administrative lawsuits filed against administrative acts such as review of refusal, invalidation, review of cancellation, and administrative penalties, the court, when examining procedural issues of the trademark administrative act, shall apply the Trademark Law in force at the time the administrative act is made.
This means that, within a single trademark administrative litigation case, the temporal application of the law must be determined separately for substantive issues (such as whether a mark constitutes similarity or possesses distinctiveness) and procedural issues (such as examination time limits and service procedures). In practice, this requires a more granular breakdown and analysis of the case facts.
For cases spanning the transition between the old and new laws, merely confirming "whether the case occurred in 2026 or 2027" is often insufficient. Instead, it is necessary to sort out specific dates, such as those of application, registration, filing of requests for invalidation or cancellation, and the issuance of administrative decisions.
V. Application of Law to Special Time Limits: How to Determine Whether an Opposition Application or Invalidation Request is Time-Barred
Article 7 of the Draft for Commen sets forth specific rules for the transition between the old and new laws regarding two highly controversial "preclusive periods": the trademark opposition period and the invalidation time limit:
Invalidation Time Limit: To examine whether an invalidation request is time-barred, the Trademark Law in force on the date of the announcement of approval of registration shall apply. In particular, for a disputed trademark whose approval of registration was announced less than one year before the entry into force of the Trademark Law as amended in 2001, the five-year time limit for requesting invalidation as stipulated in the 2001 Trademark Law shall still apply.
Opposition Period: Where the preliminary approval announcement date of a disputed trademark falls before the entry into force of the Trademark Law as revised in 2026, the three-month opposition period as stipulated in the Trademark Law as amended in 2019 shall apply.
VI. Practical Guidelines: How Should Enterprises Strategize and Respond During the Transition Period between the Old and New Laws?
For enterprises that already hold a trademark assets in China, or are currently handling Chinese trademark applications, oppositions, reviews, invalidation or cancellation cases, the period from late 2026 to early 2027 will be a critical legal transition period. It is recommended that enterprises focus on confirming the following time points:
- Focus on the filing date and the preliminary approval announcement date of a trademark application to determine in advance the version of the law applicable to the opposition period.
- Focus on the specific procedures and corresponding dates undergone for the approval of registration, to determine the applicable law for potential invalidation requests in the future;
- Focus on the estimated dates of the issuance of administrative decisions on reviews of refusal and reviews of disapproving registration, etc.;
- Focus on the filing dates of the requests for invalidation or cancellation;
- Focus on the time when the alleged infringement or other disputed acts occurred and continued, so as to guard against the potentially stricter civil liabilities that continuing infringing acts may face under the new law.
These critical timing points not only are an integral part of the facts of the case, but also directly determine which version of the Trademark Law the court applies.
Conclusion
Supreme People's Court's Provisions on Several Issues Concerning the Temporal Application of the Trademark Law of the People's Republic of China is currently still open for public comments, and its final text remains subject to change.
However, the current draft clearly indicates a fundamental trend: the transition between the old and new Trademark Laws will not adopt a simple one-size-fits-all approach, but will instead establish different temporal anchors based on the type of case.
For domestic and foreign enterprises that manage and operate trademark assets in China over long term, preparing for the implementation of the new Trademark Law in 2027 requires paying attention not only to "which rules have been revised by the new law" but also to the progress of their own cases, so as to precisely identify which set of rules on temporal application applies to a specific case, thereby formulating corresponding litigation strategies.
Note: This article is based on the Draft for Comments. Once the official provisions are promulgated, please refer to the final text released by the Supreme People's Court.
