CHINA Law and Practice Contributed by: Chuanhong Long, Bin Zhang, Cuicui Liang and Lei Fu, CCPIT Patent and Trademark Law Office
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- extendable. For international trade marks desig - nating China, the deadline for filing the opposi - tion is the last day of the third month after the trade mark’s publication by the WIPO, which is also non-extendable. Supplementary 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 file. 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 approxi - mately 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 mali - cious filing with no purpose of use, lack of dis - tinctiveness, being misleading as to the charac - teristics of the goods/services, 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
4.10 Refusal of Registration A trade mark will be refused by the CNIPA based on absolute grounds, such as 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 stipu - lated in Articles 4, 10, 11 and 12 of the Chinese Trademark Law, as follows. Article 4 states that natural persons, legal per - sons, or other organisations that need to obtain exclusive rights to their trade marks for their goods or services in production and business operations should apply to the CNIPA for trade mark registration. An application for the registra - tion of a malicious trade mark not for the pur - pose of use will be rejected. If the applicant is dissatisfied with the refusal, it may file a review with the Review Division. Dur - ing the process of review, the applicant may sub - mit arguments and evidence to prove the trade mark can be registered. 4.11 The Madrid System China participates in the Madrid system. There is no procedure for notification of an amendment to international trade mark regis - tration designating 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 descrip - tion. The applicant will have to re-designate the international registration into China.
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