Draft Revision to China’s Trademark Law

The China National Intellectual Property Administration (CNIPA) has published a draft revision to China’s Trademark Law and called for comments from the public. In this post and others that will follow, we will look at the most significant proposed revisions and consider how they might impact foreign businesses. Today we begin by looking at some proposed changes regarding the definition of what constitutes a trademark and the absolute grounds for the refusal of a trademark application.

At the moment, China’s Trademark Law defines trademarks as “any signs, including words, graphs, letters, numbers, three-dimensional symbols, color combinations, sound or any combination thereof, that are capable of distinguishing the goods of a natural person, legal person or other organization from those of others may be applied for registration as trademarks.” The draft revision of the law would see the addition of the term “other elements” (其他要素) to the list above, paving the way for the registration of other kinds of signs, such as scents and position marks.

Article 10 of the current law prohibits the registration of marks “detrimental to socialist ethics or customs, or having other unwholesome influences”. The draft revision would see language added to the relevant clause, to include marks that are harmful to the “excellent Chinese traditional culture” (中华优秀传统文化). Such a prohibition could be a problem for brands that incorporate certain Chinese cultural icons into their trademarks, even if there is no intention to offend.

Finally, the current Article 11 prohibits registering the “generic name, image, or model number” of a product. The draft revision would additionally prohibit registering the “technical term” (技术术语的) of a product, providing further clarity.

In future posts, we’ll be looking at other possible changes under the draft revision, including some that could see tougher measures against bad-faith registrations and protections for well-known trademarks.