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Trademark

Any foreigner or foreign enterprise can apply for the registration of a trademark in China, however, the difference with Chinese or Chinese enterprise trademark registration procedure is that any foreigner or foreign enterprise intending to apply for the registration of a trademark shall entrust a trademark agency to act as his or her agent, and Chinese or Chinese enterprise can directly apply for the registration of a trademark for Trademark Bureau.

 

1. Regulations of Chinese Trademark Law about foreigners applying for registration of a trademark in China.

 

Article 17 Any foreigner or foreign enterprise intending to apply for the registration of a trademark in China shall file an application in accordance with any agreement concluded between the People's Republic of China and the country to which the applicant belongs, or according to the international treaty to which both countries are parties, or on the basis of the principles of reciprocity.

 

Article 18 Any foreigner or foreign enterprise intending to apply for the registration of a trademark or for any other matters concerning a trademark in China shall entrust any of such organizations as recognized to be qualified for trademark agency by the State to act as his or its agent.

 

2. Procedures for foreigners applying for registration of a trademark in China
 
 
Trademark registration procedure is introduced based on three different forms:
 
 
i) Foreigner or foreign enterprise entrusting trademark agency to act as his or her agent 
 
 
Chinese Trademark Law stipulates the principle of foreigner or foreign enterprise applying for trademark registration in China, mainly comprising three situations:
 
 
(i) According to the international treaty to which both countries are parties; 
 
 
Based on the stipulation of Paris Convention for the Protection of Industrial Property and Trade Related Intellectual Property Rights concerning foreigner or foreign enterprise applying for a trademark registration in China, citizens of contracting parties of above convention can enjoy national treatment, that is, foreigner or foreign enterprise applying for a trademark registration in China enjoys equal rights and equal treatment in registration requirements, application formalities, registration procedures and other aspects; and Chinese enjoy the same in other contracting parties.
 
 
(ii) In accordance with any agreement concluded between the People's Republic of China and the country to which the applicant belongs; 
 
 
If the country to which foreign or foreign enterprise belongs are not contracting parties of above international treaties, and bilateral agreement is concluded between the country to applicant belongs and China, trademark can be registered in accordance the agreement.
 
 
(iii) On the basis of the principles of reciprocity.
 
 
If the country to which foreign or foreign enterprise belongs are not contracting parties of above international treaties, and concludes no trademark protection agreement with China, citizens or enterprise of the country applying for trademark registration in China shall be on the bases of the principles of reciprocity, that is, if the country allows Chinese citizen or enterprise applying for trademark registration, China shall allow the same for the form, procedures and requirements.
 
 
Note: there are also some differences between foreigner or foreign enterprise entrusting trademark agency and Chinese citizen and enterprise in documents materials, such as written application for trademark registration and power of attorney, mainly comprising:
 
 
i) Power of attorney filed by foreigner or foreign enterprise shall identify the nationality of applicant, power of attorney and related notarization and certification procedure shall be on the basis of principles of reciprocity.
 
 
ii) Foreign enterprise applying for trademark registration in China shall file copies of registration certificate of the country or area to which applicant belongs, the copies of registration certificate of registered office in China or resident representative office registration certificate is invalid and it shall be attached with Chinese translation text, otherwise it is deemed to not have been submitted;
 
 
iii) Foreign natural person applying for trademark registration in China in person shall submit copy of passport and Foreigner's Permanent Residence Card, Foreigner's Residence License or Residence Permit for Foreigners issued by police, and period of validity is more than one year.
 
 
iv) Foreign applicant shall identify recipient in China responsible for receiving legal documents from trademark office and trademark review committee, and the address shall be detailed.
 
 
ii) Foreign or foreign enterprise requesting for territorial extension in accordance with Madrid Agreement.
 
 
China becomes a contracting party of Madrid Agreement Concerning the International Registration of Marks in Oct 04, 1989, based on the stipulation of Art 1(2), nationals of contracting parties can file international trademark application for Intellectual Property Bureau of The Convention Establishing the World Intellectual Property Organization through the registration authority of the country to which applicant belongs, and request for territorial extension, obtain the exclusive right and protection right of the trademark in other contracting countries. 
 
 
If foreigner or foreign enterprise requests for territorial extension and obtains trademark right through Madrid Agreement, there are some notes need to be paid attention to:
 
 
(i) The country to which foreigner or foreign enterprise belongs shall be a member of special allied nations in international trademark application;
 
 
(ii) It is stipulated in China that the obtained protection by international registration can be extended to China only through special application of trademark owner.
 
 
(iii) The class of goods & service of trademark registration requesting for territorial extension shall be in accordance with that of registered international trademark.
 
 
(iv) Madrid Agreement Concerning the International Registration of Marks is only applicable for those registered trademark after China becomes the contracting party, that is, only registered international trademark after Oct 04, 1989 can request for territorial extension in accordance with stipulations.
 
 
iii) Foreign or foreign enterprise applying for trademark registration in China in person.
 
 
Based on Art.5 and Art.18 of Trademark Law Implementing Regulations, any foreigner or foreign enterprise intending to apply for the registration of a trademark in China shall entrust trademark agency to act as his or its agent, it means those foreigner or foreign enterprise without habitual residence or place of business in China. That is, foreigner or foreign enterprise with habitual residence or place of business in China can apply for trademark registration in China in person, such as foreign resided in China, various foreign organizations in China, sino-foreign joint venture, exclusively foreign-owned enterprise and so on.
 
 
However, the procedure is not so simple if foreigner or foreign enterprise does not know related stipulations and regulations about trademark registration in China, so it is the best to entrust a trademark agency recognized to be qualified to act the agent.
 
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