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Does China Use First-to-file Trademark Regime? - CTD 101 Series

Thu, 28 Jul 2022
Contributors: Meng Yu 余萌
Editor: C. J. Observer

Yes.

This post was first published in CJO GLOBAL, which is committed to providing consulting services in China-related cross-border trade risk management and debt collection. We will explain how debt collection works in China below. 

If you and another applicant both apply to register an identical or similar trademark, whoever files the application first shall own the trademark.

China and some European countries follow such a system.

In contrast, the United States and Canada adopt the first-to-use system for trademarks. Under this system, whoever uses a brand first can register it as their trademark.

Therefore, in China, if you want your brand to be registered as a trademark and thus be protected, you should register it as a trademark in China as early as possible.

Otherwise, once it is registered by someone else first (also called “trademark squat”), you will lose control of the brand in China.

Although China has taken some measures to curb trademark squatting, it takes money and time to get your squatted trademark back, and may not be successful every time.

Specifically, in accordance with China’s Trademark Law,

(1) Where applications are filed on different days, the first to apply has priority:

Where two or more applicants apply to register identical or similar trademarks for use on the same kind of goods or similar goods, the Trademark Office shall accept, conduct a preliminary examination of, give approval to and announce the trademark whose registration is applied for earlier than the rest.

(2) Where applications are filed on the same day, the first to use has priority:

Where two or more applicants file applications for trademark registration on the same day, the Trademark Office shall accept the trademark which is used earlier than the rest.

 

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Photo by Frame Harirak on Unsplash

Contributors: Meng Yu 余萌

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