China Releases Draft Trademark Examination and Adjudication Guidelines
Published 30 September 2026
Xia Yu
On 28 September 2026, the China National Intellectual Property Administration (“CNIPA”) released the Trademark Examination and Adjudication Guidelines (Draft for Comment) (“Draft Guidelines”), with public comments open until 12 November. The Draft Guidelines are being issued against the background of the newly revised Trademark Law of the People’s Republic of China (“new Trademark Law”), which will take effect on 1 January 2027. The currently effective Trademark Examination and Adjudication Guidelines, which were formulated under the 2019 Trademark Law, will need to be updated to reflect the new legal framework. The Draft Guidelines are the first step in that process: they refine on a priority basis, the content directly related to the new Trademark Law, so that CNIPA’s examination and adjudication practice can be aligned with the new law before it takes effect.
The Trademark Examination and Adjudication Guidelines are operational norms for trademark authorization and right-confirmation examination and adjudication formulated by CNIPA. They serve the function of translating the principled provisions of the Trademark Law into uniform and predictable examination standards and constitute a core supporting implementing document of the Trademark Law. As one of the first supporting documents for the implementation of the new Trademark Law, the Draft Guidelines are both an “operating manual” for examination authorities applying the new law and a direct window for domestic and foreign practitioners to observe how the new Trademark Law will be understood and applied. This article intends to systematically analyze the core amendments of the Draft Guidelines from three dimensions—the systemic reconstruction of bad-faith registration regulation, the paradigm shift in well-known trademark protection, and the expansion of the scope of prior rights and interests protection—and to reveal their guiding value for trademark practice.
Main Amendments in the Draft Guidelines
According to the explanatory note simultaneously released by CNIPA, the amendments in the Draft Guidelines mainly involve the following nine parts:
1. New rules on formal and substantive examination of applications for dynamic mark trademarks. The Draft Guidelines expressly defines a dynamic mark trademark as “a sign presented in the time dimension through continuous movement, positional change, morphological transformation, etc., using visual elements such as words, graphics, letters, numerals, three-dimensional signs, and colors, and capable of distinguishing the source of goods or services”; refines formal examination rules for dynamic mark trademark applications, including the “three-in-one” sample requirement that video files, 3 to 9 static frames, and textual descriptions be mutually consistent; establishes a substantive examination logic that takes the complete dynamic process as the unit of judgment and protects the overall impression of the dynamic visual effect; and adds detailed provisions on examination of prohibited signs, distinctiveness, non-functionality, and identity and similarity for dynamic mark trademarks. The “three-in-one” requirement in the Draft Guidelines is a relatively strict formal rule. This helps ensure certainty in the examination of dynamic marks. At the same time, in practice, attention must also be paid to the similarity between core frames in the dynamic process and prior static trademarks of others—if a key frame of the dynamic mark is similar to a prior trademark of another, refusal may still be triggered.
2. Examination of prohibited signs. The Draft Guidelines adds strict examination rules for signs identical or similar to the name of the Communist Party of China, the Party flag, the Party emblem, etc. On the basis of the new Trademark Law, it further improves the criteria for determining deceptive trademarks and categorizes situations involving deceptive trademarks, so as to more effectively guide trademark examination and adjudication and guide trademark registration applications.
3. New non-functionality examination for color combination and sound marks. The Draft Guidelines states that functional color combination marks include color combinations resulting from the nature of the goods themselves, color combinations necessary to obtain a technical effect, and color combinations that give substantial value to the goods; functional sound marks include sounds resulting from the nature of the goods themselves, sounds necessary to obtain a technical effect, or sounds used to make the inherent function or purpose of the goods easier to achieve; and clarifies that non-functionality examination and distinctiveness examination are independent of each other. In practice, the order of examination is generally non-functionality first, then distinctiveness; non-functionality examination aims to prevent trademark rights from improperly extending into the field of technical function, while distinctiveness examination determines whether a sign can distinguish sources. The two are independently assessed and neither substitute for the other.
4. Examination rules relating to the bad-faith clause in Article 19 of the new Trademark Law. The Draft Guidelines improves the criteria for determining under paragraph 1 “not for the purpose of use and clearly exceeding normal production and business needs in applying for trademark registration”, and under paragraph 2 “applying for trademark registration by fraud or other improper means” and clarifies the circumstances and procedures for applying the two paragraphs.
5. Examination rules for well-known trademarks. The Draft Guidelines clarifies the applicable requirements of the relevant provisions on well-known trademarks in the new Trademark Law and refines the criteria for confirming well-known-related circumstances.
6. Examination rules for damage to prior lawful rights and interests and preemptive registration of trademarks prior used by others. The Draft Guidelines revises the examination and adjudication rules in Chapter 14 on damage to prior lawful rights and interests of others and Chapter 15 on preemptive registration of trademarks that others have used and that have a certain influence. It clarifies that “prior lawful rights and interests” are not limited to statutory rights and also include prior lawful rights and interests deserving protection other than rights or interests expressly provided by law, such as the right to name, right to personal name, portrait right, copyright, design patent right, geographical indication, and the name, packaging, and trade dress of goods or services with a certain influence; changes “preemptive registration by improper means” to “intentional preemptive registration”; and refines the factors for determining intent, including that the applicant of the disputed trademark and the prior trademark user have previously contacted each other regarding trademark licensing, trademark assignment, etc.
7. New chapter on suspension of examination. The Draft Guidelines states that suspension of examination and adjudication is based on the principle of necessity, lists specific circumstances for suspension, such as “where the cited trademark is in change or assignment proceedings and, after the change or assignment, no longer conflicts with the disputed trademark”, improves the specific rules for resuming examination and adjudication, clarifies the time limits and materials for applying for suspension, and grants examiners the authority to suspend ex officio on their own initiative. The addition of this chapter responds to the problems of wasted examination resources and procedural repetition caused by the unstable rights status of cited trademarks in practice and helps improve examination efficiency and procedural certainty.
8. Examination of cases for revocation of registered trademarks. The Draft Guidelines adds criteria for revoking a registered trademark for use in a manner that misleads the public, such as “use of the trademark in combination with the name of goods, advertising slogans, or the packaging and trade dress of goods, thereby causing the public to misunderstand and mistakenly purchase”, and an ex officio revocation procedure; it also improves the criteria for determining unauthorized alteration of a registered trademark, the name or address of the registrant, or other registered particulars. It should be noted that this revocation targets active use of a registered trademark “in a manner that misleads the public”, and is complementary in institutional function to revocation for non-use for three consecutive years, which targets passive non-use; together they improve the exit mechanism for registered trademarks.
9. Recordation of agencies. The Draft Guidelines adds the duty of diligence and due care, recordation review, and rules for cancellation of recordation.
Article 19 Bad-Faith Clause of the New Trademark Law: From “Subjective Bad Faith” to “Dual Subjective-Objective Elements”
The amendment to Article 19 of the new Trademark Law is not a textual adjustment but a reconstruction of the determination framework. Paragraph 1 provides that “where an application for trademark registration is not for the purpose of use and clearly exceeds normal production and business needs, it shall not be registered”, and paragraph 2 provides that “no one may apply for trademark registration by fraud or other improper means.” The former evolved from Article 4 of the current 2019 Trademark Law] and deletes the term “bad faith”; the latter moves the invalidation ground in the original Article 44 (1), forward to become a ground for refusal of registration. Combined with Article 36 of the new Trademark Law (any person may invoke Article 19 to file an opposition) and Article 54 (warning and a fine of up to RMB 100,000, approximately US$ 1,492), the regulation of bad-faith registration achieves full-process coverage of examination, opposition, invalidation, and punishment. Under the 2019 Trademark Law, “fraud or improper means” was mainly applied after the fact as an invalidation ground and was difficult to intercept directly at the examination and opposition stages; full-process application resolves this long-standing procedural gap.
The Draft Guidelines refines Article 19 of the new Trademark Law. First, it clarifies the dual-element structure of Article 19, paragraph 1: “not for the purpose of use” is the subjective element, and “clearly exceeding normal production and business needs” is the objective element. “Clearly exceeding normal production and business needs” means “the applicant’s trademark registration application activities clearly do not conform to the applicant’s production and business capacity, production and business scale, or actual production and business situation, and clearly do not conform to commercial practices or industry norms.” The factors to be considered newly include industry characteristics, commercial practices, and market access management measures, while retaining exceptions for defensive registration and preemptive filing in appropriate amounts for future business with realistic expectations. This raises the threshold for determining bad faith and responds to practitioners’ concerns about inadvertently harming good-faith business entities and reasonable defensive registrations.
Second, it expands the specific situations involving “fraud or other improper means” under Article 19 (2). Fraudulent means extend to forging or altering legal documents, seals, or signatures; improper means newly include repeatedly filing for well-known trademarks of the same entity, preemptively registering e-commerce names and domain names, and preemptively registering names of well-known persons and names of characters in works (except those that have entered the public domain). In addition, the evidentiary standard is adjusted from “where there is sufficient evidence to prove” to “where there is sufficient evidence to prove or where it may be reasonably inferred”. “May be reasonably inferred” reduces the evidentiary burden on administrative authorities. During deliberations on the draft amendment to the Trademark Law, some experts noted that the two elements “are highly subjective, arbitrary, and vaguely demarcated”; the Draft Guidelines’ introduction of the “may be reasonably inferred” standard is precisely a response to this practical difficulty, but the boundaries of its application remain to be further clarified through case-by-case examination.
Third, it clearly states that the subjective state is determined as of the time of filing the application for registration; subsequent filing activities are for reference only and are insufficient for direct determination; the mere fact that other trademarks under the applicant’s name have problems does not implicate the trademark at issue; assignment of the trademark does not affect application of the provision; and it emphasizes that, based on the concepts of proportionality between offense and punishment and restraint, this provision should be used prudently, and where other provisions can be applied, this paragraph should no longer be applied (except where bad faith is obvious).
Cross-Class Protection of Well-Known Trademarks No Longer Premised on Registration
Article 13(3) of the 2019 Trademark Law premised cross-class protection on “having been registered in China”; unregistered well-known trademarks could only rely on paragraph 2 to stop confusion in respect of identical or similar goods. Article 21 of the new Trademark Law deletes this “having been registered in China” limitation: where a trademark is a reproduction, imitation, or translation of another person’s well-known trademark in respect of goods that are not identical or similar, and is likely to mislead the public and cause damage to the interests of the holder of the well-known trademark, it shall not be registered and its use shall be prohibited—for the first time, unregistered well-known trademarks receive cross-class anti-dilution protection. In addition, the designation of the rights holder is changed from “registrant” to “holder”; this one-word change decouples well-known trademark protection from the form of registration. Correspondingly, Article 63 of the new Trademark Law newly provides for confirmation of well-known trademark status in cases involving trademark violations or unfair competition and uniformly changes “determination” to “confirmation”; the new Trademark Law also establishes a mechanism for confirming well-known status in overseas rights protection and retains the provision that bad-faith registration is not subject to the five-year invalidation limitation.
The above amendments have a profound international law background. From the perspective of international rules, the amendment is needed to implement high-standard international economic and trade rules such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership [ https://www.mfat.govt.nz/en/trade/free-trade-agreements/free-trade-agreements-in-force/cptpp/comprehensive-and-progressive-agreement-for-trans-pacific-partnership-text-and-resources ] (“CPTPP”); from the perspective of legal rationale, the legitimacy of well-known trademark protection lies in goodwill rather than the form of registration, which is consistent with the underlying logic of Article 6bis of the Paris Convention for the Protection of Industrial Property [ https://www.wipo.int/wipolex/en/text/288514 ] and Article 16(3) of the TRIPS Agreement [ https://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm ]; from the perspective of foreign legislative examples, the United States, the United Kingdom, and other countries also do not premise cross-class protection of unregistered well-known trademarks on registration. The corresponding adjustments in the Draft Guidelines return China’s cross-class protection of unregistered well-known trademarks to international consensus, constituting a significant institutional benefit for international brands not yet registered in China and domestic time-honored brands, and are compatible with the explosive growth of brand awareness in the digital economy era.
With respect to the above provisions of the new Trademark Law, the Draft Guidelines makes corresponding adjustments. First, in the chapter on well-known trademarks, “determination” is changed to “confirmation”, and “trademark registration department” is changed to “trademark administration department of the State Council”. Second, it clarifies that the party’s trademark must have been well known before the filing date of the disputed trademark, and an unregistered trademark in China must not violate the prohibitive provisions in Chapter II of the new Trademark Law. This provision is a necessary filtering mechanism to prevent unlawful signs from obtaining de facto legitimacy through well-known trademark protection. Third, the factors to be considered add the “manner and geographical scope” of trademark use; protected records are not limited to well-known trademark protection records and include evidence of having been found to have a certain reputation; and it reaffirms that confirmation of well-known status is not premised on registration in China or actual production and sales, and that promotional activities also constitute use.
Regulation of Prior Lawful Rights and Interests and Preemptive Registration: Expansion of Protected Subject Matter and Explicitation of Subjective Elements
Article 24 of the new Trademark Law makes two key changes, namely changing “prior rights” to “prior lawful rights and interests” and changing “preemptive registration by improper means” to “intentional preemptive registration”. The former is an expansion of protected subject matter, and the latter is an explicitation of the subjective element; together they point to the same legislative goal: to make the provision more usable and easier to apply.
The Draft Guidelines accordingly clarifies that “prior lawful rights and interests” are not limited to statutory rights and also include prior lawful rights and interests deserving protection beyond those provided by law; the “right in a trade name” is expanded to the “right to name”, covering the names of legal persons and unincorporated organizations and their trade names and abbreviations. In the preemptive registration part, a factor for determining “intent” is added at the forefront: “having previously contacted each other regarding trademark licensing, trademark assignment, etc.,” and a rebuttal provision is added—where the applicant can adduce evidence proving that it had no bad faith intent to take advantage of the goodwill of the prior trademark, no preemptive registration is constituted. The definition of “unregistered trademark” is also extended to expired trademarks whose registration term expired without renewal.
The expansion of “lawful rights and interests” reserves an interface for protection for new types of commercial interests such as names of characters in works, but the boundaries still depend on case-by-case examination. The replacement of “improper means” with “intent” achieves unification of subjective and objective elements. Prior contact regarding trademark licensing, trademark assignment, etc. may serve as an important factor in determining intent, but it must be comprehensively assessed in light of all evidence in the case and should not be simplified into a presumption of intent merely from the existence of contact. The rebuttal provision preserves an exit for good-faith applicants, reflecting a balance of interests.
Conclusion
The amendments in the Draft Guidelines are the supporting implementation of the new Trademark Law’s shift from “acquisition by registration” to “full-process regulation of registration, use, management, and protection”, and their institutional significance far exceeds technical adjustments at the operational level. The dual subjective-objective elements of the bad-faith clause and its full-process coverage of examination, opposition, invalidation, and punishment mark a shift in the governance of bad-faith trademark registration from “back-end punishment” to “front-end interception”; the “decoupling from registration” in cross-class protection of well-known trademarks substantively aligns China’s level of well-known trademark protection with high-standard international economic and trade rules such as the CPTPP, constituting a significant institutional benefit for international brands not yet registered in China and domestic time-honored brands; the expansion of protected subject matter for prior rights and interests and the explicitation of the subjective element for preemptive registration reserve an interface for protection for new types of commercial interests such as names of characters in works, while introducing a rebuttal mechanism in the determination of “intent”, reflecting refined consideration of the balance of interests.
From a practical perspective, the Draft Guidelines sends clear compliance signals: trademark applicants should prudently assess the match between the “purpose of use” and “business needs” of their registration activities, and avoid falling within the objective criterion of “clearly exceeding”; trademark agencies should establish internal screening mechanisms for bad-faith applications as soon as possible to respond to the dual constraints of administrative penalties under Article 54 and the agency’s duty of diligence and due care; and holders of well-known trademarks should incorporate the Draft Guidelines’ consideration factors regarding the “manner and geographical scope of use” into their routine evidence management, reserving a sufficient chain of evidence for future confirmation of well-known status.
The Trademark Examination and Adjudication Guidelines are operational norms for trademark authorization and right-confirmation examination and adjudication formulated by CNIPA. They serve the function of translating the principled provisions of the Trademark Law into uniform and predictable examination standards and constitute a core supporting implementing document of the Trademark Law. As one of the first supporting documents for the implementation of the new Trademark Law, the Draft Guidelines are both an “operating manual” for examination authorities applying the new law and a direct window for domestic and foreign practitioners to observe how the new Trademark Law will be understood and applied. This article intends to systematically analyze the core amendments of the Draft Guidelines from three dimensions—the systemic reconstruction of bad-faith registration regulation, the paradigm shift in well-known trademark protection, and the expansion of the scope of prior rights and interests protection—and to reveal their guiding value for trademark practice.
Main Amendments in the Draft Guidelines
According to the explanatory note simultaneously released by CNIPA, the amendments in the Draft Guidelines mainly involve the following nine parts:
1. New rules on formal and substantive examination of applications for dynamic mark trademarks. The Draft Guidelines expressly defines a dynamic mark trademark as “a sign presented in the time dimension through continuous movement, positional change, morphological transformation, etc., using visual elements such as words, graphics, letters, numerals, three-dimensional signs, and colors, and capable of distinguishing the source of goods or services”; refines formal examination rules for dynamic mark trademark applications, including the “three-in-one” sample requirement that video files, 3 to 9 static frames, and textual descriptions be mutually consistent; establishes a substantive examination logic that takes the complete dynamic process as the unit of judgment and protects the overall impression of the dynamic visual effect; and adds detailed provisions on examination of prohibited signs, distinctiveness, non-functionality, and identity and similarity for dynamic mark trademarks. The “three-in-one” requirement in the Draft Guidelines is a relatively strict formal rule. This helps ensure certainty in the examination of dynamic marks. At the same time, in practice, attention must also be paid to the similarity between core frames in the dynamic process and prior static trademarks of others—if a key frame of the dynamic mark is similar to a prior trademark of another, refusal may still be triggered.
2. Examination of prohibited signs. The Draft Guidelines adds strict examination rules for signs identical or similar to the name of the Communist Party of China, the Party flag, the Party emblem, etc. On the basis of the new Trademark Law, it further improves the criteria for determining deceptive trademarks and categorizes situations involving deceptive trademarks, so as to more effectively guide trademark examination and adjudication and guide trademark registration applications.
3. New non-functionality examination for color combination and sound marks. The Draft Guidelines states that functional color combination marks include color combinations resulting from the nature of the goods themselves, color combinations necessary to obtain a technical effect, and color combinations that give substantial value to the goods; functional sound marks include sounds resulting from the nature of the goods themselves, sounds necessary to obtain a technical effect, or sounds used to make the inherent function or purpose of the goods easier to achieve; and clarifies that non-functionality examination and distinctiveness examination are independent of each other. In practice, the order of examination is generally non-functionality first, then distinctiveness; non-functionality examination aims to prevent trademark rights from improperly extending into the field of technical function, while distinctiveness examination determines whether a sign can distinguish sources. The two are independently assessed and neither substitute for the other.
4. Examination rules relating to the bad-faith clause in Article 19 of the new Trademark Law. The Draft Guidelines improves the criteria for determining under paragraph 1 “not for the purpose of use and clearly exceeding normal production and business needs in applying for trademark registration”, and under paragraph 2 “applying for trademark registration by fraud or other improper means” and clarifies the circumstances and procedures for applying the two paragraphs.
5. Examination rules for well-known trademarks. The Draft Guidelines clarifies the applicable requirements of the relevant provisions on well-known trademarks in the new Trademark Law and refines the criteria for confirming well-known-related circumstances.
6. Examination rules for damage to prior lawful rights and interests and preemptive registration of trademarks prior used by others. The Draft Guidelines revises the examination and adjudication rules in Chapter 14 on damage to prior lawful rights and interests of others and Chapter 15 on preemptive registration of trademarks that others have used and that have a certain influence. It clarifies that “prior lawful rights and interests” are not limited to statutory rights and also include prior lawful rights and interests deserving protection other than rights or interests expressly provided by law, such as the right to name, right to personal name, portrait right, copyright, design patent right, geographical indication, and the name, packaging, and trade dress of goods or services with a certain influence; changes “preemptive registration by improper means” to “intentional preemptive registration”; and refines the factors for determining intent, including that the applicant of the disputed trademark and the prior trademark user have previously contacted each other regarding trademark licensing, trademark assignment, etc.
7. New chapter on suspension of examination. The Draft Guidelines states that suspension of examination and adjudication is based on the principle of necessity, lists specific circumstances for suspension, such as “where the cited trademark is in change or assignment proceedings and, after the change or assignment, no longer conflicts with the disputed trademark”, improves the specific rules for resuming examination and adjudication, clarifies the time limits and materials for applying for suspension, and grants examiners the authority to suspend ex officio on their own initiative. The addition of this chapter responds to the problems of wasted examination resources and procedural repetition caused by the unstable rights status of cited trademarks in practice and helps improve examination efficiency and procedural certainty.
8. Examination of cases for revocation of registered trademarks. The Draft Guidelines adds criteria for revoking a registered trademark for use in a manner that misleads the public, such as “use of the trademark in combination with the name of goods, advertising slogans, or the packaging and trade dress of goods, thereby causing the public to misunderstand and mistakenly purchase”, and an ex officio revocation procedure; it also improves the criteria for determining unauthorized alteration of a registered trademark, the name or address of the registrant, or other registered particulars. It should be noted that this revocation targets active use of a registered trademark “in a manner that misleads the public”, and is complementary in institutional function to revocation for non-use for three consecutive years, which targets passive non-use; together they improve the exit mechanism for registered trademarks.
9. Recordation of agencies. The Draft Guidelines adds the duty of diligence and due care, recordation review, and rules for cancellation of recordation.
Article 19 Bad-Faith Clause of the New Trademark Law: From “Subjective Bad Faith” to “Dual Subjective-Objective Elements”
The amendment to Article 19 of the new Trademark Law is not a textual adjustment but a reconstruction of the determination framework. Paragraph 1 provides that “where an application for trademark registration is not for the purpose of use and clearly exceeds normal production and business needs, it shall not be registered”, and paragraph 2 provides that “no one may apply for trademark registration by fraud or other improper means.” The former evolved from Article 4 of the current 2019 Trademark Law] and deletes the term “bad faith”; the latter moves the invalidation ground in the original Article 44 (1), forward to become a ground for refusal of registration. Combined with Article 36 of the new Trademark Law (any person may invoke Article 19 to file an opposition) and Article 54 (warning and a fine of up to RMB 100,000, approximately US$ 1,492), the regulation of bad-faith registration achieves full-process coverage of examination, opposition, invalidation, and punishment. Under the 2019 Trademark Law, “fraud or improper means” was mainly applied after the fact as an invalidation ground and was difficult to intercept directly at the examination and opposition stages; full-process application resolves this long-standing procedural gap.
The Draft Guidelines refines Article 19 of the new Trademark Law. First, it clarifies the dual-element structure of Article 19, paragraph 1: “not for the purpose of use” is the subjective element, and “clearly exceeding normal production and business needs” is the objective element. “Clearly exceeding normal production and business needs” means “the applicant’s trademark registration application activities clearly do not conform to the applicant’s production and business capacity, production and business scale, or actual production and business situation, and clearly do not conform to commercial practices or industry norms.” The factors to be considered newly include industry characteristics, commercial practices, and market access management measures, while retaining exceptions for defensive registration and preemptive filing in appropriate amounts for future business with realistic expectations. This raises the threshold for determining bad faith and responds to practitioners’ concerns about inadvertently harming good-faith business entities and reasonable defensive registrations.
Second, it expands the specific situations involving “fraud or other improper means” under Article 19 (2). Fraudulent means extend to forging or altering legal documents, seals, or signatures; improper means newly include repeatedly filing for well-known trademarks of the same entity, preemptively registering e-commerce names and domain names, and preemptively registering names of well-known persons and names of characters in works (except those that have entered the public domain). In addition, the evidentiary standard is adjusted from “where there is sufficient evidence to prove” to “where there is sufficient evidence to prove or where it may be reasonably inferred”. “May be reasonably inferred” reduces the evidentiary burden on administrative authorities. During deliberations on the draft amendment to the Trademark Law, some experts noted that the two elements “are highly subjective, arbitrary, and vaguely demarcated”; the Draft Guidelines’ introduction of the “may be reasonably inferred” standard is precisely a response to this practical difficulty, but the boundaries of its application remain to be further clarified through case-by-case examination.
Third, it clearly states that the subjective state is determined as of the time of filing the application for registration; subsequent filing activities are for reference only and are insufficient for direct determination; the mere fact that other trademarks under the applicant’s name have problems does not implicate the trademark at issue; assignment of the trademark does not affect application of the provision; and it emphasizes that, based on the concepts of proportionality between offense and punishment and restraint, this provision should be used prudently, and where other provisions can be applied, this paragraph should no longer be applied (except where bad faith is obvious).
Cross-Class Protection of Well-Known Trademarks No Longer Premised on Registration
Article 13(3) of the 2019 Trademark Law premised cross-class protection on “having been registered in China”; unregistered well-known trademarks could only rely on paragraph 2 to stop confusion in respect of identical or similar goods. Article 21 of the new Trademark Law deletes this “having been registered in China” limitation: where a trademark is a reproduction, imitation, or translation of another person’s well-known trademark in respect of goods that are not identical or similar, and is likely to mislead the public and cause damage to the interests of the holder of the well-known trademark, it shall not be registered and its use shall be prohibited—for the first time, unregistered well-known trademarks receive cross-class anti-dilution protection. In addition, the designation of the rights holder is changed from “registrant” to “holder”; this one-word change decouples well-known trademark protection from the form of registration. Correspondingly, Article 63 of the new Trademark Law newly provides for confirmation of well-known trademark status in cases involving trademark violations or unfair competition and uniformly changes “determination” to “confirmation”; the new Trademark Law also establishes a mechanism for confirming well-known status in overseas rights protection and retains the provision that bad-faith registration is not subject to the five-year invalidation limitation.
The above amendments have a profound international law background. From the perspective of international rules, the amendment is needed to implement high-standard international economic and trade rules such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership [ https://www.mfat.govt.nz/en/trade/free-trade-agreements/free-trade-agreements-in-force/cptpp/comprehensive-and-progressive-agreement-for-trans-pacific-partnership-text-and-resources ] (“CPTPP”); from the perspective of legal rationale, the legitimacy of well-known trademark protection lies in goodwill rather than the form of registration, which is consistent with the underlying logic of Article 6bis of the Paris Convention for the Protection of Industrial Property [ https://www.wipo.int/wipolex/en/text/288514 ] and Article 16(3) of the TRIPS Agreement [ https://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm ]; from the perspective of foreign legislative examples, the United States, the United Kingdom, and other countries also do not premise cross-class protection of unregistered well-known trademarks on registration. The corresponding adjustments in the Draft Guidelines return China’s cross-class protection of unregistered well-known trademarks to international consensus, constituting a significant institutional benefit for international brands not yet registered in China and domestic time-honored brands, and are compatible with the explosive growth of brand awareness in the digital economy era.
With respect to the above provisions of the new Trademark Law, the Draft Guidelines makes corresponding adjustments. First, in the chapter on well-known trademarks, “determination” is changed to “confirmation”, and “trademark registration department” is changed to “trademark administration department of the State Council”. Second, it clarifies that the party’s trademark must have been well known before the filing date of the disputed trademark, and an unregistered trademark in China must not violate the prohibitive provisions in Chapter II of the new Trademark Law. This provision is a necessary filtering mechanism to prevent unlawful signs from obtaining de facto legitimacy through well-known trademark protection. Third, the factors to be considered add the “manner and geographical scope” of trademark use; protected records are not limited to well-known trademark protection records and include evidence of having been found to have a certain reputation; and it reaffirms that confirmation of well-known status is not premised on registration in China or actual production and sales, and that promotional activities also constitute use.
Regulation of Prior Lawful Rights and Interests and Preemptive Registration: Expansion of Protected Subject Matter and Explicitation of Subjective Elements
Article 24 of the new Trademark Law makes two key changes, namely changing “prior rights” to “prior lawful rights and interests” and changing “preemptive registration by improper means” to “intentional preemptive registration”. The former is an expansion of protected subject matter, and the latter is an explicitation of the subjective element; together they point to the same legislative goal: to make the provision more usable and easier to apply.
The Draft Guidelines accordingly clarifies that “prior lawful rights and interests” are not limited to statutory rights and also include prior lawful rights and interests deserving protection beyond those provided by law; the “right in a trade name” is expanded to the “right to name”, covering the names of legal persons and unincorporated organizations and their trade names and abbreviations. In the preemptive registration part, a factor for determining “intent” is added at the forefront: “having previously contacted each other regarding trademark licensing, trademark assignment, etc.,” and a rebuttal provision is added—where the applicant can adduce evidence proving that it had no bad faith intent to take advantage of the goodwill of the prior trademark, no preemptive registration is constituted. The definition of “unregistered trademark” is also extended to expired trademarks whose registration term expired without renewal.
The expansion of “lawful rights and interests” reserves an interface for protection for new types of commercial interests such as names of characters in works, but the boundaries still depend on case-by-case examination. The replacement of “improper means” with “intent” achieves unification of subjective and objective elements. Prior contact regarding trademark licensing, trademark assignment, etc. may serve as an important factor in determining intent, but it must be comprehensively assessed in light of all evidence in the case and should not be simplified into a presumption of intent merely from the existence of contact. The rebuttal provision preserves an exit for good-faith applicants, reflecting a balance of interests.
Conclusion
The amendments in the Draft Guidelines are the supporting implementation of the new Trademark Law’s shift from “acquisition by registration” to “full-process regulation of registration, use, management, and protection”, and their institutional significance far exceeds technical adjustments at the operational level. The dual subjective-objective elements of the bad-faith clause and its full-process coverage of examination, opposition, invalidation, and punishment mark a shift in the governance of bad-faith trademark registration from “back-end punishment” to “front-end interception”; the “decoupling from registration” in cross-class protection of well-known trademarks substantively aligns China’s level of well-known trademark protection with high-standard international economic and trade rules such as the CPTPP, constituting a significant institutional benefit for international brands not yet registered in China and domestic time-honored brands; the expansion of protected subject matter for prior rights and interests and the explicitation of the subjective element for preemptive registration reserve an interface for protection for new types of commercial interests such as names of characters in works, while introducing a rebuttal mechanism in the determination of “intent”, reflecting refined consideration of the balance of interests.
From a practical perspective, the Draft Guidelines sends clear compliance signals: trademark applicants should prudently assess the match between the “purpose of use” and “business needs” of their registration activities, and avoid falling within the objective criterion of “clearly exceeding”; trademark agencies should establish internal screening mechanisms for bad-faith applications as soon as possible to respond to the dual constraints of administrative penalties under Article 54 and the agency’s duty of diligence and due care; and holders of well-known trademarks should incorporate the Draft Guidelines’ consideration factors regarding the “manner and geographical scope of use” into their routine evidence management, reserving a sufficient chain of evidence for future confirmation of well-known status.