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TRADE MARKS IN CHINA , THE NICE CLASSIFICATION OF GOODS / SERVICES
Chinese Trademark Application for Registration
  Types of Marks   Registrable Marks
  Unregistrable Marks   Classification
  Filing Requirement   Examination
  Amendment of Application   Registration/Duration/Renewal
  Madrid Registrations   Appeal
  Opposition   Recordation of Change of Name/Address/Assignment/License
 
Types of Marks

The term "trademark" used in the trademark law refers to marks used on goods and for services. Collective marks and certification marks are also registrable. 

Said collective marks mean signs,which are registered in the name of a group, an association or other organizations to be used by the members thereof in their commercial activities to indicate their membership of the organizations.
Said certification marks mean signs which are controlled by organizations capable of supervising certain goods or services and used by entities or individual persons outside the organization for their goods or services to certify the origin, material, mode of manufacture, quality or other characteristics of the goods or services.
Geographical indication can be registered as collective mark or certification mark.

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Registrable Marks

Registrable marks are any visually perceptible signs capable of distinguishing the goods or services, including words, devices, letters of an alphabet, numerals, three-dimensional signs, combinations of colours as well as the combination of such signs.

Registered trademarks shall be so distinctive as to be distinguishable, and shall not conflict with any prior right acquired by another person.

A registered mark is protected in respect of the goods/services registered, unless it is recognized as well-known trademark. In particular, any of the following acts shall be an infringement upon a registered mark:

- to use a trademark that is identical with or similar to a registered trademark in relation to identical or similar goods without the authorization of the owner of the registered trademark;

- to sell goods using a trademark that is identical with or similar to a registered trademark in relation to identical or similar goods without the authorization of the owner of the registered trademark;

- to counterfeit or make, without authorization, representations of a registered trademark of another person, or sell such representations;

- to change a registered trademark and put goods bearing the changed trademark on market without authorization of the owner of the registered trademark; or

- to cause, in other respects, prejudice to the exclusive right of another person to use a registered trademark.

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Unregistrable Marks

The following signs shall not be registered as - signs which consist exclusively of generic names, designs or models of the goods in respect of which the trademark is used trademarks;
- signs which consist exclusively of direct indications of the quality, primary raw materials, functions, use, weight, quantity or other characteristics of the goods in respect of which the trademark is used; or
- signs which are devoid of any distinctive character.
Signs mentioned in the preceding paragraphs may be registered as trademarks if they have acquired distinctive character through use and are capable of being readily identified and distinguished.
If a three-dimensional sign consists exclusively of the shape, which results from the nature of the goods themselves, the shape of goods, which is necessary to obtain a technical result, or the shape, which gives substantial value to the goods, it shall not be registered as a trademark.

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Classification

China adopts the International Classification of Goods and Services formulated pursuant to the Nice Convention on November 1, 1988.  Designated goods/services for a trademark application must be clear. One application can only cover one class of goods/services.

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Filing Requirement

It is important to note that each application shall cover only one trademark in one class. Each application must include the following documents:

- Application form;
- Power of Attorney, signed by the applicant. Notarization and legalization of the Power of Attorney is not required;
- Five prints of the label, not exceeding 10cm or being less than 5cm in length and breadth. If the mark is in color, one black and white label shall be submitted in addition to the five color prints;
- Priority document, if priority is claimed.

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Examination

Applications are examined as to the formality and substance. Examination to the formality will include the correctness of document and classification. Examination to the substance will include the registrability of the mark and possible conflict with prior rights. 

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Amendment of Application

Amendment is only possible when required by the Trademark Office. At the stage of substance examination, amendment may lead to the deletion of part of the mark or of the specification. 

Failure to make an amendment required by the Trademark Office may lead to the refusal of the application. 

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Registration/Duration/Renewal

A mark will become registered if within the period of three months following its publication there is no opposition filed against its registration, or the opposition filed is decided not justifiable.

A registration is valid for ten years starting from the date of registration and can be renewed indefinitely, each time for ten years.

Renewal applications shall be made within six months before the expiration date or, subject to payment of an additional fee, within six months after the expiration date. Each renewal application shall include an application for renewal of trademark registration and a Power of Attorney.

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Madrid Registrations

An international registration in China under the Madrid Agreement or Protocol can be effective by notifying the Madrid Union Office to add China to the list of registration countries for a particular mark. Under the Madrid Agreement or Protocol, the Trademark Office has the right to reject trademarks not conforming to the China Trademark Law.

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Appeal

An application that is refused by the Trademark Office may be appealed to the Trademark Review and Adjudication Board within fifteen days from receipt of the notification.

If any party is not satisfied with the decision made by the Trademark Review and Adjudication Board, he may institute a legal action in court within 30 days from receipt of the notification.

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Opposition

Any one can, within three months from the date of publication, oppose against a preliminarily approved trademark. The Trademark Office shall make a written decision, which can be appealed to the Trademark Review and Adjudication Board if any party is not satisfied with the decision. 

If any party is not satisfied with the decision made by the Trademark Review and Adjudication Board, he may institute a legal action in court within 30 days from receipt of the notification.

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Recordation of Change of Name/Address/Assignment/License

All changes of registrant including name and/or address shall be recorded with the Trademark Office. The recordal of change should be made for all the registered trademarks owned by the same registrant at the same time.

When applying for the assignment of a registered trademark, both the assignor and assignee shall jointly file an application to the Trademark Office. The assignee shall do the formalities required in applying for the assignment of a registered trademark. Assignment is effective only when recorded with the Trademark Office. All the same or similar registered trademarks on the same goods or similar goods of the same registrant should be assigned at the same time.

Assignment of pending trademark application is also possible.

License contract is to be recorded with the Trademark Office within three months after the execution of such contract.

   

 

   

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