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China moves towards upgrading its Trademark Laws by introducing new trademark draft amendments



It is for the fifth time, the Trademark Laws of the People’s Republic of China are going to be subjected to another amendment after the previous updates done in 1993, 2001, 2013, and 2019. It is after 2019 that the China National Intellectual Property Administration (CNIPA) again decided to amend the laws by releasing a draft amendment after 13th January 2023. The draft legislation included details on the expansion of the 10 Chapters and the 101 Articles of it, where 23 new articles have been added and 6 new articles have been derived from the existing 45 articles that have been revised. '


As a part of the amendments, there were details on the mandatory transfer of hijacked registration and submission proof regarding the use of evidence every year from the date of registration. Also, with the submission of proof of evidence every five years from the date of registration there are new bold rules that are issued, following which the trademark owners need to familiarise themselves to make necessary preparations in advance.


Efforts against trademark hijackings

As a result of the revisions that have been made in this Draft, to tackle trademark hijackings, the draft provides details like;

  • Specific circumstances of Malicious Trademark Applications, Article 22 includes instances of lack of user intent, massive trademark hoarding and filling due to unfair means, which is a reason for re-affirmation of the judicial practice combatting trademark hijackings in the last three-to-five years.

  • The details related to Malicious Trademark Hijacking, as set out in Article 22 are subject to penalties including fines upto Yen 250,000 which is rough USD $40,000, which could result in confiscation of illegal gains under Article 67, which provides legal consequences of trademark hijacking could deter the professional trademark hijackers.

The China National Intellectual Property Administration (CNIPA) orders the transfer of hijacking trademark registration due to an invalid action upon the request of the petitioner, under Articles 45 and 47 of the Draft. This mechanism is a favourable sample for all the trademark owners whose prior mark was being presented by the hijackers, where the mechanisms are used for harmonizing trademark enforcement actions and prosecution actions as well as efficiently facilitating a trademark owner to tackle any hijacking registration at the same time.


How important are the requirements of the Trademark Law?

It has been for many years, China has been known as the first country in the world that does not require the use of any evidence to be submitted except for defending the use of cancellation. The draft attaches higher importance to the actual use of trademark laws shifting towards compromising the positions between the first file and the first use.

Some of the important provisions of the Draft can be understood like;

  • Using commitment for the required stage of application as stated in Article 5 which has fundamentally changed the current first-to-file systems to an extent mirrored the US trademark system.

  • Trademark restraints are required to file statements every five years after the trademarks are registered where the CNIPA would be inspecting the authenticity of the use of evidence to ask the registrants for supplementing the additional use of evidence.

However, the importance of trademarks laws becomes quite important to maintain a strong trademark portfolio that will be enforceable to monitor trademarks to help the business owners to look for possible conflicts, which might also include all those who may be diluting the trademarks. Thus the purpose of trademark laws is quite important to protect owners from losing income and sales by confusing similar marks between different laws that are designed to prevent rising confusion among consumers.


Sources referred-

 

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