TRADEMARK LAW OF CHINA

The two principal pieces of legislation forming the trademark system are the Trademark Law, and the Unfair Competition Law.

 

The system of trademark law in mainland China is administered by the China Trade Mark Office or CTMO (with an appeal function administered by the Trademark Review and Adjudication Board and the courts).

 

Both are divisions of the State Administration for Industry & Commerce (SAIC). Only registered trade and service marks are protected in the PRC: there is no common law protection for unregistered trademarks (except for "well-known" marks). Amendments to the PRC's Trademark Law on October 27, 2001 allows three-dimensional trademarks and colours to be registered as trade marks. 

 

 

UNREGISTERED TRADEMARK 

Although trademarks may be used in China without registration, unregistered marks do not enjoy the exclusive status granted to registered marks and their owners cannot prevent others from using them.

 

In addition, the owner of an unregistered mark has the heavy burden of proving prior use should another person subsequently apply for registration, and may even face infringement actions after the mark is registered by that individual.

 

 

REGISTRABLE MARKS

Any visible sign – including words, graphs, letters, numerals, three-dimensional symbols and colour combinations, and any combinations thereof – that is capable of distinguishing the goods or services of a natural person, legal person or organization from those of others may be registered as a trademark.

 

The sole requirements for registration are that the trademark must be distinctive and easily distinguished, and must not infringe another’s legitimate rights.

 

 

TERM OF PROTECTION

A registered trademark is valid for a period of ten years, calculated from the time on which the registration is approved.

 

The trademark can be renewed for an additional ten year term within six months before the expiration date of the mark's present term. 

 

PROCEDURE OF REGISTRATION

Before filing an trademark application, it is recommended (but not mandatory) to conduct a search to determine whether themark is registrable. 

 

If a trademark conforms to the relevant provisions of the Trademark Law, it will be examined preliminarily and advertised publicly through the Trademark Office.

 

Once the application has been filed, theTrademark Office’s Application Department will conduct a formal examination to check that the words, goods and all documents presented are correct.  

 

If a trademark conforms to the relevant provisions of the Trademark Law, it will be examined preliminarily and advertised publicly through the Trademark Office.

 

Once the application has been filed, theTrademark Office’s Application Department will conduct a formal examination to check that the words, goods and all documents presented are correct. This procedure takes about two or three months. 

 

If all documentation submitted is in order, theapplication will be transferred to the Examination Department for substantial examination. This procedure takes about five to eight months, and basically involves searching the database for prior similar trademarks and ensuring that the trademark requested accords with the provisions of the Trademark Law.Once the registrar of trademarks has accepted an application as registrable, the second half of the process commences: publication, opposition and registration.

 

In order to register a trademark, the following information and documents must be submitted:

• the applicant’s full name, business address, telephone number and nationality. If the applicant is a corporation, its name, type of corporation and country of incorporation should also be included;

 

• a representation of the mark to be registered and a description of the goods for which registration is sought, listed according to the International Classification;

 

• the name, address and telephone number of the authorized agent, the applicant’s address in China (if any) and the specific authority granted to the agent;

 

• power of attorney, which must be submitted at the time of filing the application and which authorizes the Chinese agent to perform all duties and services that are checked. One power of attorney must be submitted per trademark; and• a certified priority document, if priority is claimed.