INTA Forges New Collaboration with Beijing Bar Association

INTA’s China Representative Office hosted its first joint policy dialogue with the Beijing Bar Association on July 10 in Beijing, China. The joint event, focusing on the expedited amendments to China’s Trademark Law, brought together more than 130 participants from the respective memberships of each organization for a productive discussion on hot-button issues.

Following the first round of the amendment process for the Trademark Law’s fifth amendment in February 2023, the existing draft of the legislation is currently being reviewed and deliberated within the Ministry of Justice (second round). INTA noted that the current draft seeks to balance the obligations of trademark use with the view of combating bad-faith trademark applications and trademark warehousing. In this context, the dialogue focused on key issues related to combating bad-faith trademark applications in administrative and civil proceedings, with a balanced approach of optimal examination practices.

Led by INTA’s Trademark Office Practice Committee—China Subcommittee Chair Mingming Yang (Wanhuida, China), the discussion covered the most critical concerns of INTA members, both within and outside China, including:

• The increasing number of rejections of applications and appeals for marks deemed inherently unregistrable. Specifically, Mr. Yang noted that the strict application of absolute ground examination—as evidenced by rejection rates of 66.3 percent for non-distinctive marks and 60.3 percent for misleading or confusing marks—has introduced unpredictability and compliance risks in enforcement practices at later stages. He advocated for the continued improvement of prosecution examinations and specifically referenced the stance outlined in the INTA Trademark Examination Guidelines: “The mark must be examined as a whole. The mark shouldn’t be dissected, and the individual elements which comprise the mark shouldn’t be examined separately.”
• Non-use cancellation examinations. Wang Yan, the Director of the China Trademark Office (CTMO), gave an updated overview of recent practice changes regarding non-use cancellation. Ms. Yan emphasized that the CTMO would implement a more flexible approach and procedure for examining non-use cancellation actions. However, she reiterated that applicants still need to submit preliminary evidentiary materials to initiate the proceeding.
• Civil liability to curb bad-faith trademark applications. Enforcement Committee member Michael Fu (Chang Tsi & Partners, China) explained that many courts across different regions have applied the Anti-Unfair Competition Law to hold bad-faith registrants liable for damages caused by malicious trademark applications and/or actions that disrupt the sale of genuine products. This includes orders requiring bad-faith registrants to withdraw their applications and registrations. Mr. Fu also cited INTA’s Recommended Procedures to Address Bad Faith Trademark Applications and Registrations, “Bad-faith filers should be required to reimburse rights holders for legal expenses and related costs incurred in combating bad-faith filings, and violations should be subject to remedies, including the payment of fines and damages, to serve as a meaningful deterrent to bad-aith filings.”

Through INTA’s policy dialogue mechanism, the two sides will collaboratively address prosecution practice changes that affect the validity of trademark protection in China.

INTA’s China Representative Office, based in Beijing, represents the Association’s 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 this jurisdiction. To learn more about INTA’s activities in China, please contact INTA Chief Representative for China Monica Su, and follow us on WeChat.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest.

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