April 19,2016

On Mar. 14, 2016, China Trademark Office announced that from the day the announcement was published, China Trademark Office will not examine whether the commodities or service applied on trademarks was applicable to the commodities approved on business. This announcement means the qualification for individual was relaxed again with years. What’s the background for this new rule? What’s the influence will be taken on? Those topics were widely concerned by most of obligees. This paper mainly organizes the change history of the natural person’s qualification for trademark application and tries to make a preliminary analysis and conclusion.

I. The change history and relevant basis concerning qualification of Chinese individual on trademark application

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II. An analysis of cause to limit natural person applying trademarks in the past
1. To forbid individual rush registered large trademarks with serious malice

After releasing individual applying trademarks in the amendment of China Trademark law of 2012, the application numbers has increasing grown and rush registration applications has become more serious. According to the statistic data, above 70% applicants are individuals, in which the applicants are mainly individuals and small & medium-sized enterprises。

2. Effectively reducing the workload of trademark application and examination, and avoiding waste of administration resources.

After limitation of individual applying trademarks, the number of application actually was controlled and backlog of trademark application were relieved.

III The analysis of a rereleasing individual’s qualification
1. The community questioned Whether The matters to be needed for Natural Person handling trademark registration application issued by China Trademark Office was reasonable and legal. The community thinks of this document originated from the interpretation of China Trademark Law, but only legislative interpretation or judicial interpretation can cause legal effects. This documents, neither a document deliberated by NPC, nor an interpretation from Supreme People’s Court, lack of legitimacy of procedures.

2. This document just aiming at limiting the qualification of Chinese individual not for companies applying trademarks beyond business scope and also for foreign natural persons including Hong Kong and Macao leading to serious inequality phenomenon which may be criticized by society.

3. In recent, traditional Administration and Commerce Management System will move from restriction to open, business system reforming of company registration is an absolute example.  Micro business occupying main space of Mobile internet has become a new business mode. Traditional individual industry and commerce management mode including trademark application mode has keep pace with the development of society. In recent times, Central government encourages people to start business and in this big background, rereleasing natural person’s qualification of trademark applying has gone on autopilot.

IV. In conclusion
According to the experience releasing individual’s applying qualification while amending China Trademark Law, there may not have plenty of applying numbers in a short time. 。We shall pay attention to the rush registration phenomenon closely and notify whether it will become worse. And then, whether the examination period will be effected again also to be concerned which leading reviewers may not complete the review work within stipulated period or review quality may be declined increasingly.
On the basis of the said analysis, we suggest that, as famous enterprises, need to intensify monitoring application of malicious trademark applying, and formulating strategies and planning to its trademark application so as to reserve enough time replying to the examination period may be extended. Certainly, releasing natural person’s qualification for trademark application may not be all disadvantages, such as companies can purchase trademarks rush registered by other party on individual’s name avoiding the opposed party claiming payment with high price.

 

Author: Shanghai BOB Intellectual Property Ltd.
Manager of IP Registration Dept., Lawyer: Qian Min
2016-04-19

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Individual businesses are referred to people with capability to business in according to stipulations provided by Regulations of Individual business and registered by Industry and Commerce Administration Department. According to the stipulations provided by Term 1, Article 2 of Regulations of Individual business, the people with capabilities shall make a registration in Industry and Commerce Management Department according to stipulations and engaged in business.
Individual partnership is referred to civil subject including more than two people providing funds, materials, technology, etc. and operating business together. All the people mentioned shall be natural person.

Lease holding rural household is referred to members including family or individual from working people collective economic organizations in the countryside, with the permission of law, contact the land or other property owned by collective or the state.

Article 4 of China Trademark Law in 2001: natural person, legal representative or other organs needing obtaining of trademark shall file trademark application with China Trademark Office for the service item to be provided.

The matters to be needed for Natural Person handling trademark registration application
According to the stipulations of Article 4 Trademark Law of PRC: the natural person needing obtaining of trademark right, shall file trademark application with China Trademark Office,  who engaged in producing, manufacturing, processing, selling goods or providing service . if the application, trademark registration handled on the name of the natural person other than file trademark application letter, trademark image according to relevant regulations, the following matters may also attract your attention:

1. Individual business parties can file application with the registration number in individual business license as the applicant’s name, the legal representative also can be deemed as the applicant. If the legal representative as the applicant, the copy of materials need to be submitted as follows :

(1) the individual certificate
(2)business license

2. Lease holding rural household can file trademark application in the name of the parties to the contract, copy of materials need to be submitted as follow:
(1) individual certificate
(2) leasing contract

3. The natural person approved to engage in  business activities can file trademark application on the name of operator registered on the registration documents issued by relevant administration organ. The copy of materials needed to be submitted as follows:

(1)Individual certificate of the operator
(2) Registration documents issued by relevant administration organ

4. Where any goods and service scope to be applied on any trademark shall be limited to the business scope approved on its business scope or relevant registration documents or to its agricultural product operated by the applicant himself.

5. As for the trademark registration application is not applicable to stipulations provided by Article 4 of China Trademark Law, Trademark Office will not approve and send written notice to the applicant.
Where the applicant provides false materials, Trademark Office will cancel this registered trademark.

6. To handle trademark transfer application, if the assignee is natural person, shall be handled according to the said matters.

China Trademark Office Feb. 6, 2007

Announcement regarding changing application qualification of natural Person by China Trademark Office

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This date was quoted from Report on analyzing of sale and purchase market  of registered trademark for natural person ( professional trademark person ) online

From the implementation of The matters to be needed for Natural Person handling trademark registration application in Feb, 2007, the number of trademark application is reduced from 766,000 in 2006 to 707,000 in 2007 and 699,000 million in 2000.

The date source from Reports of China Trademark Strategy Annual Development

In 2002 before the modification of the trademark law, trademark filings in an annual 200000 basic since 2002 to $100000 a year in growth, the number of filings after only 2 years to reach double.

Data source: website of China Trademark Office
http://sbj.saic.gov.cn/tjxx/200501/t20050101_55176.html