China has emerged as one of the world’s largest economies, making it a crucial market for businesses globally. Protecting intellectual property, especially trademarks, is a top priority for businesses operating in or entering the Chinese market. This guide offers an in-depth overview of the trademark system in China, covering legal basics, filing routes, types, costs, application processes, opposition, invalidation, and cancellation.
Legal Basics of Trademarks in China
The trademark system in China operates under a comprehensive legal framework designed to align with international standards while addressing local economic and cultural needs. Here are the key elements:
Domestic Law:
- Trademark Law of the People’s Republic of China: First enacted in 1982, this law governs the registration, use, protection, and management of trademarks in China. It has been amended several times to incorporate changes in economic practices and international commitments.
- Regulations for the Implementation of the Trademark Law: These regulations provide detailed procedural guidance on various trademark-related matters, including application, examination, opposition, and enforcement.
- Anti-Unfair Competition Law: This law supplements trademark protection by addressing acts of unfair competition, such as unauthorized use of another’s well-known but not registered trademarks, such as company name, individual name, domain name, product name, package, or other symbols.
International Law:
- Paris Convention for the Protection of Industrial Property: As a signatory, China grants foreign applicants the same protection as domestic applicants.
- Madrid Agreement and Protocol: International applicants can designate China for trademark protection through a streamlined process.
- TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights): China’s compliance with TRIPS ensures a minimum standard of IP protection and enforcement as required by the World Trade Organization (WTO).
Protection Principles:
- First-to-File Principle: Trademark rights in China are granted to the first applicant to file a trademark, regardless of prior use.
- Good Faith Principle: Applicants are expected to file trademarks in good faith, without malicious intent to infringe upon others’ rights.
Types of Trademarks in China
The Chinese trademark system, governed by the China National Intellectual Property Administration (CNIPA), recognizes the following types of trademarks:
- Word Marks: Includes letters, numbers, and words.
- Figurative Marks: Logos, symbols, or graphical elements.
- Combination Marks: A mix of words and graphics.
- Colour Combinations: Specific arrangements of colors that distinguish a brand.
- Sound Marks: Unique sounds that are associated with a brand.
- Three-Dimensional (3D) Marks: Distinctive shapes or packaging.
Filing Routes for Trademarks in China
Applicants have two main routes for filing trademark applications in China:
- Domestic Filing: Directly file, or a subsequent application within 6 months from the first filing/ international exhibition date in another contracting state of the Paris Convention
- Territory Fextension via the Madrid System: If the applicant’s country or region is a member of the Madrid Protocol, they can request for territorial extension to China in their international application. This method is more efficient for seeking protection in multiple (especially more than 3) countries, including China.
Costs of Trademark Registration in China
Understanding the costs involved in trademark registration helps businesses budget effectively:
- Filing Fees: CNIPA charges RMB 300 per class for up to 10 items. Additional items cost RMB 30 each. Please read more about Chinese Trademark Application Costs.
- Professional Fees: Using a trademark attorney or agent may involve additional costs, depending on the service provider.
- Renewal Fees (if applicable): Trademark registrations in China are valid for 10 years and can be renewed every 10 years for a fee of RMB 1,000 per class.
Trademark Application Process
Step 1: Conduct a Trademark Search
Before filing, it is essential to check the CNIPA database to ensure the trademark is unique and does not infringe on existing trademarks.
Step 2: Prepare the Required Documents
- Applicant Information: Business license for companies or a passport for individuals.
- Trademark Design: High-quality representation of the BW mark (colour image is required if the colour is indicated).
- Power of Attorney: If filing through an agent.
- Priority Claim Documents: If applicable, proof of earlier applications or exhibition.
Step 3: Submit the Application
- Applications can be filed directly with CNIPA or via the Madrid System for international registrations.
- Pay the official fees and retain payment receipts.
Step 4: Examination by CNIPA
- Formal Examination: Ensures the application meets all filing requirements.
- Substantive Examination: Evaluates the trademark’s distinctiveness and checks for conflicts with existing marks.
Step 5: Publication for Opposition
If approved, the trademark is published in the Trademark Gazette for a three-month opposition period, during which any third parties can raise objections.
Common Reasons for Trademark Refusal
Trademark applications in China may be refused for several reasons, including:
Relative Reasons
- Lack of Distinctiveness: The mark is too generic or descriptive and fails to distinguish the goods or services.
- Similarity to Existing Marks: The proposed mark is deemed confusingly similar to an existing registered/ pending trademark.
Absolute grounds
- Contravention of Public Policy: Marks that violate social ethics, contain discriminatory content, or are harmful to the public interest.
- Misleading Content: Trademarks that mislead the public about the quality, origin, or nature of goods or services.
- Prohibited Signs: Use of national flags, emblems, or symbols prohibited under Chinese law.
- Bad Faith Filing: Applications submitted with malicious intent, such as copying well-known foreign trademarks.
Applicants facing refusal can appeal the decision to the CNIPA, and even take a lawsuit against CNIPA before the courts if they are not satisfied with the appeal.
Trademark Opposition in China
Grounds for Opposition
- Similarity to existing trademarks.
- infringing earlier rights (e.g., design, copyright)
- Lack of distinctiveness.
- Violation of public policy or moral standards.
Responding to Opposition
The applicant must respond within 30 days by submitting evidence and counterarguments to CNIPA.
Invalidation of Trademarks
Third parties or CNIPA can initiate invalidation proceedings under similar grounds as opposition, but invalidation is only for registered trademarks after publication.
Cancellation of Trademarks
Anyone can request CNIPA to cancel a trademark only on the reason that the trademark has not been used in China for three consecutive years.
Further information
See more about Overview of Chinese Patent System
See more about Comprehensive Guide to Copyright Registration and Protection in China
For expert guidance and assistance in navigating the Chinese trademark system, reach out to our team today to safeguard your brand.
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