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Quick Question Friday, China Law Answers, Part XXVII
Because of this blog, our China lawyers get a fairly steady stream of China law questions from readers, mostly via emails but occasionally via blog comments as well. If we were to conduct research on all the questions we get asked and then comprehensively answer them, we would become overwhelmed. So what we usually do is provide a super fast general answer and, when it is easy to do so, a link or two to a blog post that may provide some additional guidance. We figure we might as well post some of these on here as well. On Fridays, like today.
One of the more common emails we get come from companies (not clients of our firm) that want to know what to do after having just succeeded in registering a trademark in China.
My response to them is usually something like the following:
The first thing I would do is go back to whomever you used to get the trademark and ask them this question. The second thing I would do is make sure that your trademark was actually registered because there have been many times where we have checked on that and it was not. See New Year’s Resolution: Check Your China Registrations and The Fake China Law Firm Scam. Then make sure that whatever trademark you have is the one you need and fully protects you. Many times we find that not enough has been done. The classic example is if you are selling a clock radio in China, you should secure a China trademark for both “clocks” and for “radios.” And if you just registered your name in English, you should consider registering it in Mandarin as well.
We also typically advise our clients on the following as well:
1. If you change your name or address or license your trademark to any third party to use this trademark or you assign this trademark, you must file an application with China’s Trademark Office to that effect. We are actually dealing with this issue right now for a company that we fear has lost a very valuable trademark by doing its licensing deal all wrong.
2. Your trademark will be valid for a period of ten years, starting from its official registration date. If you wish to renew the trademark, you may do so any time within six months before the expiration date. You would be shocked at how many companies do not now about their ability to renew their China trademarks — then again, maybe you wouldn’t be.
3. Your trademark will be presumptively valid throughout its term, but if your fail to use your trademark in commerce in China at least once every three years with respect to the covered goods, it is at risk of being cancelled for non-use. Again, many companies lose their trademarks for failing to realize this, and this is the first thing our China attorneys look for when a company comes to us complaining about how a Chinese company already registered “our” trademark for China. See China Trademarks: The First Thing To Do When Someone Already Has “Yours.”
4. Now that you have your trademark, monitor China for possible infringement of your mark, including third party trademark applications.
5. Register your trademark with Chinese Customs. The is an essential step if you believe counterfeit product may be coming from China, because Chinese Customs will not seize any allegedly counterfeit products unless you have a registered trademark in China AND have separately registered that trademark with China customs or with the customs office in your home country.
There you have it.
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/2016/09/quick-question-friday-china-law-answers-part-xxvii.html
