The Trademark Law of the People’s Republic of China was enacted in 1982 and has since been amended twice (in 1993 and 2001). On December 28, 2012, the 30th session of the Standing Committee of the 11th National People’s Congress (“NPC”) reviewed the Amendments of Trademark Law (Draft) (the “Draft”), which was published on the same day for soliciting public comments. The deadline for submitting comments was January 31, 2013.
The NPC revision includes the requirement that applications are made in good-faith. The current Chinese Trademark Law does not explicitly mention good-faith, but does require that applications are not “detrimental to socialist ethics & customs, or having other unwholesome influences”. The NPC draft also includes a new section requiring trade mark agents to act in good faith, and would give trade mark attorney industry associations an obligation to strictly regulate their members.The Anti-Unfair Competition Law is referenced as providing protection against well-known trademarks being registered as company names. The NPC revision removes a provision on company name disputes included in earlier drafts of the Trademark Law amendments.
The amendment also allows unique sounds and colors to be trademarked in China and enable the registration of multiple categories of goods and services for the same mark through a single application. The maximum penalty for serious trademark infringements is doubled from the current 500,000 yuan (US$80,000) to 1 million yuan (US$160,000). The government is also looking to crack down on trademark squatting and malicious trademark registrations. The amendment offers protection for renowned trademarks, giving their owners the right to ban others from registering the mark or similar marks — even when such marks are not registered.In addition, the Draft strengthens the protection of an exclusive right to use trademarks, adopts punitive damages for malicious infringement on an exclusive right to use trademarks where serious circumstances are involved, and increases the maximum amount for statutory damages that a people’s court may determine under certain circumstances for infringement of an exclusive right to use trademarks.
The move comes amid a number of high-profile lawsuits involving Chinese companies and international brands in recent years. Earlier this year, Apple settled its dispute with Taiwan-based LCD manufacturer Proview over the use of the “iPad” trademark in China, while Michael Jordan remains embroiled in a legal battle with Fujian-based sports company “Qiaodan”, whose brand is a Chinese transliteration of the basketball legend’s name.