China Issues Amended Implementing Regulations of the new Trademark Law
07 March 2014
China's new Trademark Law ("new law") will come into effect on May 1, 2014. For our earlier comments on the new law, please click here.
To implement the new law, new regulations have been drafted, the Draft Implementing Regulations ("Draft IR"), which have since been submitted to the Legislative Affairs Office of the State Council of China (LAO) for review. Last month the LAO issued a call for public comments.
The current Draft IR is subject to LAO's review; LAO is further entitled to make additional amendments based on public comments before submitting the amended draft to the State Council for a final review. The profession have been submitting comments, and we will keep you posted on further developments.
The Draft IR details the procedures of trademark applications and reviews, and clarifies the uncertainties or ambiguities under the new law. It introduces some new systems and also further regulates the practices of trademark agents in China.
- Of note, the Draft IR tries to streamline and clarify existing procedures. This is done through detailing e-filing provisions, introducing the "division of trademark applications" for partially refused applications, allowing for settlement negotiations, and specifying circumstances where non-use of a trade mark may be justified, etc.
- The Draft IR also attempts to facilitate enforcement of trademark infringement. Key efforts include providing for calculation of illegal turnover, specifying circumstances where a seller can claim innocent infringement, and stipulating how right holders assist on verification of suspected infringing products in AIC raid cases, etc.
- Finally, the Draft IR states that assignor and assignee are jointly responsible for recording the trademark assignment with the China Trademark Office (CTMO).