Well-known trademark in China refers to a mark which is widely known to the relevant section of the public and enjoys a relatively good reputation nationwide. the definition of a well-known trademark is given in the Provisions for the Establishment and Protection of Well-known Trademarks. It is a critical business asset which can be used and traded just like any other assets. As such, these critical business assets deserve the fullest and widest possible protection in order that mark owners may fully exploit the value of such well-known trademarks.
What are Factors that Determining Well-known Trademarks?
The following factors are the keys when determining the well-known trademarks:
(1) Time of registration: though theoretically unregistered well-known trademark is also possible, it is extremely rare in practice. It is generally considered that a well-known mark should be registered in China for at least two years prior to the filing date of the opposed or canceled mark.
(2) Length, geographic coverage and volume of use: It is generally considered that a well-known mark should be used in China for at least five years prior to the filing date of the opposed or canceled mark. Such use shall cover at least ten provinces, and the sales volume should be large based on specific industry.
(3) The degree of similarity between the subject mark and the opposed mark should be high.
(4) The designated goods/services of the two parties should be "dissimilar" according to the Chinese Classifications, but "connected", so that there is likelihood of "misleading"; only very well-known marks may enjoy the protection based on dilution.
How to Apply for Well-known Trademark?
(1) The enterprise (by commissioning others or by itself) reports to the administration of commerce and industry at the provincial level;
(2) The administration of commerce and industry at the provincial level reports review results to the Trademark Bureau under the State Administration of Commerce and Industry;
(3) The Trademark Bureau determines whether the trademark constitutes the well-known trademark.
Protection Offered By a Well-known Trademark
Well-known trademark is offered a broader scope of protection, which is not limited to the designated goods and services covered by the registration. It means that the protection for a well-known mark could be extended to the non-similar goods and services, even though, sometimes, the gap among the goods and services is large, the well-known mark would also be protected to prevent the possible dilution of the well-known mark. However, the extent of such extended scope may depend on the degree of the well-known status as well as the distinctiveness of the mark.
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