CHINA Law and Practice Contributed by: Chuanhong Long, Bin Zhang, Cuicui Liang and Lei Fu, CCPIT Patent and Trademark Law Office
CCPIT Patent and Trademark Law Office 10/F, Ocean Plaza 158 Fuxingmennei Street Beijing 100031 China
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1. Trade Mark and Copyright Law 1.1 Governing Law Trade marks are governed by the Chinese Trademark Law, and copyright is governed by the Chinese Copy - right Law, which are both statutory laws. Common- law trade marks and copyright are not recognised. 1.2 Conventions and Treaties/Rights of Foreign IP Holders China is a signatory of the Madrid Agreement Con - cerning the International Registration of Marks, the Paris Convention for the Protection of Industrial Property, and the Convention Establishing the World Intellectual Property Organization, but these are not self-executing. In addition, China is a signatory of the Universal Copyright Convention and the Berne Convention. The Chinese Trademark Law governs the rights of foreign trade mark holders. The Chinese Copyright Law and related conventions and treaties govern the rights of foreign copyright holders. 2. Trade Mark Ownership, Protection and Rights 2.1 Types of Trade Marks In China’s legal system, there are different types of trade marks/service marks, such as unregistered marks, registered marks, certification marks and col - lective marks. According to Article 8 of the Chinese Trademark Law, any sign capable of distinguishing the goods or services of a natural person, legal person or any other organisation from those of other persons
– including words, devices, letters, numerals, three- dimensional signs, combinations of colours, sounds, etc, as well as a combination of such signs – is eligible for application for registration as a trade mark. Trade dress, company names and trade names are not stipulated types of trade marks in accordance with the Chinese Trademark Law, but they can also be protected under certain circumstances, mainly by the Anti-Unfair Competition Law. There are no specific marks that are protected in a different way to ordinary marks. Generally speaking, marks that are famous outside China but are not yet in use or registered in China are not protected. 2.2 Essential Elements of Trade Mark Protection Distinctiveness is the element required to qualify for trade mark protection. There are two kinds of distinc - tiveness: one is inherent distinctiveness and the other is acquired distinctiveness. To prove acquired distinc - tiveness, the applicant needs to file large amounts of evidence of use. The following factors are considered in an acquired distinctiveness analysis: • the manner, effect and role of the actual use of the sign, ie, whether it is used in the form of a trade mark;
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