China adopts a “first-to-file” approach for securing trademark rights, emphasizing that the entity filing the trademark application first generally gains the right to register that particular trademark. In China, little to no protection is afforded based on prior use. Therefore, it is highly advisable to initiate trademark applications as early as possible, ideally well before entering the Chinese market. Delaying the application process opens the door for other entities to file ahead of you, potentially leading to the exclusion of your products from the Chinese market due to pre-existing registrations.

Instances abound where trademark counterfeiters obtained registrations ahead of authentic brand owners and subsequently initiated infringement actions against distributors of genuine products. In navigating market dynamics, brand owners may find themselves compelled to offer substantial compensation to counterfeiters for the assignment of trademark registrations.

In China, a wide range of signs, including words, graphics, letters, numbers, three-dimensional signs, color combinations, sounds, and combinations thereof, can be registered as trademarks and enjoy protection. “Registered trademarks” are those approved and registered with the Trademark Office, encompassing goods marks, service marks, collective marks, and certification marks. However, unique to China, smell cannot be registered as a trademark, unlike in some other countries.

 Certain signs are prohibited from being registered as trademarks, including those identical or similar to national symbols, names, or emblems of China and foreign countries, as well as names or signs of international organizations. Discriminatory, fraudulent, or morally objectionable signs are also ineligible. Geographical names above the county level and well-known foreign geographical names cannot be used as trademarks, except in specific circumstances. Additionally, generic names, indicators of product characteristics, and marks lacking distinctive features are not eligible for trademark registration in China. Once registered, trademarks bearing geographical names remain valid, but signs bearing generic or non-distinctive characteristics are not accepted for registration.

• Local consumers commonly refer to foreign brands using Chinese versions, even in the absence of an “official” Chinese version in marketing materials. To proactively address this, it is highly recommended to create and register a Chinese version of your trademark. Failing to do so may result in the local market creating its own version, which could be registered by someone else. The China Trademark Office considers foreign equivalents during the examination process, meaning the Chinese version of a word could hinder the registration of the English version for the same goods or services. Registering a Chinese character version enhances consumer recognition, protects your brand in a market with a different language and script, and prevents unfavorable versions from being created. While not mandatory, it is a strategic move to strengthen your brand’s protection, recognition, and market presence in China.

• If all the submitted documents meet the approval of the Trademark Office of the National Intellectual Property Administration, and the entire process unfolds smoothly without the need for additional procedures such as reviewing refused applications, invalidation, or cancellation, the standard timeframe to secure a trademark registration in China is a minimum of eight months. As stipulated by the law, the Trademark Office is obligated to conclude the examination of the application documents within nine months from the receipt of the complete application.

• A trademark application in China undergoes a formal examination and substantive examination on both absolute and relative grounds within six months from the date of receiving the application documents for trademark registration.

   The assessment of applications by the Trademark Office follows the Standards for Trademark Review and Examination, encompassing both formal and substantive aspects. Each application is carefully scrutinized for potential conflicts with existing trademarks. While a letter of consent may be considered in cases of objection based on a third-party mark, its effectiveness varies and depends on the sender’s identity.

   Notably, there is no obligatory requirement in China to claim or prove the use of a trademark or service mark before registration. Priority rights may be granted for foreign registrations if the applicant files a trademark registration application in China within six months of the first application for the same trademark and goods in a foreign country, based on agreements, international treaties, or reciprocity principles between China and the foreign country.

   While registration is possible without prior use, a registered trademark may face revocation if it becomes the generic name for designated goods or remains unused for three consecutive years without valid reasons. In such cases, any entity or individual can petition the Trademark Office for revocation, and the office is mandated to make a decision within nine months of receiving the application.

• Here are some key points regarding who can apply for a patent:
• Individual Inventors: An individual or group of individuals who have created a new and useful invention can apply for a patent.
• Employer-Employee Relationship: Right to file a patent may belong to the employer if the invention was created by an employee during the scope of their employment.
• University or Research Institution: If an invention is created by researchers or scientists at a university or research institution, the institution may have the right to apply for the patent.
• Assignees or Legal Representatives: The patenting right can be transferred or assigned to another entity. This may happen through contractual agreements, such as when an inventor sells or transfers their rights to a company or individual.
• Highlighting the significance of the priority date, it’s essential to note that the first person or entity to submit a patent application for a particular invention typically gains priority in obtaining the patent. This underscores the importance of timely filing, as the priority date is determined by the time of filing in many jurisdictions.

• Here are some key points regarding who can apply for a patent:
• Individual Inventors: An individual or group of individuals who have created a new and useful invention can apply for a patent.
• Employer-Employee Relationship: Right to file a patent may belong to the employer if the invention was created by an employee during the scope of their employment.
• University or Research Institution: If an invention is created by researchers or scientists at a university or research institution, the institution may have the right to apply for the patent.
• Assignees or Legal Representatives: The patenting right can be transferred or assigned to another entity. This may happen through contractual agreements, such as when an inventor sells or transfers their rights to a company or individual.
• Highlighting the significance of the priority date, it’s essential to note that the first person or entity to submit a patent application for a particular invention typically gains priority in obtaining the patent. This underscores the importance of timely filing, as the priority date is determined by the time of filing in many jurisdictions.

The prosecution and grant of a patent involve a comprehensive examination process initiated by the filing of a patent application, often accompanied by a request for examination. This process includes a meticulous review by a patent examiner who assesses the novelty, non-obviousness, and utility of the invention. The applicant may need to make amendments to the patent claims based on the examiner’s feedback through office actions. Successful resolution of these actions leads to the issuance of the patent, granting exclusive rights to the inventor. Throughout this journey, from the initial filing to when the patent issues, the application is examined and refined, making it crucial for applicants to navigate the intricacies with precision and, if needed, seek professional assistance for a successful outcome.

The cost to trademark a brand in China can vary based on several factors, including the number of classes and sub-classes of goods or services you want to register, whether you engage legal services, and if any additional procedures are required. Here are some general cost considerations:

 Official Filing Fees: The official fees for filing a trademark application in China are determined by the number of classes your goods or services fall under.

 Legal and Professional Fees: Many businesses choose to work with legal professionals or trademark agents to navigate the registration process.

 Search and Clearance: Before filing, it’s advisable to conduct a trademark search to ensure that your desired brand is not already registered in China.

 Renewal Fees: Trademarks in China are initially valid for ten years. Renewal fees will apply if you choose to extend the registration beyond this period.

 Other Potential Costs: If there are any issues during the application process, such as objections or oppositions, addressing these matters may involve additional costs.