Know the Best Possible Ways to Avoid Trademark Violation Lawsuit in China

Trademark violations in China are often result in lengthy, expensive and resource-intensive lawsuit. Accurate China trademark search is the most important starting point of your business. Before you start using the trademark, it is vital to conduct trademark availability assessment and clearance. Only after doing this, a China trademark attorney can advise you whether the mark is legally safe to use or not. In this blog, we are trying to give you a complete picture on how you can easily avoid damaging and costly trademark violation lawsuit in China.

 

Know What Counts as Trademark Infringement in China

In the opinion of China trademark lawyers, foreign businesses need to know what exactly trademark infringement means in China. Only after knowing the proper nature of trademark infringement, one can take right actions. Trademark infringement is when a business uses the name, logo, or domain name of another business without authorization, or uses one that is similar enough to potentially confuse consumers. Trademark owners can take legal action if they believe their marks are being infringed. If infringement of a trademark is proven, a court order can prevent a defendant from using the mark, and the owner may be awarded monetary relief. Unlike the United States and other European countries, in China there is no prior-use or intent-to-use requirement needed before registering a trademark nor are common law rights recognized. China recognizes a “first to file” system, which generally means that the trademark right belongs to the first person who properly registers the mark in China. In other words, any party, whether it intends to use the mark in the stream of commerce, may register a trademark in China. Quick registration of trademark in China offers you strategic advantage.

 

Perform a Flawless China Trademark Search

When considering a new trademark, perform online China trademark search to determine whether others use that mark, registered that mark, or applied for a registration. Before you settle on a name, logo, or domain name, make sure it is not already trademarked. Check for the exact name you want to use, as well as similar names.

 

Always Keep China Trademark Attorneys by your Side-

Instead of doing anything by yourself, it is always safe to seek advice from the expert China trademark lawyers. Specialist trademark attorneys have better resources and efficiency to perform a flawless China trademark search. It will also likely cost you less to pay a professional to do a search than it is to defend an infringement that may result in expensive legal battle. If you decide to adopt a proposed trademark, but then obtain a cease and desist demand or threat of lawsuit, work with litigation counsel to understand litigation and potential damages risk. There is no algorithm to determine infringement. It is subjective. The subtleties in this subjective test are not always intuitive and going it alone may only add to the likelihood of confusion.

Trademark has a value not only to the owner due to its distinctiveness but also to customers who associate this trademark to a specific product or service. That’s the reason before you invest in a new brand, have a trademark attorney perform a trademark availability assessment or trademark clearance analysis for you.

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Strategic Advantages of Registering Trademark in China

Often foreign companies pay less attention to registering their trademark in China. It is important to remember that China does not provide protection for unregistered trademark under the common law. The value of China trademark registration is immense and the foreign firms having business interest over here simply cannot overlook the need for registering trademark in China.

Protecting a company’s trademark is a strategic move in the long term and should be carefully considered. The trademark search is based on the public trademark database of CTMO, any search activities that processed in China are all based on that database. This database is comprised of all active and many inactive marks that were either applied-for or registered pursuant to the current Trademarks Act or former trade-mark legislation of China. The database includes additional words and designs which are not by definition trademarks, but that is protected by the Trademarks Act or other related legislation.

Protect Trademark Infringement with the Chinese Character Trademark

Unlike the US, China follows the ‘first to file’ system rather than the ‘first to use’. US companies work under the impression that by simply registering their trademark in the United States will be automatically recognized in China as well. Your takedown request will not be granted if you only registered it in the US or other foreign jurisdiction. You need to have a Chinese character trademark of your company while doing business in China.

Registered trademark helps to enter into a licensing agreement

Trademark has a value not only to the owner due to its distinctiveness but also to customers who associate this trademark to a specific product or service. Moreover, if a foreign company wants to enter into a licensing agreement with a Chinese distributor, the foreign firm has to register trademark in China first. Most of the renowned Chinese distributors will only form business relationship with the overseas enterprises whose trademark is registered in China.

Trademark registration drives business value

Trademarks provide value beyond your core business. Trademarks can appreciate in value over time. The more your business reputation grows, the more valuable your brand will be. A trademarked name marks all of your products and services as yours and no one else’s and can also protect you from counterfeit products. Trademarks in China are valid for 10 years from the date of registration. Requests to renew must be filed within 6 months prior dates of expiration.

In China, the protection of the exclusive right to use a trademark is based on registration. Registration can be obtained either by filing an application directly at the CTMO (Domestic application), or by filing an application at the World Intellectual Property Organisation (WIPO) on the basis of a trademark registered or applied in another country than China.

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