Latest Draft Amendments of Chinese Trademark Law for NPC Review
On 26 June 2013, a further revision of the Draft Amendments of the Chinese Trademark Law was submitted to the Standing Committee of the National People’s Congress (NPC), China's top legislative body, for deliberation.
Some key changes in this second draft as compared to the first draft for review by NPC are:
- Identification and exploitation of well-known trademarks
In the first draft, provisions that read "recognition of the well-knownness of trademarks shall be conducted at the request of an interested party and shall serve as the fact necessary for the adjudication of a trademark case" are proposed to be added to Article 14 of current Chinese Trademark Law.
In this second draft, it is specified that the authorities for establishment of well-known marks are: the Chinese Trademark Office (CTMO), the Trademark Review and Adjudication Board (TRAB), and the courts designated by the Supreme People's Court of China.
The second draft further provides that the establishment of well-known marks shall follow the principle of "passive identification on case basis", that is, recognition of well-known marks shall be conducted by the competent authorities only at the request of a trademark holder upon the occurrence of disputes over trademark rights.
Furthermore, the second draft forbids the use of the titles of well-known marks on products, product packages, advertisement, exhibition or other promotional activities, so as to avoid abuses of the titles or the process of acquiring the titles itself to pursue self-interest of enhancing recognition for one's products.
- Removal of provision for single colours as registrable item
The current Chinese Trademark Law stipulates that trademarks shall be in the form of words, devices, letters, numerals, three dimensional symbols, or combinations of colours. Although the first draft introduces single colours as a registrable trademark element, the second draft has, however, removed that provision.
- Establishment of trademark agency blacklist system
The second draft intends to create a trademark agency blacklist system, and provides that CTMO and TRAB may refuse applications and requests filed by trademark agencies that violated the law and did not act in good faith in a serious manner, and announce such decisions to the public.
- Specification of time for processing trademark applications
The second draft specifies the time needed for processing a trademark application filed with CTMO, which is 9 months for initial examination of the application, and 3 months for opposition after publication of the trademark.
- Increase of statutory trademark infringement damages
The first draft has proposed an increase of statutory damages for trademark infringement to "the range of RMB10,000 to RMB1 million" from "RMB10,000 to RMB500,000" under current Chinese Trademark Law. In the second draft further increase of the damages to the range of "RMB20,000 to RMB2 million" is proposed.
