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Trademark Registration Basics in China

Trademark Registration in China

Trademark registration in China is governed by The Trademark Law of the People’s Republic of China, which was first adopted in 1982. The State Council promulgated Regulations on the Implementation of the Trademark Law in 1983. The Trademark Law was revised in 1993 and 2001, and in 2002 new Implementing Regulations were issued, in part, to bring China’s trademark legislation into compliance with the WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). The revised Trademark Law extended protection to collective marks, certification marks and three-dimensional symbols, as required by TRIPs.

Professional Advice

Engage the assistance of legal professionals with both China and IPR expertise early in the process, and involve them in the development of your overall Chinese business strategy. Membership in anti-piracy organizations can also help.

Registering a trademark allows your company to leverage its brand and prevent others from using your name or trying to confuse customers with a similar brand. It does take some time and modest resources to register a trademark in China but the alternative – exporting to China without a registered trademark – would leave your brand unprotected and open to considerable risk.

Why should I register my trademark in China?

Your registered trademarks in Canada are not applicable in China. Therefore, if you see good opportunities in China and are looking to remain in the market for the medium to long-term, then it is important to have your IP taken care of right at the beginning. China is a first-to-file country meaning that, all else being equal, whoever applies for a trademark first, will obtain the registration. Unless you can manage to do business without your existing brand, seriously consider registering your trademark in China.

How do I register my trademark in China?

For a foreign company that does not have a base in China, a trademark agent or lawyer is required to register. For a list of additional service providers, please visit the recommendations for protecting your intellectual property rights in China page. The cost of registering a trademark using an agent is around $500 for one product class. A straight forward trademark registration can take approximately 18 months.

In what product class should I register my trademark?

When registering your trademark you will want to make sure your company registers trademarks in all the appropriate product classes to ensure proper protection. For example, it may be obvious to apply for your trademark under "food product" but you may also want to consider registering your trademark under "health food product" and "beverage" and "processed foods" - these are just fictitious examples to give you an idea. Please refer to the Nice Classification for the actual classes of good used in China. The important point is to cover all the classes of goods you are interested in (and even not interested in) so that you avoid someone registering your trademark in another class of goods and then competing with your product. Clearly, it is cost prohibitive for the average company to cover all product classes. This is when a trademark agent or lawyer may be able to provide some expert advice.

What other guidance do you have for my trademark registration?

For your trademark registration, you will want to have Chinese versions of your trademarks. This is important because Chinese consumers will need a Chinese name in order to identify your product. A good Chinese trademark is just as important as your English and/or French one. Look for assistance from a person with a strong grasp of Mandarin Chinese to come up with a Chinese trademark so that you avoid any inappropriate or poor trademarks. Treat the registration of your Chinese trademark as important as your English/French trademark - you will want to arrange the registration yourself as opposed to, for example, letting your distributor or local partner register for you. It is also important to ensure that your trademark will not infringe on any existing registered trademarks in China. Your trademark agent/lawyer can conduct a search to minimize this risk. You may also wish to conduct a preliminary research by sending email inquiries to us.

How do I make sure my trademarks are not infringed?

In terms of prevention, as in Canada or any other market in the world, there is no guarantee that another party will not infringe your rights. Without a registered trademark, however, there would be no effective remedies to put an end to the infringing activities. A registered trademark ensures that you have legal recourse. Admittedly, the last thing any company wants to deal with is a costly court case or lawyer fees, so prevention is key to ensure that problems do not get out of hand. It is important to monitor your partners and distributors as well as the marketplace to ensure that your trademark is not being infringed and that no one is registering copycat trademarks. It is also important to be selective with your distributors which means proper due diligence to ensure they have good reputations. Finally, even after selecting a good partner, it may be prudent to insert intellectual property-related clauses in your agreements.

Early Bird Get the Worms

China has a "first-to file" system that requires no evidence of prior use or ownership, leaving registration of popular foreign marks open to third parties. China joined the Madrid Protocol in 1989, which requires reciprocal trademark registration for member countries, which include the United States. As an experienced trademark lawyer in China, I strongly recommend you to register your trademark early in China. Foreign companies seeking to distribute their products in China are advised to register their marks and/or logos with the Trademark Office. Further, any Chinese language translations and appropriate Internet domains should also be registered. As with patent registration, foreign parties must use the services of approved Chinese agents when submitting the trademark application, however foreign attorneys or the Chinese agents may prepare the application. Recent amendments to the Implementing Regulations of the Trademark Law allow local branches or subsidiaries of foreign companies to register trademarks directly without use of a Chinese agent.

 
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China Lawyer BLog AuthorPeter Zhu, an experienced China attorney licensed to practice law for more than ten years, the author of this China Lawyer blog, welcomes any enquiry or consultation related to Chinese law.