Legislation
What is the primary law governing trademarks in your jurisdiction?
The Trademark Law of the People’s Republic of China (the Trademark Law) is the primary law governing trademarks in China. The Trademark Law was published in 1982, and revised four times in 1993, 2001, 2013 and 2019.
The most recently revision of the Trademark Law made on 23 April 2019 entered in force on 1 November 2019. Six articles of the Trademark Law were amended in the new revision mainly for three purposes.
First, article 4 additionally states that malicious trademark registration without intended use shall be rejected. This provision will apply to the examination of registration, opposition and invalidation.
Second, article 19 is to further regulate the trademark agencies' behaviour, that is, the trademark agencies shall not accept the entrustment if they know or should know that the client has exhibited malicious registration behaviour. Once found out, they shall be investigated for responsibility according to law.
Third, there are new rules for punishment of applicants and trademark agencies that apply for trademark registration and file litigation maliciously.
In addition to the Trademark Law, Anti-Unfair Competition Law of the People’s Republic of China gives certain protections to unregistered trademarks if the logos enjoy a certain influence through long-term use in China.
Agencies
Which agency is responsible for the grant and registration of pharmaceutical trademarks?
The China National Intellectual Property Administration (CNIPA) is responsible for the registration and administration of trademarks in China, including pharmaceutical trademarks.
Regulators
What are the relevant national and international regulatory bodies and requirements that need to be considered when clearing a pharmaceutical trademark?
The regulatory body that most needs to be considered is the CNIPA.
As for the requirements when clearing a pharmaceutical trademark, the following applies:
First, the pharmaceutical trademark shall be inherently registrable to function as a trademark to distinguish the source of the goods or services. It should not violate article 10 of the Trademark Law, which mainly regulates whether the mark could be used as a trademark, or articles 11 and 12, which mainly regulate whether the mark is sufficiently distinctive to function as a trademark to distinguish the sources of the goods or services so that it is registrable as a trademark.
Second, the pharmaceutical trademark shall not be a similar trademark over same or similar goods or services compared with a prior trademark described under articles 30 and 31 of the Trademark Law. It is recommended to conduct a trademark search before filing to detect possible similar marks and take action in advance.
According to the Pharmaceutical Administration Law, the names of pharmaceuticals listed under the state pharmaceutical standards are generic names of pharmaceuticals and such generic names shall not be used as pharmaceutical trademarks.
Non-traditional trademarks
What non-traditional trademarks are available in your jurisdiction and how are they registered?
Generally, non-traditional trademarks in China include three-dimensional trademarks, colour combination trademarks and sound trademarks.
Similar to applications for traditional trademarks, the applicant shall file the application before the Trademark Office of the CNIPA.
Cannabis-derived products
Does your jurisdiction allow the registration of cannabis-derived products?
There is no explicit provision regarding the registration of cannabis-derived products in the Trademark Law.
However, the registration of products of cannabis, or services related to cannabis, will be rejected on the grounds that goods or services related to cannabis are not accepted in China for the purpose of trademark registration.
This article is published at https://www.lexology.com/gtdt/tool/workareas/report/pharmaceutical-trademarks/chapter/china
