CHINA TRADEMARK LAW
T
he eagerly-anticipated amendments to China’s Trademark Law will come into force on May 1, 2014. To prepare for
the implementation of the new law, the Chinese authorities have issued new draſt Trademark Review and Adjudication Board (TRAB) rules and are discussing revisions to the Trademark Law implementing regulations. T ese will also need to be in place on or before May 1, 2014.
Principles of ‘honesty’ and ‘good faith’
T e new law introduces a requirement that has been long-awaited by brand owners that have fallen victim to trademark squatting: all applications must follow principles of ‘honesty’ and ‘good faith’. However, while this is clearly a step forward in addressing trademark squatting, this new requirement is not listed as a possible ground for opposition. It is unclear whether the China Trademark Offi ce (CTMO) will be prepared, in practice, to reject a trademark when evidence included in an opposition shows that a mark has not been applied for in line with these principles.
No right of appeal for opponents
Under the existing law, if someone unsuccessfully objects to
a trademark during opposition
proceedings before the CTMO, they may appeal against that decision to the TRAB. However, under perhaps the most far-reaching amendment of the new law, an unsuccessful opponent will no longer be able to appeal against the CTMO’s decision, but instead must fi le a cancellation action at the TRAB. T e trademark applicant, on
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the other hand, will continue to have a right to appeal against the CTMO’s decision to the TRAB.
An opponent’s right of appeal to the TRAB has in practice been of great importance to brand owners because the TRAB typically takes a more nuanced approach to trademark applications than the CTMO. Unfortunately, given the high workload of CTMO examiners, it is not uncommon for errors to be made, resulting in credible oppositions against squatted marks initially being refused.
T e rationale behind the removal of an
opponent’s right to appeal is that it will speed up the time-frame from application to grant of a trademark. T is will be welcomed by applicants who have fi led an application in good faith, but the downside for victims of trademark squatting is that there may be an intermediary period in which the squatted mark is registered and can be enforced by the squatter against the brand owner.
T e practical implication of this amendment is that opposition proceedings will become very much the fi rst and last chance a brand owner has to defeat a trademark squatter—a challenging concept for many Western brand owners to understand.
Only ‘interested parties’ can oppose
Under the existing law, anyone can oppose the registration of a trademark. Lengthy opposition proceedings have made it possible for parties to fi le oppositions for strategic purposes, delaying an application to gain leverage over an applicant.
Trademarks & Brands Online Volume 3, Issue 2 55
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