CHINA Law and Practice Contributed by: Chuanhong Long, Bin Zhang, Cuicui Liang and Lei Fu, CCPIT Patent and Trademark Law Office
The official fee for filing an application for one trade mark in one class (within ten items of goods/services) is CNY270. If the number of items exceeds ten, there will be a CNY27 charge for each item over ten, in addition to the CNY 270. 4.5 Use in Commerce Prior to Registration In China, there is no requirement to use a trade mark before registration is issued. However, according to Article 4 of the Chinese Trademark Law, an application to register a malicious trade mark, not intended for use, will be rejected. Usu - ally, the CNIPA will judge whether the trade mark is not intended for use by the filing number. If the applicant files a large number of applications in one day, the CNIPA may issue an official notice. 4.6 Consideration of Prior Rights in Registration During the examination of the application for registration, the CNIPA considers prior trade mark applications. If the application is rejected by citing a similar trade mark, the new trade mark can only be registered if the cited mark is removed by filing a non-use cancellation or other action. Currently, the CNIPA is reluctant to accept a letter of consent if the two trade marks are very similar. The rejection can be overcome by the assignment of the cited mark. The CNIPA will very possibly reject an applica - tion if a trade mark is a copy of another well- known trade mark, or if it uses the names of celebrities, martyrs, etc. 4.7 Revocation, Change, Amendment or Correction of an Application During the process of registration, if the goods/ service description is non-standard, the CNIPA will issue an official notification and the applicant
can amend the description by filing a response to the notification. Otherwise, the applicant is only allowed to delete some goods/services, but not amend the description. If the name or address of the applicant is incor - rect, the applicant can file a recordal of correc - tion with the CNIPA to amend it. Material alterations are not allowed. 4.8 Dividing a Trade Mark Application It is possible to divide a trade mark application. However, a divisional application may only be filed after a mark has been partially refused by the CNIPA. The divisional application must be filed with the CNIPA within 15 days of receipt of the refusal notification. A divisional application is irrevocable. 4.9 Incorrect Information in an Application If information is provided incorrectly (ie, incor - rect 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 invali - date the registration at issue. Any organisation or individual may request that the Review Division makes a ruling to invalidate such a registered trade mark.
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