China Trademark Enforcement Principles
The main way to protect a China trademark is by perfecting and maximizing one’s rights in the mark, which usually occurs by registering it with the U.S. Patent and Trademark Office, and then by enforcing those rights against competitors, imitators, and would-be users in an effort to keep them as far away as possible from the property.
Enforcement, in turn, usually boils down to sending cease-and-desist letters to the wrongdoers in the hopes of obtaining voluntary compliance with your demands, under threat of suit; and if the wrongdoer doesn’t voluntarily comply, to carrying out the threat and commencing suit. In this respect, protection of one’s intellectual property rights is both binary and simple: either the wrongdoer voluntarily stops its bad behaviour in response to your pressure, or it doesn’t; and, if needed, you either escalate the dispute to court, or you don’t. There really aren’t any other legal options.
Generally valid for China, with a few minor changes. First, and most obviously is that you need to register your mark with the China Trademark Office, not the USPTO. Second, you need to analyze whether to register your mark in just English, just Chinese, or both. Third, though the bit about having to choose between pursuing and not pursuing escalation is true, China has other dispute resolution options in addition to a straight-up lawsuit.
Basic Principles of China Trademark Law
Trademark law is a creation of both state and federal law (and both statutory and common law). At the bottom, trademark rights arise through use, which means adding the mark to a good or product packaging (for goods) or by presenting the mark on websites or signs (for services) and selling the item to consumers. Registration is available through state governments and the U.S. Registration is not required, but it expands the geographically limited rights that automatically arise through use. There is a lot to say about trademark registration, but further discussion is outside the scope of this discussion.
Protecting a brand commonly starts with choosing a brand. Protection has two facets, which you can think of in terms of both sides of a coin. You probably want to register your mark (or at least have that option), and you want to be able to enforce it in court. But you also want to choose a brand that won’t get you sued by another trademark owner. In other words, there are “offensive” considerations and “defensive” considerations.
- The opposed mark is identical or similar to the opponent’s trademark which is already registered with regards to the same or similar goods or services.
The procedure to register for a trademark takes around 16-24 months, be assure to begin the process well in advance. If you’re not a resident in China or have a foreign company, you’re obliged to work with a local trademark agent who will help you to register the trademark.
If you are also keen to register your trademark and give your business a competitive edge, give us a call at +91 8750008585 and our trademark experts will guide you. For more information, please visit our website TrademarkCart.
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