China is revising its Trade Mark Law: Procedural rights are being tightened

The full text of the highly anticipated Draft Amendment to the Trade Mark Law of the People's Republic of China (hereinafter referred to as the "Draft") has been published and is now open for public comment. This marks a critical stage in the fifth revision of China's Trade Mark Law.

The content of the Draft largely aligns with analyses based on publicly available information from late last year. Its core objectives are to curb trade mark hoarding and malicious registrations at their source, emphasize the obligation of genuine trade mark use, extend the cross-class protection of well-known marks to include those not yet registered in China, and strengthen the authority of trade mark administrative bodies — such as explicitly granting them the power to proactively cancel registered trade marks used unlawfully.

Notably, the Draft proposes shortening the opposition period from three (3) months to two (2) months. This adjustment has sparked discussions from different perspectives. Supporters argue that this helps curb the space for malicious oppositions, benefiting industries requiring swift trade mark registration. Cautious voices, however, point out that enhancing procedural efficiency should not unduly compress the reasonable time rights holders need to gather evidence and prepare legal documents, suggesting that a two-month window could pose challenges for complex cases.

Following the Draft's publication, one procedural rule adjustment has drawn particular attention from rights holders and legal practitioners. The Draft stipulates that when courts hear administrative cases concerning trade mark rights confirmation and validity, they shall base their adjudication on the factual circumstances existing at the time the contested decision was issued. This aims to lock in the benchmark point for factual review, enhancing procedural stability and efficiency by reducing procedural back-and-forth caused by subsequent factual changes.

However, this rule will significantly impact the traditional strategies for rights holders to secure and protect their rights, effectively constituting a tightening of procedural rights:

1. The application of the “change of circumstances” principle will be restricted: After an administrative decision is issued but before litigation concludes, if the underlying rights status changes favorably (e.g., a cited prior mark blocking registration becomes invalid), under the new rule, the rights holder may struggle to overturn the original decision based on new facts. This increases uncertainty in outcomes, potentially prolonging the cycle of securing or enforcing rights and increasing costs.

2. The scope for “evidence reinforcement” during litigation will be reduced: Under the new rules, new evidence submitted during litigation to prove trademark use, market recognition, prior rights, or subjective intent may face strict limitations on its probative value and may even be disregarded by courts. This signifies a decisive shift in the focus of evidentiary strategy to the administrative review stage. Rights holders must now present the most complete and compelling chains of evidence possible during administrative procedures such as oppositions and subsequent reviews, refusal appeals, and invalidation actions. This places significantly higher demands on rights holders to manage their intellectual property and evidentiary documents in a systematic, standardized, forward-looking, and efficient manner.

Furthermore, the Draft also stipulates that a trade mark voluntarily deregistered by its owner may still be cited to refuse a subsequent application within one year from the date of deregistration publication. This provision has also prompted discussion. Some argue that trade marks explicitly abandoned by their owners are typically not in actual use and pose no risk of confusion in the marketplace. Imposing an overly long registration exclusion period for such marks is not conducive to promoting more efficient utilization of trade mark resources.

Currently, the Draft is in the public comment period (closing on 9 February 2026). The rationale and specific implementation standards of the aforementioned procedural provisions have emerged as key points in stakeholder feedback. According to the legislative process, the Draft will be revised, deliberated further, and ultimately put to a vote by the Standing Committee of the National People's Congress. If progress proceeds smoothly, the revised Trade Mark Law is expected to be formally enacted in the first half of 2026.

We will continue to monitor the legislative process and provide updates in due course.