The Chinese trademark law system is different from the U.S. federal trademark law system. In the view of the China business lawyers, the Chinese Trademark Law provides: “Any natural person, legal entity or other organization intending to acquire the exclusive right to use a trademark, including service mark, shall file an application for the registration of the trademark with the Trademark Office”.
China lawyers and legal experts say the onus is on companies looking to do business in China to understand how China’s trademark law works, as it differs greatly from that of the United States.
China uses a “first to file” system when it comes to trademarks, meaning that the party who files for registration first gets the trademark, while the United States uses a “first to use” system, meaning a party filing for a trademark has to show that it’s either used the mark in business or intends to use the mark in the future for business.
In a recent decision given by a Chinese court have made it easier for the famous person to protect their name in China.
Late last year, basketball great Michael Jordan won a trademark case in China’s Supreme Court against a Chinese sports brand that sold “乔丹” shoes the Chinese transliteration of the name “Jordan.” The Court ruled that the brand, Qiaodan, was deceptively using his likeness, and ordered their trademark be returned to Jordan.
This year, Donald Trump received initial approval of 38 trademarks that the Trump Organization applied for in China. According to the trademark office and reports, from now Trump’s business can use the Trump name on restaurants, real estate services, financial products, and a bevy of other interests.
China business lawyers said trademark squatting was a problem in China, aided by agencies who register hundreds of trademarks in the hope of turning a profit. But the recent decision of the court, will help famous personalities to protect their full names as trademarks. According to the Article 32 of the Trademark Law “trademark application shall neither infringe upon another party’s prior existing rights nor be an improper means to register a trademark that is already in use by another party and enjoys substantial influence.” The law is quite promising and indicates that China will treat domestic and foreign parties in the same way for the trademark registration.