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“Faster than Ever” Examination Speed in China

26 October 2022
Peggy Zhu
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It used to take the China National Intellectual Property Administration (CNIPA) nearly 1 year to conduct its official examination of a new trade mark application. The process has been accelerating and the timeframe for examination has altered tremendously.

Nowadays, official examination of new trade mark applications generally takes 3-5 months, with some being completed in as little as 2 months. This means applicants can expect to be informed of the fate of their applications within only 2-5 months. Despite the much higher number of applications in China, this is faster than most other jurisdictions where there is substantive examination of trade mark applications.

In tandem with this development, the examination of other trade mark proceedings and processes have become faster, though the increase in the speed is far less than that for trade mark applications. Below are the current approximate timeframes for some major procedures:  

Action

Timeframe

Review of refusal

6-9 months

Opposition

8-12 months

Invalidation

8-12 months

Non-use cancellation

6-9 months


Brand owners can certainly benefit from this expedited examination. But it also brings some complications and difficulties. An obvious downside is that applicants now have less time to take steps to clear third party prior trade marks that have the potential to block their applications. New applications are often rejected and become invalid while efforts (such as opposition, non-use cancellation, invalidation) to remove potential obstacles remain ongoing.

Additional measures, which incur extra expenses, often have to be initiated with a view to prolonging the life of new applications. The following measures are usually adopted as delaying tactics:

Extra Measure

Pros and Cons

  1. Submit a written request along with the new trade mark application, explaining that there are pending actions against potential third party conflicting marks and requesting the CNIPA to hold off on examining the new application until the relevant actions are completed
  • It depends on examiners whether to comply with such a request.
  • In practice, the majority of such requests are denied or simply ignored.
  1. Include an unacceptable description of goods/service to invite a notice of amendment
  • 2-3 months may be added to the normal examination timeframe.
  • The added extra time is often not enough for actions against third party prior marks to conclude.
  1. Instruct a controllable third party to file a conflicting application on the same date when filing a trade mark application to trigger extra official proceedings
  • CNIPA will initiate extra proceedings to determine which of the two applications should take precedence. Applicants will be ordered to submit evidence of use of the respective marks. If no evidence is filed or the evidence submitted is of no probative value, CNIPA will notify the applicants to negotiate. If no settlement can be reached, CNIPA will decide which application should be retained by drawing lots.
  • 0.75-1.5 years may be added to the normal examination timeframe, which are usually sufficient for actions against third party prior marks to complete.
  • It is said the CNIPA has been aware of the unnatural increase in the contemporaneous filing of such conflicting applications and is considering implementing policies to prevent and punish “malicious conflicting applications filed on the same dates”. It is unclear how the CNIPA will define malicious filings.  So this tactic may soon become unviable.
  1. Keep re-filing new applications after the prior application lapses
  • Costly to continuously re-file applications.
  • There may be third party similar applications filed ahead of a re-filing, which will constitute a new obstacle to the re-filing.  


At present, the third measure appears to be the most effective method to tackle the timing issues that sometimes result from the expedited pace of examination. However, it seems that the CNIPA may soon introduce steps to restrict or even prohibit brand owners from utilizing this delaying tactic. It is hoped that the CNIPA could, at the same time, recognize the timing issues applicants sometimes face and introduce other measures to help resolve the present difficulties to enable brand owners to secure their rights through normal procedures.

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