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Types of Marks |
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The term "trademark" used in the
trademark law refers to marks used on goods and for services.
Collective marks and certification marks are also registrable.
Said collective marks mean signs,which are registered in the
name of a group, an association or other organizations to be
used by the members thereof in their commercial activities to
indicate their membership of the organizations.
Said certification marks mean signs which are controlled by
organizations capable of supervising certain goods or services
and used by entities or individual persons outside the
organization for their goods or services to certify the origin,
material, mode of manufacture, quality or other characteristics
of the goods or services.
Geographical indication can be registered as collective mark or
certification mark. |
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Registrable Marks |
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Registrable marks are any visually
perceptible signs capable of distinguishing the goods or
services, including words, devices, letters of an alphabet,
numerals, three-dimensional signs, combinations of colours as
well as the combination of such signs.
Registered trademarks shall be so distinctive as to be
distinguishable, and shall not conflict with any prior right
acquired by another person.
A registered mark is protected in respect of the goods/services
registered, unless it is recognized as well-known trademark. In
particular, any of the following acts shall be an infringement
upon a registered mark:
- to use a trademark that is identical with or similar to a
registered trademark in relation to identical or similar goods
without the authorization of the owner of the registered
trademark;
- to sell goods using a trademark that is identical with or
similar to a registered trademark in relation to identical or
similar goods without the authorization of the owner of the
registered trademark;
- to counterfeit or make, without authorization, representations
of a registered trademark of another person, or sell such
representations;
- to change a registered trademark and put goods bearing the
changed trademark on market without authorization of the owner
of the registered trademark; or
- to cause, in other respects, prejudice to the exclusive right
of another person to use a registered trademark. |
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Unregistrable Marks |
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The following signs shall not be
registered as - signs which consist exclusively of generic
names, designs or models of the goods in respect of which the
trademark is used trademarks;
- signs which consist exclusively of direct indications of the
quality, primary raw materials, functions, use, weight, quantity
or other characteristics of the goods in respect of which the
trademark is used; or
- signs which are devoid of any distinctive character.
Signs mentioned in the preceding paragraphs may be registered as
trademarks if they have acquired distinctive character through
use and are capable of being readily identified and
distinguished.
If a three-dimensional sign consists exclusively of the shape,
which results from the nature of the goods themselves, the shape
of goods, which is necessary to obtain a technical result, or
the shape, which gives substantial value to the goods, it shall
not be registered as a trademark.
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Classification |
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China adopts the International
Classification of Goods and Services formulated pursuant to the
Nice Convention on November 1, 1988. Designated goods/services
for a trademark application must be clear. One application can
only cover one class of goods/services.
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Filing Requirement |
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It
is important to note that each application shall cover only one
trademark in one class. Each application must include the
following documents:
- Application form;
- Power of Attorney, signed by the applicant. Notarization and
legalization of the Power of Attorney is not required;
- Five prints of the label, not exceeding 10cm or being less
than 5cm in length and breadth. If the mark is in color, one
black and white label shall be submitted in addition to the five
color prints;
- Priority document, if priority is claimed. |
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Examination |
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Applications are examined as to the
formality and substance. Examination to the formality will
include the correctness of document and classification.
Examination to the substance will include the registrability of
the mark and possible conflict with prior rights. |
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Amendment of Application |
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Amendment is only possible when required by the Trademark Office. At the stage of substance examination, amendment may lead to the deletion of part of the mark or of the specification.
Failure to make an amendment required by the Trademark Office may lead to the refusal of the application. |
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Registration/Duration/Renewal |
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A mark will become registered if
within the period of three months following its publication
there is no opposition filed against its registration, or the
opposition filed is decided not justifiable.
A registration is valid for ten years starting from the date of registration and can be renewed indefinitely, each time for ten years.
Renewal applications shall be made within six months before the expiration date or, subject to payment of an additional fee, within six months after the expiration date. Each renewal application shall include an application for renewal of trademark registration and a Power of Attorney. |
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Madrid Registrations |
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An
international registration in China under the Madrid Agreement
or Protocol can be effective by notifying the Madrid Union
Office to add China to the list of registration countries for a
particular mark. Under the Madrid Agreement or Protocol, the
Trademark Office has the right to reject trademarks not
conforming to the China Trademark Law. |
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Appeal |
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An application that is refused by the Trademark Office may be appealed to the Trademark Review and Adjudication Board within fifteen days from receipt of the notification.
If any party is not satisfied with the decision made by the Trademark Review and Adjudication Board, he may institute a legal action in court within 30 days from receipt of the notification. |
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Opposition |
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Any one can, within three months from the date of publication, oppose against a preliminarily approved trademark. The Trademark Office shall make a written decision, which can be appealed to the Trademark Review and Adjudication Board if any party is not satisfied with the decision.
If any party is not satisfied with the decision made by the Trademark Review and Adjudication Board, he may institute a legal action in court within 30 days from receipt of the notification. |
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Recordation of Change of Name/Address/Assignment/License |
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All changes of registrant including name and/or address shall be recorded with the Trademark Office. The recordal of change should be made for all the registered trademarks owned by the same registrant at the same time.
When applying for the assignment of a registered trademark, both the assignor and assignee shall jointly file an application to the Trademark Office. The assignee shall do the formalities required in applying for the assignment of a registered trademark. Assignment is effective only when recorded with the Trademark Office. All the same or similar registered trademarks on the same goods or similar goods of the same registrant should be assigned at the same time.
Assignment of pending trademark application is also possible.
License contract is to be recorded with the Trademark Office within three months after the execution of such contract. |