1. Differences between “R”/“注册商标”and “TM” marked on the Product

“R” is the initial letter of “Registration”, and it is an international label for the registered trademark. In China, “注册”and “注册商标” may also be used. “TM” is the abbreviation of “trademark”. It is a common label used to remind other that this marked device(s) or letter(s) are trademarks and do not use it(them) without the owner’s permit. In China, only the registered trademarks should be used exclusively by the owner, and only the registered trademark can be marked with “R” or “注/注册商标”.

2. the usage of the unregistered trademarks, registered trademarks and the trademarks during the application process for registration

Generally, regardless whether a trademark is used or not, once its registration application is approved by the trademark bureau in accord with the trademark laws, its applicant then acquires the exclusive rights to use this trademark, and any others is not allowed to use the same trademark on the same or similar commodities without the permit from the applicant. Only when a trademark is registered can the marks for registered trademark be used. Just like the situation for the unregistered trademarks, the trademarks under the registration application procedure are not allowed to use the marks for registered trademarks; the trademarks of this kind can not be falsely represented as being registered ones

3. Characters and graphics marks may not be used as trademarks

In accord with Article 10 of Trademark Laws of PRC, the following marks may not be used as trademarks:

1) those identical with or similar to the national name, national flag, national emblem, military flag or medals of the People''s Republic of China, as well as those identical with the names of the specific sites or the names and designs of the symbol buildings of the places where the central government agencies are located;

2) those identical with or similar to the national name, national flag, national emblem or military flag of any foreign country, except with the consent of the government of that country;

3) those identical with or similar to the name, flag, or emblem of any intergovernmental international organization, except with the consent of that organization and those unlikely to mislead the public;

4) those identical with or similar to the official marks, inspection marks that indicate the controlling or providing guarantee, except with authorization;

5) those identical with or similar to the name or symbol of the Red Cross or the Red Crescent;

6) those having the nature of discrimination against any nationality;

7) those constituting exaggerated advertising and are deceitful; and

8) those detrimental to socialist morality or customs, or having other harmful influences.

The place names of the administrative districts at the level of county or above or the foreign place names known by the public may not be used as trademarks. However, the place names that have other meanings and those used as part of a collective mark or certification mark are exceptional; the registered trademarks that use place names shall continue to be valid.

4. Trademarks may not be registered

In accord with Article 11 of Trademark Law of the PRC, the following marks may not be registered as trademarks:

1) those only having the generic names, designs and models of the commodities concerned;

2) those simply directly indicating the quality, main raw materials, functions, use, weight, quantity or other characteristics of the commodities concerned; and

3) those lacking distinctive characteristics.

If the marks listed in the preceding paragraph have, through usage, obtained distinctive characteristics and can be easily identified, they may be registered as trademarks.

In accord with Article 12 of Trademark Law of the PRC, in case of application for trademark registration on 3D marks, the registration shall not be granted if the figures are generated simply by the nature of the commodities, the commodity figures are needed for technical effects or the figures make the commodities become substantially valuable.

In accord with Article 13 of Trademark Law of the PRC, if a trademark, for which an application for registration is filed, of the same or similar commodity is the copy, imitation or translation of a well-known trademark of others which hasn't been registered in China, and misleads the public and leads to possible damage to the interests of the registrant of that well-known trademark, it shall not be registered and shall be prohibited from use; and

If a trademark, for which an application for registration is filed, of a different or dissimilar commodity is the copy, imitation or translation of a well-known trademark of others which has been registered in China, and misleads the public and leads to possible damage to the interests of the registrant of that well-known trademark, it shall not be registered and shall be prohibited from use.

5. Trademark search before the trademark registration application

The pre-application search is aimed to find out whether there is any filed/registered similar or identical marks which may bar your application. The pre-application research is an important but not a must procedure for the trademark registration. The search scopes will include the approved trademarks, the registered trademarks, or the trademarks which have passed the formality check. The results are only for the applicants’ reference, and they are not legally effective. But the trademark search of this kind will reduce the blind applications and will reduce the expense of the applicant.

6. Applicants for the trademark registration

In accord with the Trademark Law and its Implementing Rules, applicants for trademark registration could be natural persons, enterprises formed in accordance with the law, institutions, social organizations, individual industrialists, partnerships of individuals, or foreigners or foreign enterprises that conform to the provisions of the Trademark Law.

Attention: starting from March 2007, the natural persons who apply for trademark registration should also submit the relevant registration documents including the business license. The commodities or service for the applying trademarks should be limited within the business scope shown on the business license or any other relevant registered documents. Or they should be limited to the agricultural products and byproducts operated by the natural persons’ own selves.

7. Procedures for trademark registration application

1), the applicant shall first fill the application forms, clarifying the commodity and service class for the specific trademark.

2), the documents for the trademark registration application include 1 copy of Trademark Registration Application, 1 coy of POA, 1 copy of business license or any other similar registered documents approved by AIC, 5 copies of trademark device (for the colorful trademark with assigned colors, 5 copies of colorful samples and 1 copy of the black-and-white sample for the trademark shall be included.) And all the documents will be submitted to State Trademark Office of China.

3), after accepting the trademark registration applications, the trademark office will conduct formality check and substantive examination against the applications. Those are in conformity with the relevant provisions of the trademark law will be primarily approved and the trademark will be published. Those are not in conformity with the provisions will be rejected and the Rejection Notice will be delivered to the applicants. 

4), when the trademark office need the application documents be amended, it will deliver the Amendment Notice to the applicant. The applicant should amend the documents per the requirements of the trademark office and return back the application documents within 30 days after getting the Amendment Notice. If no amendments were made within 30 days, the trademark office would consider the applicant has abandoned the application.

5), if 2 or more applicants were filing the identical or similar trademark applications for the identical or similar commodities, only the earlier or earliest application would be primarily approved and published. If the identical or similar trademark applications happened on the same date, only the application of the applicant who has used the trademark early than others did would be primarily approved and published. Applications of others would be rejected.  

6), the trademark office would reject the applications which contain the trademarks which are not in conformity with the relevant provisions of trademark law, or identical with or similar to the others’ registered or primarily approved trademarks for the identical or similar commodities or services.

8. Time Span for the Trademark Registration Application

Generally, it takes 2~3 years to get the trademark registration certificate after filing the application. Now, it may take more time to get the certificate, because the increasing amounts of applications have been slowing down the check & examination speed of the trademark office.

9. Period of Validity of a Registered Trademark
The period of validity of a registered trademark shall be ten years, counted from the date of approval of the registration. Where the trademark registrant intends to continue to use the registered trademark beyond the expiration of the period of validity, an application for renewal of the registration shall be made within six months before the said expiration. The period of validity of each renewal of registration shall also be ten years.

10. Assignment of Registered Trademarks

 A registered trademark can be assigned, and the assignment shall be finished by the Trademark Office.

In assigning a registered trademark, the trademark registrant must perform the procedures for all its identical or similar trademarks registered for the same kind of goods or similar goods. If not, the Trademark Office shall reject the assignment. That will make sure that the identical or similar trademarks for the same kind of goods or similar goods would not be owned by different registrants.

The Trademark Office shall examine the assignment application of the registered trademarks, and approve the applications that conform to relevant provisions. Following the examination and approval, a corresponding certificate shall be issued to the assignee, and the assignment shall be published. The assignee then is the registrant of the assigned trademark, and the assignee should be entitled to the right to exclusive use of their trademarks and shall be protected by law.

11. Acts Deemed as an Infringement of a Registered Trademark
 As provided in Article 52 of the Trademark Law and Article 52 of Regulations for the Implementation of Trademark Law, Any of the following acts shall be an infringement of the exclusive right to use a registered trademark:

1. To use a trademark that is identical with or similar to a registered trademark in respect of the identical or similar goods without authorization from the trademark registrant;

2. To sell goods knowingly which contain a counterfeit trademark;

3. To counterfeit, or to make, without authorization, representations of a registered trademark of another person, or to sell such representations of a registered trademark as were counterfeited, or made without authorization;

4. To replace, without the consent of the trademark registrant, its or his registered trademark and market again the goods bearing the replaced trademark;

5. To use any signs which are identical or similar to another person’s registered trademark as the name of the goods or decoration of the goods on the same or similar goods, thus misleading the public;

6. To intentionally provide facilities such as storage, transport, mailing, concealing, etc. for the purpose of infringing another person’s exclusive right to use a registered trademark.

12. Protection of the Exclusive Right to Use a Registered trademark

Protection of the exclusive right to use a registered trademark can be achieved through both administrative means and judicial means. Where any party has committed any of such acts to infringe the exclusive right to use a registered trademark, the interested party can complain to local Administrations for Industry and Commerce at or above county level; it can also institute legal proceedings in the People's Court. When complaining to the AIC, the complaints shall be put in the written form usually, noting relevant information and evidence, such as the name, address of the infringer, the place where the infringement took place or was found, and relevant marks which are suspected to have infringed registered trademarks or stuff like photos and so on.

13.An enterprise name shall be protected in the rang of the administrative areas. Trademarks are used to distinguish the goods and services provided by different enterprises.

Before obtaining and using an enterprise name, this enterprise name shall be registered in accord with Provisions on Administration of Enterprise Name Registration. After it has been registered, the enterprise name shall be used, administrated and protected in accord with the Provisions. Meanwhile, trademarks are used and administrated by the Trademark Law. An enterprise has the right to decide whether to register its own trademark(s); and only the registered TM will be protected by the law. Once a trademark is registered, it shall be protected in any administrative area of China , and no one, without the permit from the registered trademark owner, is allowed to use the identical or similar trademarks the same or similar commodities.

An enterprise can have dozens of its trademarks be registered, but it will only have 1 enterprise name.

In order to promote the identification effect, the trademark and enterprise name are usually used together on the same products or the product packages.