Trademark opposition in China is a legal procedure to seek advice from the public on preliminarily approved trademarks, aiming at supervising the Trademark Office exercises its right impartially and publicly, and the relevant parties can have chances to claim their rights. Anyone who is unsatisfied with the preliminary examination for approval of the trademarks, can raise opposition within 3 months.
Current Trademark Opposition in China
The amendment to the trademark law which has been in force since May 1, 2014, has brought some relevant changes to the system of trademark opposition in China. In the view of the author, these changes, which are mostly of a restrictive nature, will help foreign companies to more carefully consider the use of opposition and determine whether there may be more effective legal tools to bring about a solution for their business, rather than a legal problem.
1. The amendment to the Trademark Law does not change the purpose and function of the opposition procedure.
2. Trademark oppositions can be raised to delay the commercial activities of trademark applicants whose goal is to profit through malicious registration.
3. To prevent a trademark applicant from violating a “trademark that is already in use and forms a relatively stable market order”, prior rights owners may choose to request invalidation immediately and directly after a target trademark is published, without raising an opposition.
4. Invalidation requests from opposing parties due to failure in opposition will not be restricted by the rule against double jeopardy. In other words, opposing parties may raise an opposition and request invalidation with exactly the same reasons and evidence.
Procedure for Trademark Opposition in China
In the event an objection is raised against a trademark published after preliminary examination, the Trademark Office shall consider the facts and grounds submitted by both the dissenting party and the person challenged, shall decide whether the registration is allowed within 12 months upon the expiration of announcement after investigation and verification, and shall notify the dissenting party and the person challenged in writing.
Where the Trademark Office decides to approve the opposed trademark registration (i.e. rejection of the opposition), it shall grant a certificate of trademark registration to the person challenged and publish the same. The dissenting party may then file a cancellation action before the Trademark Review and Adjudication Board according to Articles 44 and 45 of the Trademark Law.
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