China trademark registration adopts the “First-to-File” principle, which grants a theoretically exclusive right of trademark use to the registrant who applies first, and provides the registrant a high degree of legal protection for its exclusive use in China. Below is a brief introduction to this system.
China’s “First-to-File” Registration System
In order for a foreign business to assert trademark rights in China, the first and most important step to take is to register the specific trademark. China recognizes a “first-to-file” system, which generally means that the trademark right belongs to the first person who properly registers the mark in China. Unlike the United States, in China there is no prior-use or intent-to-use requirement needed before registering a trademark nor are common law rights recognized. In other words, any party, whether or not it intends to use the mark in the stream of commerce, may register a trademark in China.
Additionally, unless the mark is well-known, China law provides little protection for U.S. companies that properly register their marks in the U.S. and use their marks or brand in commerce for a significant period of time, yet fail to properly register their trademarks in China. It is not uncommon for a Chinese party to register a trademark because it anticipates that the U.S. owner of that trademark may one day use the trademark in China. In this way, the Chinese party positions itself for an infringement claim against the U.S. owner, seeking financial gain by way of a settlement that could include a license with royalties or transfer of the mark to the U.S. owner for a price.
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Importance of Early Registration
As previously mentioned, Chinese trademark law operates on a “First to File” system. That means that whomever first files a particular trademark in a particular category gets the rights. Conversely, U.S. trademark law awards rights to whomever first uses a particular trademark in a particular region.
Once a trademark is registered in China, the trademark registrant has the right to sue the domestic manufacturer or the U.S. owner of the OEM products, or both, for trademark infringement if the OEM products (or packaging) include the same or a similar mark, even if such products are not being sold in China. In such cases the trademark registrant has the right to seek monetary damages, injunctive relief and reasonable attorney fees.
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If you have further inquires, please do not hesitate to contact Tannet at anytime, anywhere by simply visiting Tannet’s website english.tannet-group.com, or calling Hong Kong hotline at 852-27826888 or China hotline at 86-755-82143422, or emailing to tannet-solution@hotmail.com. You are also welcome to visit our office situated in 16/F, Taiyangdao Bldg 2020, Dongmen Rd South, Luohu, Shenzhen, China.
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