The current trademark law in China is mainly based on the "Trademark Law of the People's Republic of China" that came into effect in 1983. The latest revision of this law was on April 23, 2019, and it came into effect on November 1, 2019. The China National Intellectual Property Administration undertakes the administrative functions of trademark registration and management within the Chinese Mainland, and the official language is Chinese. Trademark exclusive rights need to be obtained through registration. Trademark registration is not mandatory (except for tobacco), but legally registered trademarks can receive stronger protection. Chinese trademark registration adopts the principle of "application first".
China is a signatory to international intellectual property treaties such as the Paris Convention, the Nice Agreement, the WIPO Convention, the Singapore Treaty, and the TRIPS Agreement. It is also a member of the Madrid Agreement and the Madrid Protocol. These international treaties facilitate the international trademark protection of Chinese applicants, but they can only apply to the China National Intellectual Property Administration of China for registration when they need trademark protection in China.
At present, China adopts the Nice Classification 11th edition of product and service descriptions and accepts applications for multiple categories with one standard. The elements that can be registered as trademarks in China include: text, graphics, letters, numbers, color combinations, three-dimensional logos, sounds, and combinations of the above elements. Chinese applicants can either directly apply to the Trademark Office or entrust qualified domestic agencies to handle their domestic trademark applications. The basic materials required for trademark application are:
1. Trademark design;
2. Specific categories and product/service items;
3. Name and address of the applicant;
4. Copy of qualification certificate (such as business license, individual business license).
The main process of applying for registration of a Chinese trademark is: application acceptance examination announcement approval issuance. After the application is submitted, the official will conduct a formal review of the application, and it will take 3-6 weeks to complete the acceptance and issue the acceptance notice; Subsequently, a substantive review will be conducted. Formal review mainly examines whether the application requirements and classification information comply with regulations; The substantive examination includes the examination of the distinctiveness of the trademark, whether it violates other prohibitions and prohibitions, and whether it conflicts with prior trademarks. If the examination fails, a rejection notice will be issued, and the applicant has the right to apply for a re examination within the time limit specified in the rejection notice. If the substantive examination passes, an announcement will be arranged.
The opposition period is within 3 months from the date of announcement. Anyone can raise an objection to trademarks that lack distinctiveness and violate prohibited clauses. For trademarks that infringe on prior rights, relevant prior rights holders or interested parties can raise objections. Therefore, the reasons for objections mainly include:
1. The trademark lacks distinctiveness;
2. The trademark violates the prohibition clause, such as the trademark having adverse effects;
3. Conflict with prior trademarks, such as conflicts with prior registered trademarks or prior applied trademarks of others;
4. Register trademarks that have been used in advance and have certain influence;
5. Infringement of other prior rights, such as trade name rights, design rights, copyrights, personal names, etc.
If there are no objections or objections are not valid during the announcement period, registration can be approved and a registration certificate can be issued. In a smooth situation, trademark registration in China takes about one year; If things don't go smoothly and there are objections or rejections along the way, the time will be greatly extended.
Chinese trademarks are valid for 10 years after registration, starting from the date of registration; Renewal can be processed within 12 months before the expiration date, with a grace period of 6 months; The renewal is valid for 10 years.
The invalidation or revocation application after trademark registration can generally be filed based on the following reasons stipulated in the Trademark Law:
1. Violation of the provisions of the Trademark Law, such as: loss of distinctiveness;
2. Conflicts with prior trademarks or other prior rights of others;
3. If a trademark has not been actually used for three consecutive years without justifiable reasons after registration, anyone may apply for revocation.