New draft on China Trademark Law

In Insights, Uncategorized

9 November, 2011

The Chinese authorities recently published the third revised draft of the China Trademark Law for public opinion. The draft seems to offer trademark holders better possibilities for protection and some of the more significant changes are the following:

  • It will be possible to file multiclass applications
  • Signs of colour as well as signs of sound may be registered as trademarks
  • Only holders of prior rights and interested parties will be allowed to file an opposition against a trademark
  • Applications in bad faith – for trademarks identical or similar to an earlier trademark of prior use for identical  or similar goods/services, i.e. when the applicant know about the existence of the older mark through inter alia business relations, geographical reasons or the like – shall not be allowed registration
  • Statutory damages will be increased from RMB 500 000 to RMB 1 000 000
  • Increased penalties on repeated infringements more than twice within a five year period
  • Better protection and cross class protection for well known trademarks and trademarks with a strong distinctiveness
  • Evidence of inter alia the extent of use of the registered mark for the prior three years shall be provided when a holder of a registered trademark claims for compensation.
  • The four tier proceedings will be reduced to three when the opposition is to be initiated before the Trademark Review and Adjudication Board (TRAB) instead of the China Trademark Office (CTMO). Hence there will only be a possibility for one  administrative ruling and two judicial trials
  • Applications made electronically will be possible. Also will partial refusals be possible
  • The time limit for the appeal of a rejection will be 30 days
  • The recorded license of a trademark can be used to challenge a third party

The above, as well as the draft as a whole, clearly indicates that the Chinese authorities are aiming to embrace some of the internationally accepted practices. As mentioned above the draft also indicates better protection for trademark holders and a will to prosecute infringers. However the, from a western point of view, inconvenient sub class system will remain.

Peter Hermansson, Attorney at Law

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