With 8 million trademark applications expected to be filed in China by the end of 2018, the country is the world's largest filer of trademarks and represents an important market for INTA's global membership. With this in mind, the Association is closely monitoring upcoming amendments to China's Trademark Law that could help to improve trademark practice and foster innovation.
On September 7, the Standing Committee of the 13th National People’s Congress (NPC, China’s Legislature) announced China’s Legislative Plan (the Plan) for the next five years, which is the full term of the NPC. The Plan includes 116 legislative items, broken down into three tiers, with a timeline and drafting authority for each piece of legislation. The five-year Plan is formulated against the backdrop of the objective set by China's President, Xi Jinping, to “build China into a modernized socialist country and well-off society,” featuring deepening reform and rule of law. The Plan covers areas reflecting innovation-driven economic development, well-being oriented social governance, government restructuring, national security, and property protection. Notably, the Trademark Law was not included in the five-year Plan, nor in the State Council Plan, meaning it may not be taken up until the next term (2023‒2025).
Current Status of China’s Trademark Law Reform
On April 2, the China Trademark Office (CTMO) officially announced the revision of the Chinese Trademark Law, calling for public comments on the consultation. It is the fourth revision to the Law since 2013. According to the Reform Plan (2018‒2020), the China National Intellectual Property Administration (CNIPA, previously the State Intellectual Property Office) is expected to submit the first draft of the amendment to the Ministry of Justice (MoJ, previously the Legislative Affairs Office of the State Council) by 2020. It will take another one to two years for more consultation and research before the MoJ’s next submission to the Standing Committee of the NPC. After taking the above-referenced three steps, the legislation may be expected to be adopted and come into effect. The revision will focus on issues including shortening trademark registration and opposition, emphasizing trademark use, tackling trademark stockpiling and piggybacking, and post-registration opposition.
Why China’s Trademark Law Revision Is Important
China is the world’s largest filer of trademarks, accounting for 58.2 percent of global filings. The CTMO received 5.74 million trademark applications in 2017 and is expecting 8 million applications in 2018. China has contributed over 80 percent of new global trademark grants. Increasingly, Chinese brands are included in world rankings, and the value of those brands are growing. Improving trademark practice in China through an amendment of the Trademark Law should foster more innovation in brands within China and also create a favorable trade and investment climate. A thorough and rapid amendment within a few years will benefit the public and all global brands.
Moreover, China’s macroeconomic situation also indicates strong progress. China has the world’s largest population, and consequently the world’s largest consumer market, at 1.379 billion. It stands as the world’s largest economy by purchasing power parity, and second in nominal economic weight, making up more than 15.9 percent of global gross national product, following closely behind the United States.
INTA’s Role in the Trademark Law Revision
In mid-March, INTA hosted a bad-faith registration policy dialogue with the China Trademark Association (CTA) in Beijing. China’s trademark policymakers, including the CTMO, the Trademark Review and Adjudication Board (TRAB), the Trademark Examination Center, as well as the Beijing Intellectual Property Court and Beijing Higher People’s Court, have all participated in the intensive discussion to address the systematic and widespread bad-faith trademark application issue in China.
Before the deadline of the Trademark Law consultation in July, INTA collated suggestions from members and submitted the comments for consideration to the CTMO. The consolidated comments cover key issues such as: tackling bad faith; improving trademark office practice; anticounterfeiting measures; emphasis on trademark use; well-known marks; trademark agency discipline; relative grounds examination; cross-examination of evidence in opposition and non-use cancellation proceedings; and civil liability imposed upon bad-faith applicants to compensate brand owners.
INTA will play a leading role in shaping China’s next trademark law amendment. This will include strong provisions against bad-faith trademark registrations, stronger enforcement provisions, and setting the framework for higher quality examination and fair treatment of foreign trademark owners.
INTA will step up collaboration with the Chinese government’s trademark authorities to advocate for a more effective and efficient trademark regime by organizing a series of policy dialogues. INTA will work with think tanks, academia, research institutes, and industry associations to push forward the unification of criteria between administrative authorities such as the CTMO and the Trademark Review and Adjudication Board and the judiciary.
To make a positive global impact, INTA will need to start immediately to build a research program to provide policymakers with an objective and influential background supporting INTA views, such as on bad-faith registration.
Closely related to the research program will be a communications campaign to inform INTA members and committees of the important role INTA is playing in this amendment on behalf of brand owners and to get feedback.
INTA’s China Representative Office based in Shanghai represents the Association’s 235 members in China. Working in collaboration with staff at INTA’s headquarters in New York City, the China Representative Office leads the Association’s policy, membership, marketing, and communications initiatives in these jurisdictions. To learn more about INTA’s activities in China, please contact INTA Representative Officer, Shanghai, Monica Su at firstname.lastname@example.org.
Although every effort has been made to verify the accuracy of items in the INTA Bulletin, readers are urged to check independently on matters of specific concern or interest. Law & Practice updates are published without comment from INTA except where it has taken an official position.
© 2018 International Trademark Association