CHINA TRADEMARKS
LIGHT AT THE END OF THE TUNNEL: TRADEMARK
REFORM IN CHINA
The latest draft of China’s proposed trademark law promises significant changes. Fabio Giacopello and Bian Jun investigate.
On June 26, 2013, the National People’s Congress undertook the second reading of a draſt of the Trademark Law. Te draſt replaces the previous one published for comments in December 2012 (see WIPR Annual 2013, pp.18–19) and promulgation is expected soon with very limited amendments. Unlike the previous one, this draſt demonstrates more willingness to change.
Well-known trademarks
Article 14 states: “Producers and business operators shall not affix the words ‘well-known trademark’ to commodities, commodity packages or containers or use the words in advertisements, exhibitions and other commercial activities.” Tis provision is surprising and indeed has become notorious. Te new provision is clearly intended to curb the malpractice of companies that use the achieved legal status as a sort of promotion tool: “Buy my pen, my trademark is well-known.”
Consumers can be misled. Local governments compete with each other claiming to have the largest number of well-known trademarks granted and offer financial support to companies obtaining such recognition. Tis new provision brings well-known status back to basics, as a tool to obtain cross-class protection in trademark disputes and the basic requirement for the activation of Article 6bis of the Paris Convention. Moreover, it is likely that the threshold for obtaining well-known status will became lower. Indeed, it was initially set at a very high threshold in order to limit the distortion mentioned above.
Bad faith registrations
Te draſt maintains a few amendments introduced by the previous one.
According to Article 9: “Te application for registration, and use, of trademark shall be conducted in accordance with the principle of good faith.” Te principle was not previously contained in any provision of the Trademark Law.
Under Article 15 trademarks filed by “agents and representatives”, as well as by “business partners” will not be registered if it is proved that they definitely knew of the existence of the trademark. Tis widens the scope, even if the definition “definitely knew” seems to fix a high threshold.
Article 58 introduces the right of pre-use under which a prior user, who has not filed for registration of
to continue use within the original use range, but may be required to add appropriate distinguishing marks.
Mandatory timeframes
For the first time the new draſt fixes clear and mandatory timeframes for the China Trademark Office (CTMO) and the Trademark Review and Adjudication Board (TRAB): nine months for trademark examination and opposition (both extendable for a further nine months), six months for appeal on rejection and cancellations (extendable for a further six and nine months, respectively).
120 World Intellectual Property Review September/October 2013
www.worldipreview.com
the trademark, is entitled
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