China Trademark Registration | Frequently Asked Questions- Part 2

Most of the cases it is noticed that foreign businesses pay less interest to registering their trademark in China. But it is very crucial not to forget that China does not provide protection for unregistered trademark under common law in recent days. The price of China trademark registration is colossal and the foreign firms having enterprise interest over right here simply can’t forget about the need for registering trademark in China.

After the previous article on tricky Q-A on China Trademark Registration, we are going to discuss some of the frequently asked questions on the mentioned topic over here.

Frequently Asked Questions on China Trademark Registration:

Is there a time frame for the trademark registration approval? 

The average time frame for the registration approval is 15 months, if no objections or oppositions arise.

If someone registers a trademark in China, will he/she gets protection in other territories?

No. A registered mark is protected only in Mainland China.

Is it necessary to sign a Power of Attorney?

Yes.

Are there any benefits from a pre-filing use of the trademark?

The benefits from a pre-filing use are minimal since rights are obtained via registration. However, the applicant can use this to demonstrate the mark’s distinctiveness and overcome opposition on the ground of non-distinctiveness.

Can an unused trademark registration harms latter?

Yes. A registered mark can be attacked on the ground of non-use.

What are the types of trademark that can be registered in China?

>> Words

>> Names

>> Devices

>> Certain 3-dimensional shapes

>> Slogans

>> Colours

>> Sounds

>> Get-up or trade dress

>> Combination of all of the above elements

>> Collective marks

>> Service marks

>> Certification marks

>> Well-known marks

What are the phases of application after a trademark has been filed in China?

There phases are there: 

Examination, Publication, Registration

What type of trademark is not registrable?

The following marks are prohibited from registration:

>> Marks that are against the moral standards or public order of China

>> Generic words or terms

>> Symbol, flag, or name of a state, nation, region, or an international organization

>> Marks that lack distinctive qualities

>> Marks that are used primarily to indicate a geographical location name

>> Marks that may mislead consumers

Does China use the “Nice Classification” system?

Yes. China uses the system of Nice Classification.

Does the Community Trademark apply for China?

No. Community Trademark does not apply for China.

Is it possible to cancel a registration?

Yes. The following are grounds for cancellation:

>> Descriptive mark

>> Misleading and/or deceptive mark

>> Lack of distinctiveness

>> Generic mark

>> Mark is a geographical indication

>> Functional mark

>> Violation of public policy or principles of morality

>> Unauthorized marks by competent authorities pursuant to Article 6ter of the Paris Convention

>> Inclusion of a badge or emblem of particular public interest

>> Using of the mark in a misleading manner

>> Prohibited marks in this jurisdiction

>> Application was made in bad faith

>> Registrant’s breach of a technical provision of the law

>> Fraudulent registration

>> Use Requirements under Section V.G. are not met

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What is Bad-Faith Trademark Registration in China

National People’s Congress 2018 that took place in the month of March, has made Chinese Trademark Office as a part of the State Intellectual Property Office (SIPO). 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.

Trademark Applications in Numbers-

As China is quickly emerging one of the top-destinations for lucrative business prospects, companies from all over the globe want to start a business over here and apply for China trademark registration.

  • According to the source, 3,586,000 applications for trademark registration were filed in China in the first six months of this year
  • As of June 30, 2018, 31.5 million total trademark applications had been filed
  • 19.4 million trademarks had been registered
  • 16.8 million trademarks remained as valid registrations
  • 2018 will have increased by nearly 25% from the previous year

The Problem of Bad-Faith Registrations in China-

As for trademarks, the volume of applications has consistently grown in the past 15 years. One of the consequences of this growth is the proliferation of so-called ‘pre-emptive trademark applications’, filed in bad faith. Bad faith refers to the filing of a trademark belonging to the owner of a renowned overseas company with the intention of making a profit out of it. This process commonly involves a Chinese company first registering the trademark of a foreign firm in China with the express intention of selling it back to the overseas company at a high price. Foreign companies are facing the growing problem of bad faith trademark registration in China. In practice, so called “bad-faith registration” is greatly motivated by the profits yielded from the difference between the inflated price charged by the trademark holder and the cost of registering this trademark.

The notable thing is that, in China, it completely legal for the owner of a registered trademark to sell it. In fact, in China there is an officially approved internet-based platform for selling trademarks. There is no security of your trademark in China if it is not registered. However, the good news is, Chinese Trademark office made few significant changes in order to stop the harmful practice of bad faith and offer greater protection to the foreign brands.

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