A draft amendment to the PRC Trademark Law would do away with relative examination and recognize rights based exclusively on bona fide prior use. The first change would mean that the office would no longer examine new applications against conflicting prior rights so that the onus would now fall on trademark owners to keep the register free of overlapping unrelated third party rights by means of oppositions. The second change would result in China moving closer to the United States model, where a prior user could potentially trump a later applicant. While there is clearly some equity to this approach in that it may become harder for pirates to usurp a mark by winning out in foot race to the trademark office, it will also create some uncertainty as applicants will, to some extent, be at the mercy of unscrupulous opponents who may manufacture evidence of prior use for the purposes of winning priority contest.
Other changes will include facilitating the filing of multi-class applications, extending time frames for responding to official actions and filing oppositions, and doing away entirely with the obligation to record licenses. The new law is still at a preliminary stage and it remains to be seen how much actually makes it on the statue book.
Vol. 53, June 2010