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Trademark

All information contained herein is provided by courtesy of Tiance and all the information we provide in this page are based upon our practice experience and current situation of the Trademark application in the P.R. China. It is for informational purposes only. It should not and may not be construed as legal advice. Any reader of this information should not act upon it without seeking professional counsel. However, it is hoped that the information provided here will be helpful to this site's visitors in familiarizing them with issues that may affect them.

Brief Introduction

The Trademark Law of the People's Republic of China stipulates that goods mark, service mark, collective mark and certification mark can be registered in China and obtain trademark exclusive rights. Any sign, capable of distinguishing the goods or services of one natural person,legal person or any other organization from those of other persons, including words, devices, letters, numerals, three-dimensional signs, combination of colours, sounds, etc., as well as the combination of such signs, shall be eligible for application for registration asa trademark. Smell is not registrable yet in China.

The Chinese Trademark Office adopts International Classification. One trademark application is not limited for one trademark in one class. Multi-class application is permitted in China.
The qualification of trademark registration applicant: natural person, legal entity or other type of organization.
The trademark registration term is 10 years, starting from the date of registration.

Trademark Registration

China adopts trademark examination system, a trademark should pass the procedures of formality examination and substantive examination.

1. Formality Examination

Normally speaking, formality examination will be performed within 3 months from the date of application, and there may have three different results:
First, for those applications with complete documents and the application are accords with Trademark Law, the CTMO will issue the Official Filing Receipt after formality examination;

Second, for those applications with incomplete documents and the application do not accord with Trademark Law, the CTMO will issues the Not-accepting Notice, and the applying date would not be reserved
Third, for those applications that the documents were basically complete and according with trademark Law, but they were not hundred-percent eligible, the CTMO will issue a Notice of Correction, requesting the applicant to make the corrections within 30 days from the date of receiving the notice. Application will be deemed withdrawn if no response is made within the said 30 days.

2. Substantive Examination

A trademark application enters the substantive examination procedure after passing through the formality examination. Upon substantive examination, the Trademark Office will initially approve the application if it meets the requirements of the Trademark Law, and publish the application at the Trademark Gazette.

The prior right owner or any interested party may, within three months from the date of publication, files an opposition against an accepted and published application for registration of a trademark, if he finds that the application stands in violation of the provisions of Article 13, paragraph two or three, Article 15, Article 16, paragraph one, Article 30, Article 31 or Article 32 of Trademark Law, or any person finds that the application stands in violation with the provisions of Article 10, Article 11, or Article 12 of Trademark Law.

If no opposition is filed within the specified period, or opposition filed is not accepted after examination, the CTMO will register the trademark, issue the trademark registration certificate and publish the registration at the Trademark Gazette; where the opposition is accepted after examination, the application is rejected.

3．Documents and information required for trademark registration 1) Name and address of the applicant in both English and Chinese;
2) The classes in which registration is sought;
3) Specification of all the goods or services sought to be covered in each application. In order to avoid the office action, those goods or services items should be sought from the Nice Classification;
4) A copy of the applicant’s passport/ID card if the applicant is an individual, or a copy of Business License for company, which should be stamped and/or signed by the applicant, and with its Chinese translation if it is not in Chinese;
5) Details of the priority application (if appropriate);
6) A certified priority document and its Chinese translation, if it is not in Chinese;
7) Trademark reproductions in black and white; if color is to be protected, one colored and one black and white trademark reproductions. The reproductions shall be clear, and sized between 5cm x 5cm and 10cm x 10cm;
8) A copy of original Power of Attorney signed or stamped by the applicant, no legalization or notarization is required 9) Special supporting materials such as: where the trademark is a portrait: notarized letter of consent from the person of the portrait is required;
where it is a collective trademark: business license of the applicant; The Administrative Regulations on Use of Collective Mark and name and address of the collective organization (if other than those of the applicant) are required;
where it is a certification trademark: Business License of the applicant; The Administrative Regulations on Use of Certification Mark and Certification issued by the pertinent Government department concerned testifying that the applicant has the ability of testing and supervising the qualities of the said goods/services are required
4．Time frame for trademark registration 1). From filing to the issuance of official receipt: 1-3 months;
2). Substantive examination: 9 months;
3). Publication for opposition period: 3 months;
4). Time for issuance of Certificate: 1-2 month.

Trademark Renewal

The protection term for a registered trademark is ten (10) years, calculated from the registration date. The protection term can be renewed. Application for renewal of registered trademark shall be filed with the CTMO within 12 months before the expiration of the period of validity.
If no application is filed within the said period, a grace period of 6 months is allowed with a payment of surcharge. If there is still no renewal application filed within the grace period, the registration will be cancelled.
Documents and information required for trademark renewal 1. Information of the registered trademark, especially whether any assignment or name/address changed has been recorded at the Trademark Office before renewal;
2. A copy of Registration of Certificate for our verification.
3. A copy of original Power of Attorney signed or stamped by the applicant, no legalization or notarization is required

Trademark Assignment

For trademark assignment, the CTMO requires that the applicant should file the assignment application to assign all of its/his/her identical or similar registered or pending trademarks on identical or similar goods/services at the same time.

For assignment, the application should be filed by both the assignor and assignee and the assignee should proceed with the assignment procedures. Upon approval, the Trademark Office will issue Assignment Certificate to the assignee.

Documents and information required for Assignment

1. Information of the registered trademark or pending application;
2. Name and address of the assignor and assignee, and their Chinese translation;
3. A copy of original Power of Attorney signed or stamped by assignee;
4. Assignment Application Form;
5. A copy of passport / ID card of the assignee and assignor if they are individuals, or a copy of Business License if they are companies.

Recordal of Change

When the name or address or the representative of the applicant has been changed, the applicant should file a request for change. The Trademark Office requires that the applicant should request the change(s) in respect of all of its/his/her registered trademark or pending application in China at the same time. Upon approval, the Trademark Office will issue relevant certificates to the applicant regards on the change.

Documents and information required for Change

1. Information of the registered trademark or pending application;
2. New name and/or address in both English and Chinese;
3. One Power of Attorney signed or stamped under the new name;
4. Supporting materials for the change of name/or address of registrant (certified copy of name change issued by applicant's local government). Only one copy of supporting materials is required if the change is to be recorded for numerous registered trademark or pending applications for the same applicant.

Recordal of Trademark License

Where the licensor authorizes another person to use his registered trademark, he shall submit the trademark license to the Trademark Office for recording. Upon approval, the Trademark Office will issue the Notification on License Recordation and publish it. A trademark license shall not be used against any bona fide third party, if no record therefor is made.

Documents and information required for the recordation of trademark license

1. Information of the registered trademark to be licensed as well as a copy of Trademark Registration Certificate;
2. Name and address of both licensor and licensee in both English and Chinese;
3. Application Form for license Recordation signed or stamped by the Licensor,;
4. A copy of passport / ID card of the licensee if the licensee is a individuals, or a copy of Business License of the licensee if the licensee is a company;
5. A copy of original Power of Attorney signed or stamped by the licensor;

Trademark Opposition

The prior right owner or any interested party may, within three months from the date of publication, files an opposition against an accepted and published application for registration of a trademark, if he finds that the application stands in violation of the provisions of Article 13, paragraph two or three, Article 15, Article 16, paragraph one, Article 30, Article 31 or Article 32 of this law, or any person finds that the application stands in violation with the provisions of Article 10, Article 11, or Article 12 of Trademark Law.

After receiving a copy of the "Application for Trademark Opposition" as well as the relevant documents dispatched by the CTMO, the opposed party should make observations within the specified time limit. Where no response is made before the expiration of the time limit, the examination conducted by the Trademark Office will go on unhindered.

If not satisfied with the Decision on Opposition of Trademark issued by the CTMO, the opposed party may, within fifteen days from the receipt of the Decision, file a request for Review with the TRAB. Law suit can be further filed if the opposed party does not satisfied with the decision made by the TRAB.

Where the Trademark Office makes a decision to approve the application for registration of a trademark, a certificate of trademark registration shall be issued and the trademark shall be published. Where the opponent party dissatisfies with the decision, he may, in accordance with the provisions of Article 44, or Article 45 of Trademark Law, request the TRAB to declare the registered trademark invalid

Requirements on Filing an Opposition Application

1. Name and address of the applicant both in English and Chinese;
2. Information of the trademark application opposed;
3. Reasons and supporting evidence materials;
4. Power of Attorney signed or stamped by the opposing party.
　　

Review Application

TRAB accept review applications filed based on Articles 34, 35, and 54 of the Chinese Trademark Law:
Review applications filed based on Article 34 is against the rejection of trademark registration applications made by the Trademark Office.
Review applications filed based on Article 35 is against the opposition decisions made by the Trademark Office.
Review applications filed based on Article 54 is against the cancellations decisions of trademark registrations made by the Trademark Office.
An applicant can file a review application at TRAB within 15 days upon receipt of rejection notice, opposition decision or cancellation decision. TRAB will review and adjudicate the case, made the decision and notify the applicant in written. If the applicant is not satisfied with the decision of TRAB, it/he can file a lawsuit at the People's Court within 30 days upon receipt of the decision from TRAB.

Requirements on filing a review application:

1. The original rejection notice, opposition decision or cancellation decision from the CTMO;
2.Information of the trademark application or registration involved;
3.Name and address of the applicant in both English and Chinese;
4.Reasons and evidence materials;
5.Power of Attorney signed or stamped by the applicant.

Requirements for review on refusal regarding a Madrid International Trademark

1. Information of the international registration;
2. A copy of WIPO's cover letter for forwarding the Notice on Refusal;
3. A copy of the Notice of Refusal from the CTMO;
4. Reasons and relevant evidence materials;
5. Power of Attorney signed by the applicant.

The period for request review is 30 days from the delivery date listed on WIPO's cover letter forwarding the refusal notice.

Invalidation

A registered trademark, if it violates Articles 10, 11 and 12 (prohibition of registration), or its registration was acquired by fraud or any other unfair means, can be cancelled by the Trademark Office, a third party also can file a invalidaton requesting TRAB to declare the registered trademark invalid.

A registered trademark, if it violates Article 13 of the Chinese Trademark Law (well-known trademark protection), Article 15 (not-allowing agents or representatives to register trademarks without authorization), Article 16 (geographic mark protection), Article 32 (not-allowing to violate prior rights of a third party), within 5 years from the date of registration, the actual trademark owner or party(ies) with interest can file a invalidaton requesting TRAB to declare the registered trademark invalid.

If the trademark is registered in bad faith, there is no time limit of 5 years to file the invalidation by the owner or party with interest (of well known mark).

Where a prior registered trademark owner believes that a later registered trademark is identical to or similar with its trademark on identical or similar goods, it/he can request the TRAB to review and adjudicate within 5 years from the registration date of the later registered trademark.

TRAB will make a decision for the invalidation and notify the relevant parties in written. If any of the relevant parties does not satisfy with the decision, it/he/she can, within 30 days upon receipt of the decision, file a lawsuit against the decision at the People's Court.

Documents/information required for invalidation

1. Information of the disputed trademark registration;
2. information of the cited registered trademark or other type of prior right;
3. Name and address of the applicant in both English and Chinese;
4. Invalidation reasons and evidences ;
5. Power of Attorney signed or stamped by the applicant.

Cancellation Based on Three-year's Non-Use

Based on Chinese Trademark Law, if a registered trademark is not used in three consecutive years after registration, anyone can file cancellation application against it at CTMO. Upon receipt of the cancellation application, the Trademark Office will notify the trademark registrant, request it/him/her to provide use evidences or justified reasons of non-use in the three years before the cancellation filing date, within 2 months upon receipt of the notice; where there is no use evidences provided or use evidences provided are not valid or there is no justified reasons for non-use, the trademark registration will be cancelled by CTMO.

The owner of a registered trademark may indicate the words "registered mark" or the "R" symbol. Evidence such as invoices, advertisements, sales records, or Customs declarations indicating use of the registered mark will establish use of the mark. Use by a recorded licensee and use of the registered mark in advertisements or exhibitions in China will also satisfy the use requirement.

The cancelled registered trademark due to the continuous three-year's non-use will be published by the Trademark Office. The exclusive right terminates from the date of cancellation decision of the Trademark Office. If the relevant party is not satisfied with the cancellation decision, a review request can be filed at the Trademark Review and Adjudication Board (TRAB), TRAB will then review the decision and make its own decision. If the relevant party is not satisfied with the decision of TRAB, within 30 day upon receipt of the decision, a lawsuit can be filed at the People's Court.

Requirements for filing a cancellation application based on three-year's non-use

1. Information of the registered trademark to be challenged;
2. Name and address of the applicant in both English and Chinese;
3. Power of Attorney signed or stamped by the applicant;
4. Any investigation results of non-use of the registered trademark to be challenged.

Re-issuance of Certificate of Registration

Where a trademark Certificate of Registration has been damaged or lost, the applicant can file a request at the CTMO for re-issuance of the certificate.　

Requirements on Application for Re-issuance of Certificate of Registration

1. A copy of Trademark Certificate of Registration, or registration number and trademark if the aforementioned is not available;
2. Power of Attorney executed by the registrant.

Trademark Search

We usually advise clients to carry out an availability/conflict search prior to lodging a new application, in order to ascertain the availability for registration and the registrability of the proposed application. Note that this search is not compulsory and application may be lodged without a search first being conducted.