Q: Who are the qualified foreign applicants for trademark (hereinafter referring to mark in respect of goods and/or services) registrations in China?
A: Any foreigner or foreign enterprise intending to apply for the registration of a trademark in China shall file an application in accordance with an agreement concluded between the P. R. China and the country to which the applicant belongs, or according to the international treaty to which both countries are parties, or on the basis of the principle of reciprocity.
Q: Is a local agent must for the foreign applicants to proceed with trademark-related matters before the Chinese Trademark Office (hereinafter referred to as the CTMO)?
A: Yes. Any foreigner or foreign enterprise intending to apply for the registration of a trademark and for any other matters concerning a trademark in China shall entrust any of such organizations as recognized by the State to act as his or its agent.
Q: Is the Power of Attorney required to be notarized or legalized?
A: No. Notarization and legalization of the Power of Attorney and other relevant certificates from a foreign person or foreign enterprise shall be done based on the principle of reciprocity.
Q: Are there any special requirements as to the prints of trademarks?
A: The reproduction of the trademark must be clear and easy to paste and shall be printed on smooth and clean durable paper or substituted by a photograph. Its length or breadth shall not be more than 10 cm and less than 5 cm each. if color is claimed, 10 copies of the color prints of the trademark shall be attached, so shall be 2 black and white prints of the trademark. Where an application is filed for the registration of a three-dimensional as a trademark, the reproduction capable of defining the three-dimensional shape be submitted.
Q: Is the International Classification of Goods and Services adopted in China?
A: Yes
Q: Is multi-class application available in China?
A: Yes.
Q: When shall the priority document be submitted to the CTMO if priority is claimed in China?
A: Certified priority document shall either be submitted together with the filing of the Chinese application or be supplemented within 3 months from the filing date of the Chinese application.
Q: Does China adopt first-to-file principle for trademark registration?
A: Yes. Where two or more applicants apply for the registration of identical or similar trademarks for the same or similar goods, the preliminary approval, after examination, and the publication shall be made for the trademark which was first filed. Where applications are filed on the same day, the preliminary approval, after examination, and the publication shall be made for the trademark which was the earliest used, and the applications of the others shall be refused and their trademarks shall not be published.
Q: What kinds of signs shall not be used as trademarks:
A: The following signs shall not be used as trademarks:
(1) those identical with or similar to the State name, national flag, national emblem, military flag, or decorations of the P. R. China, or identical with the name of particular site where the central government is located, or the name or shape of a building with symbolic significance;
(2) those identical with or similar to the State names, national flags, national emblems or military flags of foreign countries, unless otherwise consented by the government concerned;
(3) those identical with or similar to the names, flags, emblems or names of international intergovernmental organizations, unless otherwise consented by the organization or there is no likelihood to lead public confusion;
(4) those identical with or similar to the official identification, inspection seal that certifying control and guarantee, unless otherwise authorized;
(5) those identical with or similar to the symbols, or names of the Red Cross or the Red Crescent;
(6)those having the nature of discrimination against any nationality;
(7) those having the nature of exaggeration and fraud in advertising goods;
(8) those detrimental to socialist morals or customs, or having other unhealthy influences.
(9)The geographical names of the administrative divisions at or above the county level and the foreign geographical names well-known to the public.
Q: What kinds of signs shall not be registered as trademarks:
A: The following signs shall not be registered as trademarks:
(1) those only relating to generic names, designs or model of the goods in respect of which the trademark is used;
(2) those only having direct reference to the quality, main raw materials, function, use, weight, quantity or other features of' the goods in respect of which the trademark is used;
(3) those lacking distinctiveness
Any signs as listed in the proceeding paragraph acquiring distinctiveness through use and becoming distinguishable, shall be approved and registered as a trademark.
Q: What remedy does the applicant have if his or its application for trademark registration is rejected by the Trademark Office?
A: The applicant may request for a review with the Trademark Review and Adjudication Board within 15 days from receipt of the notification of refusal. Extension is not available.
Q: Is there any use requirements in China for registered trademarks?
A: Yes, where a registered trademark has ceased to be used for three consecutive years from the registration date, any party may apply to the TMO for the cancellation of the registered trademark in question and state the facts related thereto.
Q: What is the valid period for filing a renewal application?
A: Where the registrant intends to continue to use the registered trademark beyond the expiration of the validity period, an application for renewal of the registration shall be made within 12 months before the said expiration. Where no application therefore has been filed within the said period, a grace period of 6 months may be allowed. If no application has been filed at the expiration of the grace period, the registered trademark shall be cancelled. The period of validity of each renewal of registration shall be 10 years.
Q: Shall a change of name application or an assignment application be filed in case of a merger?
A: In case of a merger, assignment application(s) shall be filed.
Q: Shall a change of name application be filed in registrant's initial name or in its new name?
A: Change of name application should be filed in the registrant's new name.
Q: Can change of name or address be recorded with the CTMO against pending applications?
A: Yes.
Q: Does the registrant have to file change of name/address applications simultaneously for all the marks registered under his or its name?
A: Yes. When applying for change of name or address, the registrant shall do the same modification in respect of all his registered trademarks
Q: Is recordal of trademark license compulsory?
A: Yes. Where the licensor authorizes another person to use his registered trademark, he shall submit the trademark license to the Trademark Office for recording, and the Trademark Office shall publish it. A trademark license shall not be used against any bona fide third party, if no record therefor is made.
Q: What is the valid period for filing an opposition?
A: An opposition should be filed within three (3) months from the date of publication of a preliminarily approved trademark. No extension of time can be obtained for filing an opposition.
Q: How many copies of the opposition documents should be filed with the Trademark Office?
A: The documents including the supporting materials should be filed in duplicate.
Q: Can the applicant file a response to rebut an opposition against his or its preliminarily approved trademark?
A: Yes, the applicant may file a response within 30 days from receipt of the notification of the opposition from the CTMO. If no response has been made at the expiration of the specified period of time, the TMO shall make adjudication by default.
Q: If dissatisfied with the decision made on an opposition by the CTMO, what further action can the parties to the opposition take?
A: 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. Where the Trademark Office makes a decision to approve the application for registration of a trademark,and the opponent party dissatisfies with the decision, he may request the TRAB to declare the registered trademark invalid No extension of time can be obtained for filing a review application.
Q: Are the documents and the supporting materials for a review of an opposition required to be in duplicate?
A: Yes, they shall be filed with the TRAB in duplicate.
Q: In what occasion can a invalidation application be filed with the TRAB?
A: Any registrant of a prior (filed) trademark, who holds that a registered mark is similar to or identical with his or its prior mark in respect of similar goods/services, may file with the TRAB a invalidation against the registered trademark within five (5) years from the date of registration thereof.
Q: Can a cancellation request be filed toward a registered trademark?
A: A cancellation can be requested in the following situations:
(1).Where a registered trademark has ceased to be used for three consecutive years from the date of registration, any person may apply to the TMO for cancellation of the registered trademark in question;
(2).Where a registered trademark includes words or design that, in accordance with the Trademark Law, are not permitted to be used in trademarks, or the registration of a trademark was acquired by fraud or any other unfair means, the TMO shall cancel the registered trademark in question; Any other organization or individual may request the TRAB to cancel such a registered trademark;
(3) where a registered trademark is in conflict with an unregistered well-known mark in respect of similar goods/services or with a registered well-known mark in respect of goods/services that are not similar; where a mark is registered by the agent or representative in his own name without authorization of the trademark proprietor; where a registered trademark infringes the existing earlier right of another person; or where a registered trademark is a pirate of another person's trademark that has been used and enjoys certain reputation; In these cases, the owner of the trademark concerned or any interested party may, within five years from the date of registration, request the TRAB to cancel the registered trademark. Where the registration has been obtained in bad faith, the owner of a well-known mark shall not be bound by the five-year time limit.
Q: Are the adjudication or decision made by the TRAB final?
A: No, they are not final. Any interested party who is dissatisfied with the adjudication or decision made by the TRAB may, within thirty (30) days from receipt of the notification of the adjudication or decision, institute legal proceedings with the people's court.