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You may also feel interested in:Two Methods to Get Your Trademark in China
Vox Populi & Gay Rights

More than once, when our clients finally decided to register their brand in China, they found its been registered by someone else!
Can I claim it back by showing that we have owned and used the brand for a hundred years in our home country?, They asked.
Unfortunately, the answer is no.
China applies the first-to-file system in trademark application. It means the first applicant of a trademark will get it, despite the fact that someone else has used it for many years.
Is there any way to claim it back?
It depends.  If the current owner doesnt use it at all, you probably have two options to claim the brand.
Option 1:  You may try to buy it back.  A person may register someones brand in order to sell it someday to make money.  Thats called malicious squatting. The price could vary from several thousands to several million.
The good news is that the China Trademark Office (CTMO) in Beijing has adopted  stronger policies to curb squatting in trademark registration, such as Non-use cancellation .  So:
Option 2:  You may choose to file for Non-use cancellation based on the fact that the owner didnt use it for three consecutive years.  CTMO will ask the current owner to provide evidence to prove that they are using the brand. Otherwise, CTMO will cancel the brand within nine months.
However, its hard to tell if the current owner has used the trademark before filing the Non-use Cancellation. 
We should check the following aspects to decide:1.     If the current owner is an individual, the chance for him/her to use it properly is less;2.     If certain qualifications or permissions are needed to sell the commodity the trademark is applied to, or such business is not included in the business scope listed on the business license of current owner (if the owner is an entity);Canceling the brand doesnt guarantee that you can claim it. You have to be the first applicant after the cancellation.
Timing is very important at this point.
Usually, our routine is:1.     Apply for the trademark, and at the same time, file for Non-use cancellation.2.     The application will be rejected because it has been registered already.  Therefore; we apply for review of the application with the Trademark and Adjudication Board (TRAB).3.     If the TMO hasnt canceled the trademark, we apply for suspension of the review until the decision of Non-use Cancellation is made.
In this way, we can make sure our client is the first applicant once the Non-use Cancellation is done.However, the Non-use cancellation procedure could last more than three or four years or even longer, if the current owner decides to go through all of the proceedings.  Not to mention the fees involved.As you can see, both options are time consuming and expensive.So our repeated suggestion is: if you want to register your trademark in China, do it now!


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How to Claim Back My Brand in China?

Tap "LegalTips" to follow us

You may also feel interested in:Two Methods to Get Your Trademark in China
Vox Populi & Gay Rights

More than once, when our clients finally decided to register their brand in China, they found its been registered by someone else!
Can I claim it back by showing that we have owned and used the brand for a hundred years in our home country?, They asked.
Unfortunately, the answer is no.
China applies the first-to-file system in trademark application. It means the first applicant of a trademark will get it, despite the fact that someone else has used it for many years.
Is there any way to claim it back?
It depends.  If the current owner doesnt use it at all, you probably have two options to claim the brand.
Option 1:  You may try to buy it back.  A person may register someones brand in order to sell it someday to make money.  Thats called malicious squatting. The price could vary from several thousands to several million.
The good news is that the China Trademark Office (CTMO) in Beijing has adopted  stronger policies to curb squatting in trademark registration, such as Non-use cancellation .  So:
Option 2:  You may choose to file for Non-use cancellation based on the fact that the owner didnt use it for three consecutive years.  CTMO will ask the current owner to provide evidence to prove that they are using the brand. Otherwise, CTMO will cancel the brand within nine months.
However, its hard to tell if the current owner has used the trademark before filing the Non-use Cancellation. 
We should check the following aspects to decide:1.     If the current owner is an individual, the chance for him/her to use it properly is less;2.     If certain qualifications or permissions are needed to sell the commodity the trademark is applied to, or such business is not included in the business scope listed on the business license of current owner (if the owner is an entity);Canceling the brand doesnt guarantee that you can claim it. You have to be the first applicant after the cancellation.
Timing is very important at this point.
Usually, our routine is:1.     Apply for the trademark, and at the same time, file for Non-use cancellation.2.     The application will be rejected because it has been registered already.  Therefore; we apply for review of the application with the Trademark and Adjudication Board (TRAB).3.     If the TMO hasnt canceled the trademark, we apply for suspension of the review until the decision of Non-use Cancellation is made.
In this way, we can make sure our client is the first applicant once the Non-use Cancellation is done.However, the Non-use cancellation procedure could last more than three or four years or even longer, if the current owner decides to go through all of the proceedings.  Not to mention the fees involved.As you can see, both options are time consuming and expensive.So our repeated suggestion is: if you want to register your trademark in China, do it now!


Tap "Read More" to visit our website

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