The fourth amendment of the Trademark Law came into force on 1 November 2019. The revised Article 4 of the law now states that a "trademark filed in bad faith without intention to use shall be rejected". This modified version is also mentioned in Article 44.1 of the law, which provides that any trademark registered in violation of Article 4 and any trademark registered by fraudulent or unfair means will be declared invalid.
China has witnessed a number of significant developments in biotechnology patent prosecution in recent months. The amended Patent Examination Guidelines, which the China National Intellectual Property Administration (CNIPA) has been implementing since 1 November 2019, brought significant changes to the use of human embryonic stem cells. Further, in one of the few cases of its kind, the Supreme People's Court overturned a CNIPA re-examination decision in a patent administrative litigation.
In November 2019 the China National Intellectual Property Administration (CNIPA) stated that when a trademark embossed on a bottle cannot be removed, recyclers should ensure that they cover said trademark with another label to avoid the likelihood of confusion. The CNIPA added that affixing another label bearing another trademark on a bottle, leaving the original embossed trademark visible, is insufficient to avoid confusion.
When goods are manufactured in China by an original equipment manufacturer factory for export, the foreign buyer is not always the owner in China of the trademark that is affixed on the goods. But what if the trademark is registered in the name of a third party and such third party decides to sue the factory for infringement and stop the export of the goods? This is a long-debated question of which the courts have demonstrated different understandings.
A recent Supreme People's Court (SPC) decision clarified the requirements to cite the prior use defence under Article 59.3 of the Trademark Law. In this regard, the court stated that the only person eligible to cite this defence is the prior user themselves and that such use must have occurred prior to the registration application and the trademark owner's use of the registered trademark. Further, for the first time, the SPC made it clear that geographical scope is a key element in defining the original scope of use.