Post-2019 Amended PRC Trademark Law Implementation Results Survey

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INTA Trademark Office Practices Committee – August 2020
Trademark Office Practices Committee (China Subcommittee) invites you to conduct this anonymous survey. No attribution will be made, nor identity be given in this survey. Your feedback matters to us and will play a key role in the coming revision of Chinese Trademark Law. Thank you for your time and inputs.
1.
Your occupation:
2.
According to your experience, after implementation of the new "Trademark Law" (NTL), how effective has the China National Intellectual Property Administration (CNIPA) been in curbing and cracking down on bad-faith preemptive trademarks?
3.
In your opinion, are CNIPA’s determination criteria in respect of NTL Article 4 "bad-faith trademark applications" and hoarding consistent and easily grasped?
  • (If selected, but no specific issue is stated, this will not affect the next question)
4.
NTL Article 68 provides "[f]or bad-faith applications to register trademarks, administrative penalties such as warnings and fines shall be given according to the circumstances; for trademark lawsuits filed in bad faith, the People's Courts shall impose penalties according to law". According to the "Provisions for Regulating Trademark Application and Registration Conduct", for applicants who apply for trademark registrations in bad faith,"[i]f there is illegal income, a fine of up to three times the illegal income of up to RMB 30,000 may be imposed; if there is no illegal income, a fine of less than RMB 10,000 may be imposed." In your opinion, how effective are such penalties?
5.
Have you encountered trademarks applied for by an enterprise in the normal course of business that were determined to be in violation of NTL Article 4 and rejected, resulting in "unintended harm"?
6.
In your opinion, what sorts of problems is the CNIPA’s application of Article 4 to curb bad-faith trademark applications not intended for use incapable of solving, or what obstacles will be encountered? Will there be unintended harms?
7.
According to the relevant laws and regulations of your country or region, how do trademark registration authorities curb bad-faith trademark applications not intended for use? What practices do you think the CNIPA could use for reference?
8.
After the amendment, the percentage of successful oppositions or invalidations is:
9.
Do you approve of the NTL Article 4’s new provisions that “bad-faith registration applications not intended for use should be rejected"? (Please select a score from 1-10: 1 is extremely disapprove, 10 is extremely approve)
  • Extremely disapprove
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  • Extremely approve
10.
How well do you approve of the six factors for consideration listed in “Provisions for Regulating Trademark Application and Registration Conduct” Article 8, effective on 1 December 2019, in determining "bad-faith registrations not intended for use" (please select a score from 1-10: 1 is extremely disapprove, 10 is extremely approve)?
1
10
A. number of applications the applicant has filed
B. applicant’s industry, operating conditions, etc.
C. situation of determination of applicant previous acts of bad-faith trademark registration or infringement
D. whether the applied-for mark is the same as or similar to another's trademark having a certain level of notoriety
E. whether the applied-for mark is the same as or similar to the name of a famous individual, company name, short name of an enterprise, or other commercial signs
F. other factors as determined by the TM registration department
11.
In practice, how satisfied are you with the provisions of the Trademark Law that regulate trademark agent misconduct? (please select a score from 1-10: 1 is extremely dissatisfied, 10 is extremely satisfied)
  • Extremely dissatisfied
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  • Extremely satisfied
12.
Do you think that a trademark agency has the right to refuse to submit an application for trademark registration on the grounds that your trademark text will easily cause harmful effects?
13.
Are there any laws and regulations governing trademark agency behavior in your country and, if so, which provisions most merit being considered for reference?
14.
What kinds of unbearable trademark agency behavior have you encountered? [okay to select more than one] 【Multiple】
15.
Have you ever encountered a trademark agency representing you and the conflicting party's trademark business at the same time? In view of this situation, do you think that trademark agencies need to introduce a conflict of interest review system before accepting entrustment of the matter?
16.
The Trademark Law was revised in 2019 to increase the amount of infringement compensation. What do you think of the crackdown’s effect? (please select a score from 1-10: 1 is very bad, 10 is very good)
  • Very bad
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  • Very good
17.
The 2019-Amended Trademark Law Article 63 provision on compensation ranges for willful infringement in serious circumstances changed the prior "one to three times" to "one to five times" and statutory damages are raised from RMB 3 million to RMB 5 million. Do you think that such increases in compensation for trademark infringement can effectively curb trademark infringement?
18.
Have you kept abreast of post-NTL Chinese court judgments?
21.
Have you kept abreast of post-NTL China Market Supervision Bureau (MSB) enforcement?
24.
The NTL empowers the court to order the destruction of materials and tools that are mainly used to manufacture counterfeit registered trademarks, or in special cases, to prohibit the foregoing materials and tools from entering commercial channels without compensation. Do you think this will encourage rights holders to go to court when they encounter infringement issues?
25.
Punitive compensation is included in the Civil Code. What punitive compensation provisions from your jurisdiction can be provided for reference?
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