China Revolutionizes Its Trademark Law.

Although I only have a  translation of the Third Revision of the Chinese Trademark Law, the text looks very promising.  Use is now a major factor, and even enforcement actions require demonstration of use (in the prior 3 years).

Abstract: Trademark is used in the goods or services identified above and played the role of commodity source symbols. Trademarks and value of life lies in the actual use , is protected by trademark symbols and the link between goods or services , through the actual use of cohesion goodwill , trademark protection legitimacy also in this.

Trademarks are used for goods or services over and play a role in identifying sources of symbolic goods . Trademarks and value of life lies in the actual use , is protected by trademark symbols and the link between goods or services , through the actual use of cohesion goodwill , trademark protection legitimacy also in this. Compared to our current Trademark Law , Trademark Law after the third revision of the ” use” advocacy and protection to achieve a breakthrough .

 For the first time USE is given significance in parallel with registration

Third revised Trademark Law General Article 7 states: “Application for registration and use of trademarks shall follow the principle of good faith “, this is the first time our trademark “use” and “Application Registration” tied . The term “use ” includes both the use of registered trademarks , including unregistered trademarks are used , which advocates use of trademarks and trade should follow the honest habits , maintaining market order of fair competition has positive significance .

Clear definition of trademark

Third revised Trademark Law Trademark regression essence – Article 48 states: “The use of the trademarks mentioned in this Law refers to the trademark on goods, packages or containers of commodity trading instruments , or the trademarks used for advertising , exhibitions and other commercial activities, used to identify the source of goods act . ” The terms of use and carrier list , based on the emphasis on the ” used to identify the source of goods ” that is used on the trademark sense .

Strengthen the protection of unregistered trademarks of prior use

Third revised Trademark Law to further strengthen the protection of prior use , prohibits knowingly specific relationship to others and to be registered prior use of the trademark , that after the third revision of the Trademark Law article 15, paragraph states: “Just the same or similar goods to apply for registration of trademarks with others prior use unregistered trademarks identical or similar to , the applicant and the others outside the contract with the preceding paragraph , business relationship or other relationship which he knows there is someone else’s trademark the objection raised by others , shall not be registered . ”

Revocation of registered trademark for non- use

Third revised Trademark Law Article 49 , paragraph 2, Article 44 of China’s current trademark law were perfect, expressly excludes ” shall be imposed ” punishment , provides that ” no justification for three consecutive years does not use, and no unit or individual may apply to the Trademark Office shall cancel the registered trademark . ”

Genericness

Under current provisions of the first paragraph of Article 41 of the Trademark Law , registered trademarks, in the time of application for registration form using the generic name of goods , the Trademark Office may, acting Trademark Review and Adjudication Board or to apply for revocation of the registered trademark . For trademark registration does not constitute approval to use generic name of goods , but improper use of trademark registration trademark degradation becomes significant feature common name, or because others will as the name of a registered trade mark use, register lazy people exercise their rights , to become a generic name of a registered trademark , trademark law does not provide for the existing revocation . Third revised Trademark Law was amended in this , that second paragraph of Article 49 states: “trademark as its approved use of the generic name of goods or there is no justification for three consecutive years is not used , any unit or individual may apply to the Trademark Office shall cancel the registered trademark . ” This requirement helps prevent generic name has become a registered trademark claim rights to disrupt the market order of fair competition .

USE requirements for seeking damages

A trademark symbol is actually played a role , with registered independent , but depends on the use . When others to use such trademarks and trademarks of conflict , it is necessary not cause consumer confusion related to the actual loss caused thereby will not , and will not borrow to benefit the reputation of such marks , no damage that is, without compensation. China’s current trademark law and practice multi fails to distinguish between the actual use of a registered trademark or not, are applicable to damages , to a certain extent contributed to “hoarding trademark infringement wait ” phenomenon . Third revised Trademark Law was amended to this , Article 64 clearly states: “a registered trademark exclusive right to seek compensation , the accused infringer to register the trademark rights of people not to defend the use of a registered trademark , people court may require the registered trademark rights within the previous three years to provide actual evidence of use of the registered trademark . registered trademark can not prove actual use within the previous three years of the registered trademark , can not prove that the loss due to infringement by others , was charged with infringer is not liable . ”

Increased prior use rights system

Third revision of the Trademark Law after third paragraph of Article 59 states: ” trademark registration applications for trademark registration, the others have been in the same or similar goods in the trademark registration on the first people to use the same or similar to the registered trademark and have a certain influence of a trademark, registered trademark rights of people not entitled to prohibit such use within the scope of the original use continue to use the trademark, but may require additional proper distinction between its identity . ” The requirement of prior use based on the human and the interests of trademark holders to seek balance between giving the right to continue to use the prior use , to avoid the prohibited consequences caused by the use of unconscionability . Meanwhile, in order to pursue a registered trademark respecting the principles and protection of the interests of the registered person , attached on the right of prior use ” some impact ” the “original scope of use ” and “Additional proper distinction logo” strict conditions .

How Can I Help?

If you, or someone you know, need any help with Intellectual Property issues here or abroad, please contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney in Pasadena, California and I am a Rising Star as rated by Super Lawyers Magazine.  As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +

Norman

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