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Monday, July 16, 2018

Counselling Aimed at the Registration of Trademark

In the course of its long history China has known periods of great artistic and technological expression and in this context it is possible to identify a cultural and institutional approach aimed at protecting the intellectual products of the labour of individuals with respect to their brand. In order to comply with the international commitments in recent years, China is aligning their instruments of protection of the rights of intellectual property (IP) to a higher standard of protection.

The only authority competent to grant registration of trademarks in China is the – Trademark Office - part of the State Administration for Industry and Commerce of the State Council - which is based in Beijing. Within the State Administration for Industry and Commerce there is also the - Committee on Revisions and Decisions Brands (TRAB) - an independent body – from the Trademark Office – that has the task of reviewing decisions taken by this office in the different stages of the procedure of Trademark Registration. The jurisdiction over violations on intellectual property rights related to the brand is the State Administration for Industry and Commerce and its peripheral administrations.

The trademark is a sign and main symbol of the company product. It must be something new, not be indefinite and untrue. The trademark allows to make different the company products from those of the competitor companies, and to identify the origin of a product/service.

The trademark can be formed by an image (figurative mark) or by a language phrase (denominative mark). The entrepreneur that holds the rights of a trademark has the right to use it in an exclusive way just like the firm and the sign. We must pinpoint that the trademark identifies the product and not the entrepreneur. In the Chinese system of trademark protection, the protection starts from the moment in which the mark is actually registered.

It is important to note that in China, for the registration of marks, it is adopted the criteria of the previous deposit (first to file) and it is generally not recognized any right to those who use unregistered trademarks.

To reduce the risk of appropriation by third parties of your brand it is essential to provide for registration of the same before it enters the Chinese market, preferably already by the time you consider the possibility of this happening, even if not in the short term. This also applies in the case where any goods produced in China are intended only for export. Recall that the ordinary times for the registration of a trademark in China are approximately 2-4 years.

WHY DEPOSITING A TRADEMARK

  • To create as added value.
  • To get the protection of the name of the Company or of the name of the product/service.
  • Because it is not necessary to use it immediately and for 5 years, you can stop the third parties.
  • For the precise date when the right starts.
  • Because you want to protect also similar fields addressing to the same type of customer.
  • To be able to control the markets.
  • To issues licences.

The “ Trademark Registration” may be required both by Chinese and foreign companies. The recordable marks can be:

  • Product trademarks.
  • Service trademarks.
  • Certification trademarks (the holder mustn’t have any commercial or industrial interest, direct to the subtended product/service).
  • Joint trademarks ( the holder can only be a legal institution that represent a group and able to carry out an activity different from that of its members).

The foreign trademarks are registered in observance of the principles of the Convention of Paris, that states a period of exclusive priority six-month long, starting from the date in which the registration is required in the Country of origin, provided that the holder declared that he wanted to extend the registration to other countries that agreed with the Convention.

In fact, mark protection expires if the same is not used in China for a period of three consecutive years, since the date of registration. The use of the mark may be proved either by direct use of the foreign owner and by the use of those who have had by the holder the right to use the said trademark in China, for example, by a user’s license. The "Registration of  Trademark" confers on its proprietor protection for a period of ten years, renewable once for a further period of similar duration. The use of the mark is essential for its protection in China.

Before the registration it is appropriate to define the version or versions of the mark that you want to protect and what products and services, or to which classes or, more properly, to which subclasses. It is also necessary to consider that the registration in China does not cover the Special Administrative Regions of Hong Kong and Macau as well as Taiwan and Singapore. Similarly, the records required even only for one or more of these areas will not be effective in China, then you must apply for registration even for those territories, through appropriate specific procedures, if you want your mark to be protected in those countries.

Trademark registration in China is a very slow process and is subject to a complex bureaucratic procedure. For adequate protection of the mark both for the name of the company and that of its assets, in China it is always good to register it and use it, whether verbal or mixed, not only in Latin characters but also in Chinese characters, traditional or simplified, depending on the territory.

This logic will allow for the effective protection and the best use of the trademark and is to be considered necessary as a strategic factor. It not only allows a better approach to the market and faster access to local consumers, but also prevents third parties from taking advantage of the corresponding version in Chinese characters, registering it in your name.

The knowledge of the procedures is essential, so the intervention of a professional man is advisable if not necessary in order not to fall into treacherous mistakes that might compromise the defence of the trademark as well as burden on the expenses of validation. Bright Business Consulting LLP is the suitable partner for “Warranty & Assistance”  with skilled staff, in all the steps leading to the validation of the trademark in China.

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