China Trademark Service
Hotline: 86-755-82143422/86-13823131503
Email: anitayao@citilinkia.com
Wechat:13823131503
The new China Trade Mark law took effect on 1 May 2014
China trademark Law means that trademark law which is approved by China trademark bureau,
After several drafts and more than a decade of waiting, the revisions to the China Trade Mark Law took effect on 1 May 2014.
We set out below a summary of these and other key changes to the new Law.
1. Sound marks:
registrations of sound marks are now permitted.
2. Application procedures:
multi-class applications and applications in electronic form are permitted. Division of an application is allowed where part of the goods/services description is refused, but there are no rules on division resulting from oppositions, assignments, renewals, cancellations, invalidations etc.
The CTMO may also request an applicant to clarify or amend the content of an application rather than issuing a refusal. This is an entirely new provision which will hopefully avoid unnecessary refusals.
3. Trade names:
The new Law clarifies that conflicts between registered trade marks or unregistered well-known trade marks and trade names, i.e. company and business names, should be handled under the Unfair Competition Law, not the Trade Mark Law.
4. Damages:
Maximum statutory damages for trade mark infringement have been increased from CNY500,000 to CNY3,000,000. However, a court will only grant statutory damages where it is not possible to determine damages based on actual losses, profits made by the infringer or a reasonable royalty basis.
Assessed damages can be multiplied up to three times where the infringer acted in bad faith or the circumstances are serious. No further details are given as to what “bad faith” or “serious” means in this context.
A court may order the infringer to provide evidence of their accounts for assessing profits from the infringing activity, and if the infringer refuses to do so or provides false accounts, the court may rely on the claims and evidence of the trade mark owner.
A new limitation on damages has been included. An infringer can challenge the trade mark right owner to provide evidence to prove that the owner has used the registered trade mark during the preceding three years or that the owner has suffered loss as a result of the infringement, failing which the infringer shall not be held liable for any damages.
5. Oppositions:
Only the owner of a prior right or an interested party can bring an opposition on relative grounds or for misleading use of a geographical indication, but anyone can bring an opposition on absolute grounds.
Once an opposition has been decided, only an applicant can appeal the CTMO’s decision to the TRAB. If the CTMO rejects the opposition, the mark will proceed to registration and the opponent is left with the possibility of filing an invalidation action with the TRAB.
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