China Copyright & Patent Service
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The current effective trademark law of China was enacted August 23, 1982 and was effective on March 1st 1983. It was revised respectively in February 1993 and in October 2001. The amendment of 1993 included “service trademarks” in the work of trademark protection. The amendment of 2001 added three-dimensional trademarks and color combination trademarks in the scope of trademark protection and offered greater protection to well-known trademarks. The revised "Trademark Law" also stipulates that the trademark system shall be used to protect geographical marks and judicial examination shall be added for the granting process of trademark rights. This amendment would meet the requirement of WTO's "Agreement on Trade-related Aspects of Intellectual Property Rights."(TRIPS)
In accordance with the provisions of the "Trademark Law", the State Administration for Industry and Commerce (SAIC) formulated or revised several administrative rules and regulations, including the "Regulations for the Implementation of the Trademark Law" "Provisions on the Recognition and Protection of well-known Trademarks""Procedures for the Management and Registration of Collective Trademarks and Certification Trademarks" and "Procedures for the Implementation of Madrid Agreement for the International Registration of Trademarks" .
Currently, the trademark registration system in China is a blend of voluntary and compulsory registration. According to the PRC Trademark Law “Any natural person, legal entity or other organization, intending to acquire the exclusive right to use a trademark for goods produced, manufactured, processed, selected or marketed by him, shall apply for registration of the trademark used on goods to the Trademark Office. Any natural person, legal person or other organization, intending to acquire the exclusive right to use a service mark for services provided by him, shall apply for registration of the service mark to the Trademark Office. Provisions in this Law concerning trademarks used on goods shall also apply to service marks”
The PRC Trademark Law Article 6 stipulates “For goods that, as required by the State, must bear a registered trademark, an application for registration of a trademark shall be filed. If no registration has been made, such goods cannot be sold in the market”In other words, the trademark user can use the trademark in the market if the trademark is not conflict with other prior rights, but if the trademark user wishes to acquire an exclusive trademark right, he or she should register the mark, otherwise, the used trademark could not be protected by the trademark law (unless the unregistered trademark has been a wee-known trademark). However, tobacco products are required to use registered trademarks, otherwise, they are not permitted to be sold in the market.Trademark registration and some others administrative disputes (opposition, cancellations) in mainland China is administered by the China Trademark Office (with an appeal function administered by the Trademark Review and Adjudication Board and the Beijing No.1 Intermediate People’s Court) .The others disputes and infringement cases will handled by the local AIC and the different level courts.
In 1980, trademark applications were only about 20,000. The amount reached 132,000 in 1993. Since 2001, the amount of application boomed and increased extremely and reached 300,000 in 2001 with increased 100,000 annual year. The amount of applications reached over 700,000 in 2007. The valid registration exceeded 3,000,000. Since entering WTO, both the amount of foreign applications and the amount of foreign trademark registrations have kept increasing. In 1982, there were 1,565 foreign trademark applications in China. The application amount exceeded 20,000 in 1993 and exceeded 50,000 in 2007. The total valid registration amount exceeded 450,000 in 2007[16]. In parallel, statistics show that trademark litigations have exploded since 2001. Since 2001 to 2007, the Chinese Court heard 74,200 cases related to trademark infringement including 17,395 in 2007 with average annual increase of 22.92%.
The China is the member of the Paris Convention for the Protection of Industrial Property, the Agreement on Trade-Related Aspect of Intellectual Property Rights (TRIPS) and the Madrid Agreement and Madrid Protocol.
Trademark infringement in China is still a rampant problem now, despite the effective and prompt administrative raid procedure available for trademark owners under the assistant of the State Administration for Industries and Commerce and the judicial enforcement. China should reform the trademark law and relevant statutes and enforce strongly to combat the infringers. As I know, the criminal criteria for trademark infringement will be lower and the statute damage will be increased in the next revised trademark act.
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