China Trademark Registration
Protect your company’s image and product/service
30 days to set up ™, 18 months minimum for ®
No annual fees to maintain the trademark after registration
We have Registered over 25 000 Trademarks over the last 10 years
Required documents : Copy of Business License + filled Trademark Application form

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Trade mark registration in China

What is a trademark and why is it particularly essential when doing business in China ?

A trademark is a distinctive brand or mark used by an individual to indentify that the product or service originate from one and only source. This mark 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 and therefore have certain expectations towards the company. All kinds of products or services are subject to trademark infringement especially in China where counterfeit product are very common (China does not recognize unregistered trademark rights). Protecting a company’s trademark is a strategic move in the long term and should be carefully considered.

Registration of a trademark in China

Why you need to register a Trademark in China?

Every few months, my law firm gets contacted by a Western company that wants us to pursue a bad faith trademark case against a company in China. Typically, the Western company wants to pursue litigation against a Chinese company for having trademarked what the Western company perceives to be their tradename or trademark. These cases usually range from very difficult to just plain impossible.

Here are some examples as to why.

Someone Registers “Your” Well-Known Mark in China.
China considers a trademark to constitute a well-known mark if it is well known in China. Coca Cola and maybe now Starbucks would qualify under this standard. AT&T might not. Your trademark almost certainly does not. If you really have a well-known mark and someone in China registers it, you have a bad faith filing. I cannot even imagine what company would think it better to sit back and wait for someone to register “its” trademark in China and then sue that registrant for bad faith filing, as opposed to simply going ahead and registering that trademark in China.

Your Agent Registers “Your” Trademark in China.
China’s trademark law states that when “any agent or representative registers, in its own name, the trademark of a person or entity for whom it acts as agent or representative, without an authorization there from, and the latter raises an opposition, the trademark shall be rescinded and prohibited from use.”

China’s Trademark Office states that “agent or representative” should be very broadly construed and that the authorization must be unambiguous and in writing. This all sounds good and the problem here is not the law itself. The problem is proving that the person who registered “your” trademark in China was your agent.

The most likely person to register “your” trademark in China is someone on the inside. The person best positioned to know the value of your trademark is going to be someone at your China OEM manufacturer, someone at your joint venture partner, or one of your own employees. Under the law, none of these people should be allowed to register your trademark on their own behalf and it is very likely none of them did. This law has now been around long enough so that if your OEM manufacturer, joint venture partner or employee has any brains at all, they will not register your mark in their own name; they will instead have their cousin in Xi’an or in register it, leaving you with the near impossible task of showing the linkage. It will always be cheaper, easier and more certain to register your trademark than to bank on being able to prove that the person who now legally owns “your” trademark in China secured it illegally.

Someone Preemptively Registers “Your” Trademark in China in Bad Faith.
China’s Trademark Law also provides that a trademark application shall not be allowed if it is being done to “preemptively register by unfair means a trademark that has already been used by another person where such mark has achieved some degree of influence.” China’s Trademark Office states this provision applies to trademarks that have not yet been registered in China and it defines “some degree of influence” to mean that the mark has been used on a product in China and Chinese consumers have come to identify that mark with a particular product in China. This means this provision will probably never apply to foreign marks used outside China. China’s Trademark Office defines “unfair means” as having a motive for filing that violates the principle of good faith and fair dealing, as defined in China’s civil code.

Factors for determining bad faith in this situation are:

a. Whether the parties had prior business dealings with each other.

b. Whether the parties have had past disputes.

c. Whether the registration was for an unfair motive, such as to force the other party to enter into a business relationship, to force the other party to assign over its mark or to force the other party to pay for having allegedly infringed on the mark.

Again, the law sounds good, but the proof problems are certain to be substantial. And again, it will always be cheaper, faster and more certain just to register your mark in China.

In every single instance when someone has sought to retain my law firm to pursue a bad faith trademark claim in China, we have counseled them against it as the costs are too high as compared to the likelihood of success. And in every single instance when someone has sought to retain my law firm to pursue a bad faith trademark claim in China, about all I can think about while I am telling them of how difficult their case will be is “why the heck didn’t they just register their trademark in the first place?”

As we have said many times, the only real solution to protecting your mark in China is to register it in China early and to, at minimum, register every mark that you will be using in China, in both any foreign language and Chinese language you will use. If you wait to file, you are simply inviting a competing registration that will cause you major problems in China. China is a first to file jurisdiction and most be approached that way. If you wait to file until after your brand is already established in China, you are just inviting trouble. There is a good chance someone else will have registered your mark and it is almost certain you will not be able to do anything about it.

Trademark Registration in China

The Rules of Registration and First-to-File

It was until the March 1 of year1983-almost two years after China’s

accession to the World Intellectual Property Organization (“WIPO”) in

1980-that the first Trademark Law of the People’s Republic of China came into force. In February of the year of 1993 the Trademark Law was revised, and after China’s entry into WTO it was revised again on October 27, 2001 in order to meet the requirements of the Trade-related Aspects of Intellectual Property

Rights (“TRIPS”).

In addition to improving its national trademark legislation, China had

also taken steps to bring its trademark protection laws in line with the

international standards and practice. Before being a member of WTO, China acceded to the Paris Convention for the Protection of Industrial Property in 1984 and became its member in 1985. China became a party to the Madrid Agreement Concerning the International Registration of Marks in 1989 and the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks in 1995. . Moreover, China became a party to the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks in 1994 .

The above-mentioned national laws and international laws established

and ensured the most important rules related to trademark protection: the registration rule and the first-to-file rule.

The registration rule mainly means that (1) only the registered

trademark is protected in China and (2) one registration is valid for ten years starting from the Date of Registration and can be renewed indefinitely, each time lasting for ten years.

According to the First-to-File doctrine, the first applicant to file an

application for registration of a trademark will pre-empt all later applicants. This further implies that the prior use of an unregistered trademark is generally irrelevant, unless such unregistered trademark is a so-called “well-known” trademark. Moreover, this means the one who registers a trademark legally has the right to forbid others from using of the same or similar unregistered trademark in China.

Filing an Application

There are two ways of submitting the application for a foreign applicant.

One is the foreign applicant files an international application subject to the Madrid Protocol and in such international application designates China as one of the protection domain; the other is the foreign applicant directly files the application with CMTO. However, regardless of which way elected, such foreign applicant shall designate a qualified trademark agency to handle the application in China. Considering that an international application is morecomplicated than a direct application with CMTO, and the correspondence under an international application is the big issue that may cause problems, therefore the simplest way to register a trademark in China is to file a direct application with CMTO. In this way, what a foreign applicant

What are the benefits for registering a Trademark?

  • The benefits from registering a Trademark in China include:
  • 4. Registration may be filed to prevent importation of infringing foreign goods.
  • 3. Registration can be used as a basis for obtaining registration in other countries.
  • 2. First-to-file, not first-to-use, will be more likely to claim ownership of trademark.
  • 1. Nationwide recognition of the trademark owner’s claim.

What documents are needed for a trademark registration?

  • The benefits from registering a Trademark in China include:
  • 4. Registration may be filed to prevent importation of infringing foreign goods.
  • 3. Registration can be used as a basis for obtaining registration in other countries.
  • 2. First-to-file, not first-to-use, will be more likely to claim ownership of trademark.
  • 1. Nationwide recognition of the trademark owner’s claim.

Failure to register your trademark in China, could cause you to lose the right to your “Own” name in China.

  • A number of people in China make their living by usurping foreign trademarks and then selling a license to that trademark to the original license holder (the foreign company). China, like much of the world is a “first to file” country, which means whoever files a trademark or trade name first in a particular category almost always ends up owning that trademark.

You Must Register Your Trademark in China to Protect it in China.

  • Though the media have published a number of stories deriding China’s intellectual property protection, those articles nearly always fail to mention that in most instances involving trademarks, the fault lies with the foreign company, not with Chinese enforcement. A foreign company that fails to register its trademarks in China has no real right to complain about any “infringement” there. To expect protection, foreign companies must register their trademarks in China and the prudent company does this before going in.

When Doing Business in China, you should consider registering your trademark.

  • The fact that you are manufacturing your product in China just for export does not in any way minimize the need for you to protect your trademark. Once someone registers “your” trademark in China, they have the power to stop your goods at the border and prevent them from leaving China.

Trademarks that can be registered in China.

  • China’s trademark requirements are actually quite similar to those in most other countries. The trademark must not conflict with an existing Chinese trademark and it must be distinctive. China allows for registration of all marks for goods, services, collective marks and certification marks.

China’s Trademark Office maintains a centralized database of all registered and applied-for trademarks.

  • Trademark applications that pass a preliminary screening are published by the Trademark Office and subject to a three month period for objection. If there are no objections within this three month period, or if the Chinese Trademark Office rejects the objections as frivolous, the trademark is registered. If the Chinese Trademark Office supports an objection, it will deny the application. Denied applications may be appealed to the State Administration of Industry and Commerce Trademark Review & Approval Board and then to the People’s Court. Objections to trademarks are relatively rare.

Protect your name with a Chinese Trademark.

  • A Chinese trademark gives foreign companies a surprising amount of protection in China. If a foreign company learns that its trademark is being infringed in China, it has a number of actions available to it.

Pursuing A Trademark Infringer In China.

  • The foreign trademark owner should usually file a lawsuit against the infringer, seeking damages and an injunction stopping the infringer from continuing to sell the infringing goods. The Chinese courts in the more commercialized regions are actually quite willing to enforce China’s trademark laws, even for foreign companies. Trademark infringement is a crime in China. For serious cases of infringement, a complaint to the office of the public prosecutor can often result in a criminal prosecution against the infringer. The Chinese police will close the offending operation and seize the counterfeit goods. The courts are authorized to impose both fines and imprisonment. Finally, if the counterfeit goods are destined for export, a notice to the Chinese customs authorities will prevent export of the counterfeit goods.

.

One modification this is certainly crucial that before 2002, three-dimensional signs or combinations of colors could never be signed up trademarks in China, now this group is easily available. Of course that, some terms which are unique signs, like nations brands, worldwide businesses brands and signs, including the Red Cross, is almost certainly not signed up as trademarks.
This concept states that where two or even more applicants submit an application for the enrollment of identical or trademarks being comparable equivalent or comparable products, the Trademark Office will accept the trademark application that will be very first filed. Where programs tend to be submitted from the day this is certainly exact same the initial endorsement will probably be fond of the trademark that has been the first utilized, while the programs associated with the other individuals will probably be refused and their particular trademarks shall never be posted.

Where any celebration is authorized to utilize an authorized trademark of some other individual, title associated with licensee additionally the beginning for the items needs to be suggested in the goods that bear the trademark this is certainly subscribed.

2.What forms of indications is subscribed trademarks?

Any trademark registrant might, by concluding a trademark permit agreement, approve various other individuals to make use of their subscribed trademark. The licensor shall supervise the grade of the products according of that your licensee makes use of their subscribed trademark, and also the licensee shall guarantee the caliber of items according of that the trademark this is certainly subscribed utilized.

5. Trademark Licensing

The functions which are following constitute a violation:

The reason why Register Trademark in China?

A software for restoration associated with the subscription will probably be made within half a year prior to the said conclusion in the event that registrant promises to continue using associated with the authorized trademark beyond the conclusion of this amount of substance. Where no application consequently is recorded inside the said duration, a grace amount of half a year might be permitted. The elegance duration, the subscribed trademark will be terminated if no application happens to be recorded during the termination.

A trademark identical with an authorized trademark, while the instance is really so really serious as to represent a criminal activity, he will be prosecuted, in accordance with legislation, for their unlawful debts along with their settlement when it comes to problems experienced by the infringe if any party utilizes, minus the consent through the trademark registrant.

China’s Trademark Legislation
(3) To counterfeit, or even make, without consent, representations of an authorized trademark of some other individual, or even to offer such representations of a trademark that is registered were counterfeited, or made without consent

Whenever an infringing work is constituted, the AIC shall purchase the infringer to straight away end the work this is certainly infringing confiscate and destroy the infringed products and resources especially utilized for the make associated with the infringing items as well as for counterfeiting the representations associated with authorized trademark, and enforce a superb. Where any celebration this is certainly interested dissatisfied aided by the choice regarding the matter, it or he might register case within the individuals Court in accordance with the Administrative Procedure Law for the individuals Republic of China.
(2) to offer products he understands bear a counterfeited trademark that is signed up

Evidently, where enrollment of a trademark which was sent applications for is identical with or like the trademark of some other individual that has actually, in value of the identical or products which are comparable already been signed up or, after assessment, preliminarily authorized, the Trademark Office shall decline the applying and shall perhaps not publish the said trademark.
(1) to make use of a trademark this is certainly identical with or just like a trademark this is certainly signed up value of this identical or comparable products with no agreement through the trademark registrant

The time of credibility of a trademark this is certainly signed up be 10 years, counted through the time of endorsement of this subscription.

(4) to restore, minus the permission of this trademark registrant, its or their trademark this is certainly subscribed and again the goods bearing the changed trademark or

Any indication this is certainly artistic if you can use it to differentiate items or solution of just one normal individual, appropriate entity or just about any other company from compared to other individuals, including any term, design, letters of an alphabet, numerals, three-dimensional expression, combinations of colors, and their particular combo, could be recorded for enrollment.

(5) resulting in, various other respects, prejudice to your unique right of some other individual to utilize a trademark this is certainly subscribed
Proprietors of subscribed trademarks are able to avoid other individuals (in other words., their particular rivals, lovers in China, we had customers that realized their particular trademark ended up being signed up by their particular provider in China along with other 3rd events) from employing their trademark this is certainly signed up without. Your signed up trademark may also effectively avoid other individuals from (A)- obtaining trademark liberties in your trademark, and/or (b)- saying you are infringing their particular trademark legal rights. Trademark Infringement activities is pricey. Few businesses possess power this is certainly monetary overcome the entire or limited loss in their particular straight to make use of their particular company title or item title. Consequently, trademarks tend to be vital company possessions. Coca-Cola is usually thought to be the essential important and trademark this is certainly admired.

8. Criminal Penalty

1. How to safeguard your trademarks and solution scars in China?

4. The expression for a trademark this is certainly subscribed trademark restoration

The time scale of legitimacy of each and every revival of enrollment will probably be 10 years.
Should your trademark right is infringed, initially, it is possible to fix the dispute through assessment; you may possibly institute appropriate procedures into the individuals Court or request the administrative expert for business and trade for activities if you’re hesitant to eliminate the problem through assessment or perhaps the assessment fails, 2nd.

Trademarks shield your organization title, item brands, Domain brands, logos and slogans. The choice to Trademark is probably perhaps one of the most company that is essential you are going to make. We might be very happy to work with you aided by the trademark enrollment procedure that is complex. It is that which we do most readily useful.
7. If your trademark right is infringed, exactly what can you are doing?

6. Trademark Infringements

In China you have to register the Chinese Trademark Office to your trademark so that you can protect your unique legal rights to that particular trademark in China.

3. Application First Principle

The trademark permit agreement will be posted into the Trademark Office for record.
The Chinese trademark legislation system varies through the U.S. trademark legislation system this is certainly national. The Chinese Trademark Law provides: “any person who is all-natural appropriate entity or any other organization planning to acquire the unique directly to make use of a trademark, including solution level, shall lodge a credit card applicatoin when it comes to enrollment associated with trademark using the Trademark Office”.
The Administration of Industry and Commerce (AIC) plays a part this is certainly vitally important China to aid company organizations and people in fixing trademark conflicts and violation statements. AIC runs on national, provincial, county, and municipal amounts, and it is the federal government this is certainly key this is certainly responsible for corporations enrollment, reasonable competitors, trademark management, marketplace guidance, and workouts other essential features. The AIC has got the expert this is certainly administrative investigate and deal with any functions of violation of this unique legal rights to use a registered trademark relating to legislation.

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