CHINA Law and Practice Contributed by: Chuanhong Long, Bin Zhang, Cuicui Liang and Lei Fu, CCPIT Patent and Trademark Law Office
4.9 Incorrect Information in an Application If information is provided incorrectly (ie, incorrect name or address) due to negligence, the applicant can file a recordal of correction with the CNIPA to amend it. However, if the information provided for trade mark filing is provided by improper means, according to Article 44 of the Chinese Trademark Law, where a trade mark registration violates the provisions of Articles 4, 10, 11, 12 and 19 (4) of this law, or if the trade mark registration was acquired by fraud or any other improper means, the examination division of the CNIPA will invalidate the registration at issue. Any organisation or individual may request that the Review Division makes a ruling to invalidate such a registered trade mark. 4.10 Refusal of Registration A trade mark will be refused by the CNIPA based on absolute grounds, such as the following: • the descriptive character of the mark; • lack of distinctiveness, or a misleading character; • malicious filing with no intent to use; • an applicant acting in bad faith; • fraudulent material in the application; or • an immoral or offensive meaning. The absolute refusal grounds are mainly stipulated in Articles 4, 10, 11 and 12 of the Chinese Trademark Law, as follows. Article 4 states that natural persons, legal persons, or other organisations that need to obtain exclusive rights to their trade marks for their goods or services in production and business opera - tions should apply to the CNIPA for trade mark reg - istration. An application for the registration of a mali - cious trade mark not for the purpose of use will be rejected. If the applicant is dissatisfied with the refusal, it may file a review with the Review Division. During the pro - cess of review, the applicant may submit arguments and evidence to prove the trade mark can be regis - tered. 4.11 The Madrid System China participates in the Madrid system.
There is no procedure for notification of an amend - ment to international trade mark registration designat - ing China. If the goods/services are not accepted, the CNIPA will refuse the mark and there can be no review of a refusal based on non-acceptance of a goods/ services description. The applicant will have to re- designate the international registration into China. 5. Trade Mark Procedure for Inter Partes Proceedings 5.1 Timeframes for Filing an Opposition or Cancellation An opposition can be filed within three months after the publication of a trade mark. This is non-extenda - ble. For international trade marks designating China, the deadline for filing the opposition is the last day of the third month after the trade mark’s publication by the WIPO, which is also non-extendable. Supplemen - tary evidence can be filed within three months from the filing of opposition. If the revocation/cancellation is based on an absolute reason, there is no limitation to filing. If the revocation/ cancellation is based on relative reasons, it must be filed within five years from the date of registration. Where the registration has been made in bad faith, the owner of a well-known trade mark will not be bound by the five-year time limit. After filing the opposition/revocation, the CNIPA will issue an official filing receipt within approximately four months. It usually takes the CNIPA 12 months to make a decision. The term can be extended for another six months. There is no cooling-off period in China. 5.2 Legal Grounds for Filing an Opposition or Cancellation An opposition or revocation/cancellation can be filed based on absolute grounds, such as malicious filing with no purpose of use, lack of distinctiveness, being misleading as to the characteristics of the goods/ser - vices, having bad social influence, etc. The opposition or revocation can also be filed based on prior rights, such as a prior trade mark right, a well-known trade mark, prior-use right, prior copyright, prior trade name
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