China’s trademark regime follows a first-to-file system and so does not recognize international trademarks if they are not registered in the mainland. Once a trademark right is granted in China, the trademark owner enjoys the exclusive right to use the sign in relation to the goods or services covered by the trademark, and may prohibit others from using it without prior consent. Like many other countries, China uses NICE classification.
However, a key difference in Chinese trademark practice is subclasses. Chinese Classification Table for Similar Goods and Services (Classification Table) is the main criteria that examiners in China adopt in determining whether goods/services are similar. The Classification Table is mainly based on NICE Classification, but also includes nearly 2,000 items of goods and services that are commonly used in China but not included in the NICE Classification.
Foreign applicants without residency or place of business in China are required to submit trademark applications through a local Chinese trademark agent who will deal directly with the CTMO. The China Trademark Office, or CTMO has issued requirements that must be met in order to approve your trademark application in China. Before you begin the process to register your mark, be sure that you have met the following requirements to obtain a trademark registration in China:
- The mark must be available to use.
- The mark must be easily differentiated from other registered trademarks.
- The mark cannot be descriptive of the goods or services provided.
- The mark should have a positive connotation.
Cancellation on the basis of non-use–
The authority of mainland China stipulated that a registered trademark, including a trademark for goods, a service mark, a collective mark and a certification mark, refers to a trademark that has been approved and registered by the Trademark Office. Chinese trademark law states that if in the three years following the mark’s registration the mark has not been used for a continuous period of at least three years without due cause, it might be subject to cancellation proceedings.
It can take years of painstaking effort for a trademark owner to develop a strong brand. A trademark owner, however, must be vigilant in protecting the brand or the goodwill associated with the brand can be lost.
Two important requirements after your trademark is registered in China–
First: Keep a close eye on the possible infringement of your trademark. Closely monitor third party applications for similar trademarks.
Second: Separately register the trademark with China customs. Unless your trademark is registered in China customs, they will not seize allegedly counterfeit products under your trademark.
Nevertheless, Chinese trademark law provides foreign companies in particular with two essential legal remedies to take action against an unlawful trademark application in China. Registered trademarks shall be so distinctive as to be distinguishable and shall not conflict with any prior right acquired by another person. trademarks mean signs which are controlled by organisations capable of supervising certain goods or services and used by entities or individual persons outside the organization for their goods or services to certify the origin, material, mode of manufacture, quality or other characteristics of the goods or services.