What happens if two applicants file similar trademark applications on the same day? Who gets priority? How does the IP office deal with this situation? Article 31 of China Trademark Law lays out the provisions for same-day applications as such: “Where two or more applicants apply to register identical or similar trademarks for use on the same kind of goods or similar goods, the trademark office shall first conduct examination of, give approval to and announce the trademark whose registration is applied for earlier than the rest. Where the applications are filed on the same day, the trademark office shall first examine, give approval to and announce the trademark which is used earlier that the rest, and it shall reject the applications for registration of the other trademarks and shall not announce them.”
This looks like a lot of precautions and provisions for a rare occurrence – after all, what is the likelihood of two people filing the same or similar marks in one day? Although it might be rare in jurisdictions with a lower volume of applications, the odds are higher in China, where in 2019 the number of applications topped 7.8 million. That’s 21471 applications per day, every day of the year.
Resolving the issue of same-day registration is not difficult; the provisions for this situation are laid out in Article 19 of Regulations for Implementation of Trademark Law: “If two or more applicants apply on the same day for registration of identical or similar trademarks for the same kind of commodity or similar commodity, each applicant shall submit, within 30 days and as notified by the Trademark Office, proof of the date of the first use of its trademark. In case the trademarks were first used on the same day, or neither is yet in use, the applicants shall settle the matter by negotiations within 30 days after receiving the notice of the Trademark Office, and the agreement shall be submitted to the Trademark Office in writing. If they refuse to negotiate or if they fail to enter into any agreement, the Trademark Office shall inform them to decide the applicant by drawing lots, and the application of other applicants shall be rejected. Where any applicant has been notified by the Trademark Office but fails to draw lots, he shall be deemed as giving up his application, and the Trademark Office shall inform the applicant failing to draw lots in writing.”
Based on these provisions, applicants should focus on the opportunity if they encounter the issue of same-day application, namely:
Stage 1: Supplementary use evidence stage
If the examiner encounters a case filed on the same day, the examination committee will issue a "Notice for Submission of Use Evidence for Same Day Trademark Registration Application". The notice requires each applicant to submit evidence of the use of the applied trademark on conflicting goods within 30 days from the date of receipt of the notice. In particular, the notice emphasizes that “if the evidence of use is not provided or the evidence is invalid within the prescribed time limit, it shall be deemed as not used.”
Based on the notice, the applicant must: 1. Monitor the time limit for supplementary use evidence and must not delay the time limit for submitting the use evidence; 2. Pay attention to retaining the evidence materials for trademark use and submit it to the official within the legal time limit.
At this stage, if either of the conflicting parties provides earlier and effective evidence of use, its trademark will be approved for registration, and the trademarks of the others will be rejected.
Stage 2: Negotiation
If in stage 1, all parties to the conflict provide valid evidence of use, the official will issue a "Notice of Consultation for Same Day for Trademark Registration Application". The notice requires all applicants to negotiate and resolve conflicts on their own and report the written agreement to the official within 30 days from the date of receipt of the notice.
The parties to the conflict can fully consider each party’s industry, business model, sales target group, sales channel, etc. The best result of this negotiation is of course finding a mutually beneficial solution to the dispute. However, in our experience, there are relatively few cases of successful negotiation, mainly because 30 days is much too short for any meaningful negotiation.
Stage 3: Lottery
If no valid evidence of use has been provided by all parties and no written agreement has been reached or the written agreement is invalid, the official will issue the "Notice of Lottery for the Same Day of Trademark Registration Application", which will inform the detailed time, place, and required materials and precautions, of the lottery.
At this stage, it is basically a matter of luck. The trademark of the successful applicant will be preliminarily reviewed and announced. The applicant should pay special attention to: 1. Strictly monitor the lottery time 2. The notice especially points out that if one of the parties does not participate in the lottery, the trademark registration application will be deemed to have been abandoned.
Applicants who did not participate in the lottery in time will receive the official "Notice of Abandonment of the Same Day of Trademark Registration Application " issued by the government.
Receipt of this document means that your trademark application will be invalidated.
Don't panic when encountering an application on the same day. You can prepare corresponding evidence materials according to different procedures and official requirements to actively support your trademark registration. You must pay attention to all key components of the process. Although there are many solutions to the cases filed on the same day, we always recommended that our clients submit a trademark registration application in China as soon as trademark design is completed to avoid unnecessary effort and risk of trademark rejection.
Trademark registration doesn’t have to be complicated – Kangxin has handled many thousands of applications, and using our expertise we’ve built a tool to simplify the process for our clients.Kangxin IP Platform is an online tool that offers a full range of trademark services – from trademark search to online brand protection. A trademark registration application can be completed in four steps and will undergo review by one of our experienced trademark attorneys before being filed with the IP Office.