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Changes to trademark oppositions in China
This is the second article in our series that looks at important changes to Chinese trademark laws taking effect in May 2014. The first article can be found here: Important changes to Chinese trademark laws.
There are three key changes that will effect the trademark opposition process under Chinese trademark law.
Recognition of prior rights
The first change is the recognition of a ‘prior right’ to a trademark. At present, under Chinese trademark law there is no basis to oppose a trademark application on the grounds that a mark is already being used but has not been registered. Once the new laws are implemented it will be possible to oppose a trademark application in instances where the applied-for mark is similar to an already established brand that has not been registered. It will be possible to claim a ‘prior right’ to the disputed trademark.
Standing to oppose
The second major change affects who can file an opposition and the circumstances in which they can do so. Only the owner of a prior right or an interested party can oppose an application on relative grounds. For oppositions based on absolute grounds, however, any person can file an opposition.
Another change affects the appeal rights arising from oppositions. Currently, parties can appeal decisions of the Trademark Office to the Trademark Review and Adjudication Board. If a party is dissatisfied with the decision of the TRAB, it can appeal to the People’s Court. Under the new trademark laws, in simple terms, an unsuccessful applicant can still appeal to the TRAB and, if again unsuccessful, to the Court. An opponent, however, who fails at the TRAB does not have a right of appeal to the Court. This means that an opponent must present its strongest case to the Trademark Office and TRAB and cannot rely on further appeals.
Did you know
Markwell has partnered with specialist intellectual property law firms in China (Beijing, Shanghai and Hong Kong) to ensure that clients who have manufacturing or sales operations in China receive the highest quality advice and representation.
Contact us if you would like more information on trade marks and brand protection in China.
Photo credit: Gary Tamin
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