Brand owners take note. Effective 2027 China will amend its Trade Mark
Law. Efforts to curb trade mark hoarding are further prioritised coupled
with more stringent accountability.
China passed a fifth revision to its Trade Mark law in June 2026, effective 1
January 2027.
Significant changes include enforcement measures by the State Council
against bad faith registrations and State Council non-use cancellations,
the recognition of well-known marks and online trade mark use. The
opposition period is reduced from three to two months on publication,
increasing efficiency.
Bad Faith
Bad-faith applications and the hoarding of registrations or “trade mark
squatting” remains a significant issue for brand owners who are active in
China. If someone else owns your mark without your authorisation, your
preferred agent or distributor may be reluctant to act on your behalf.
Imports could also be detained at customs. The revision sees a shift
towards further enforcement against bad faith registrations amending
the existing provision from “not for the purpose of use” to disallowing
marks that are “not intended for use and clearly exceeding normal
production and business needs” with the State Council permitted to
impose fines and revoke trade marks.
Non-use cancellations
An applicant should have a bona fide intention to use a trade mark for the
goods and services for which registration is sought in the relevant
territory. Generally, a registered a trade mark may be vulnerable to
cancellation for non-use if it has not been used for a certain period, being
three years in China. Non-use cancellations commonly require active
steps by an interested third party.
Some territories, such as the U.S.A. require a Declaration of Use and
specimens of use on filing the application and/or on renewal to maintain
a registration. While Declarations of Use may have been tabled in drafting
China’s fifth revision, the final revision does not stipulate Declarations of
Use.
Despite this, ex officio cancellations will be allowed whereby the State
Council may cancel trade marks that have become generic or have not
been used for three consecutive years without legitimate reason. This is a
significant change as non-use cancellations may also now be initiated by
the authorities.
Well-known marks
A well-known mark or famous mark is a trade mark that has achieved
such a degree of recognition among the relevant public that it is afforded
a broader scope of protection than ordinary trade marks, beyond the
goods or services for which it is registered and without registration.
The fifth revision recognises well-known marks however the onus to
establish well-known status remains high requiring substantial evidence
of market recognition, including survey evidence, revenue, advertising
expenditure, media coverage and decided on a case by case basis. This is
a significant introduction whereby marks which imitate a well-known
mark or mislead the public to the detriment of the rightful owner will not
be registered and that use forbidden.
Online use
The revision defines evidence of use of a mark on goods, packaging,
commercial transaction documents, advertising, exhibitions and other
commercial activities for the purpose of identifying and distinguishing
the source of goods. Other commercial activities includes evidence of
use of the mark on the internet, e-commerce platforms, social media and
digital advertising which should ease the burden of providing evidence of
use in non-use cancellations and contentious matters.
Procedural revisions
Further changes include reducing the opposition term from three to two
months and a one-year bar on filing only following a voluntary
cancellation. Motion marks and sound marks are a further expansion.
There is also a significant move to stringent control and accountability for
trade mark agencies and practitioners who will be required to register
their information with the State Council Trademark Authority with failures
attracting hefty fines.
Practical take-aways
There is always the risk of non-use cancellations however particularly so
in China as it is a common recourse in review proceedings where a trade
mark has been refused due to a prior mark that may in turn be vulnerable
to cancellation. The recognition of online use should assist brand owners
in defending non-use cancellations. Considering the authorities will too
have the ability to initiate cancellations of marks that have become
generic or have not been used for three consecutive years without
legitimate reason, brand owners are reminded to conduct regular
portfolio reviews, keep records in order and ensure that registrations are
in genuine use.
Please contact Werksmans Intelectual Property practice area on
https://werksmans.com/practice-areas/intellectual-property/ for further
advice and assistance.
This article was first published on 20 August 2026. Author: Donvay Wegierski,
Director at LEX Africa’s South African member, Werksmans Attorneys –
www.werksmans.com
