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How (Not) to Designate a Trademark in China
When I was a kid, I entertained myself by writing advertisements for products that didn’t exist. Like the wildly popular household cleaner “Kwik-Kleen.” (I know – it’s shocking that Madison Avenue never came calling.) Whenever I would write my fake ad copy, I would include the ™ designation after my brand name. I didn’t really understand what ® meant, but I knew that ™ was short for trademark and that was enough for me.
Now that I have a law degree and deal with trademarks on a daily basis, I understand that ® is used after a registered trademark, and that using this symbol on an unregistered mark (as I would happily have done for Kwik-Kleen) is illegal. I also understand that ™ does not have strict legal significance and can be used by anyone; it is merely an indication of the source of the goods in question. In other words, ™ is used to put people on notice of common law trademark use.
The above summary applies to trademark use in both the US and China, but with one key difference.
I have seen a number of brand names in China identified with the ™ mark. Unless these marks are the subject of pending trademark applications, such usage is incredibly foolhardy. China is a civil law country and does not recognize common law rights. Designating a brand name with ™ doesn’t put people on notice of your common law rights. Rather, it puts trademark squatters on notice that you have a brand name that you consider valuable and haven’t protected yet.
Is that really the message you want to be sending?
We will be discussing the practical aspects of Chinese law and how it impacts business there. We will be telling you what works and what does not and what you as a businessperson can do to use the law to your advantage. Our aim is to assist businesses already in China or planning to go into China, not to break new ground in legal theory or policy.
Source: http://www.chinalawblog.com/2016/06/how-not-to-designate-a-trademark-in-china.html
