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New Revision of China's Trademark Law
A proposal for a third revision of China's Trademark Law has been presented. With a more efficient process and better opportunities, the changes proposed are likely to make it even more attractive for foreign companies to invest in brand protection in China.
Guidelines for the revision have been established by the State Administration of Industry and Commerce (SAIC). At China's largest national trade meeting, which had the theme "Develop trademark strategy and build an innovation-oriented country", the new proposal was presented by Zhao Gang, deputy director of the China Trademark Office (CTMO). The meeting was held in the city of Qingdao in Shandong Province November 9-12, 2009.
It is likely to make it even more attractive for foreign companies to invest in brand protection in China. In addition, it will also hopefully in essence lead to increased opportunities for rights holders to act and defend their rights and allow for better compensation for infringement.
The proposals include:
1. An extension of the brand concept, which means that non-traditional trademarks such as sound, smell and color labels, are accepted.
2. An intention to improve and increase the potential even for foreign brands which do not attain the status of "famous", for example, to protect themselves from registrations in bad faith. Today, the domestic right holders have more opportunities to act, but this is likely to be evened out.
3. A restriction on the power to object, which will hopefully speed up the registration process. How it should be limited, however, is still unclear.
4. The level of compensation one demands from the infringer may increase.
5. A requirement for the trademark authority to complete the examination within 12 months from the filing date is likely to be eased, because of an increased number of trademark applications and a backlog in pending cases.
6. The local administrations for industry and commerce, Administration of Industry and Commerce (AIC), may be given increased powers which is likely to increase administrative efficiency, but with a risk that it is at the expense of legal certainty.
China's trademark law was adopted on August 23, 1982, and has been revised twice, 1993 and 2001. Work on the third revision began in 2004. SAIC issued a proposal on June 20, 2009 that is now in the legislature. The proposal will be reviewed in the National People's Congress for further discussion and decision. It is expected that the third revision of the Trademark Act will take effect within the next two years.
January 2010
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