China releases near‑final draft trademark law: What’s about to change?

Introduction

The current Draft represents a significant milestone in China’s trademark law reform process. It follows nearly three years of deliberation since the 2023 Draft was published in January 2023 (see our article on that previous draft listed on the righthand side).

Compared to the previously published draft, the core policy objectives underlying the Draft have remained the same, namely curbing bad-faith filings, enhancing trademark use obligations, and improving procedural efficiency. Nevertheless, the current Draft sees the removal of the most controversial proposals from the earlier Draft such as the mandatory declaration of intent to use at the application stage and periodic use statements every five years (Articles 5 and 61 of the 2023 Draft), a prohibition on repetitive filings or backup filings by the same applicant, aimed at curbing defensive and back-up applications (Articles 14 and 21 of the 2023 Draft) and compulsory transfer of maliciously registered trademarks to the rightful owner following invalidation (Articles 45–47 of the 2023 Draft).

The current Draft, compared with the 2023 Draft, appears to indicate a modest improvement and deliberately shifting toward continuity and codifying practices already proven and tested in the administrative and judicial enforcement, instead of bringing in completely new proceedings that were not available in practices before.

Main procedural changes proposed

• Opposition Period Shortened (Article 35): The Draft reduces the opposition window from three months to two months. This change aims to accelerate the trademark registration cycle and improve the speed and efficiency of the trademark application process. Nevertheless, this change may also have a profound impact on trademark owners dealing with copycats and other third-party conflicting filings, as it will mean that they need to act much faster with better monitoring and enforcement strategies.
• Suspension of Proceedings (Article 40, Paragraph 1): The Draft strengthens suspension rules by replacing the more discretionary “may suspend” language with “shall generally suspend” in situations where the prior rights are dependent on other pending judicial or administrative proceedings, and where the outcome of those proceedings will affect the resolution of the current case. It appears this adjustment intends to reduce parallel proceedings and inconsistent outcomes, as well as to prevent applicants from having to file repeated new applications while the related proceedings remain pending. Nevertheless, it may also risk significantly increasing the duration of CNIPA procedures and may also open the door to dilatory and delay tactics.
• Administrative Court Review Limited to Original Facts (Article 40, Paragraph 2): The Draft introduces a controversial provision requiring administrative courts hearing trademark appeals to base their review on the state of the facts at the time of the original administrative decision against which the appeal was brought. This would exclude the current principle of "change of situation", which allows such courts to take into account subsequent changes such as cancellation/revocation of cited marks involved in the procedure. If adopted, this could create practical challenges for applicants seeking to overcome prior obstacles through parallel proceedings as it would force the courts to assess appeals only based on the facts at the time when the appealed decision was made, i.e., regardless of whether in the meantime the status of the relevant trademark has changed (e.g., regardless of whether an obstacle was successfully knocked out afterwards in a parallel procedure). Whilst the suspension provided in Article 40, Paragraph 1, may enable the original administrative decision maker to wait for the final updates of the related marks before making the decision, absolutely excluding the court’s ability to take into account the most updated status of the relevant facts may give rise to potential unfair outcomes. Therefore, it remains to be seen whether this principle will be accepted after all or whether other rules would be able to counterbalance this.
• Lifted the One-year Ban for Approving Applications that are Identical or Similar to the Cancelled or Invalidated or Lapsed Registrations (Article 48): The Draft lifts the previously proposed one‑year ban on approving applications that are identical or similar to cancelled, invalidated, or lapsed registrations, and instead applies the one‑year ban only when the registrant voluntarily abandons its trademark registration. We believe this helps to encourage the use of the existing registration. The new article also means that the genuine brand owner may obtain approval of its own application as soon as it successfully removes the blocking hijacking marks through non-use cancellation or invalidation proceedings, which is largely consistent with the current practice. While the Draft suggests that a new application may face some delay where the prior blocking mark is voluntarily de-registered by its registrant, this delay should be limited and manageable in practice by, for example, filing a review to extend the pending period of the application.
• Use Requirements: Ex Officio Cancellation (Articles 56(2) and (3)): The Draft empowers CNIPA (and any third party) to cancel trademarks that have become generic or remained unused for three consecutive years, either upon application or even ex officio. This reinforces the principle that trademark rights depend on genuine use and gives authorities a clearer mandate to clear inactive marks from the register, but does not require use specimens or use declarations as under the 2023 Draft. The exact procedure for ex officio cancellation is not yet known, but brand owners should ensure timely use of their marks and maintain evidence to avoid cancellation risks.

Main substantive changes proposed

• New Non-Traditional Trademarks (Article 14): The Draft now explicitly includes a new type of non-traditional marks, namely motion marks as registrable signs, alongside words, devices, letters, numerals, three-dimensional signs, colour combinations, and sounds. This expansion responds to the perceived needs of digital and media industries. Also noteworthy is that the exclusion of trademark protection for purely functional, inherent or value-conferring characteristics would be extended to cover all non-traditional marks (Article 17).
• Expanded Protection for Well-Known Marks (Articles 20 and 62): The Draft would remove the distinction between registered and unregistered well-known trademarks when it comes to cross-class protection, all such marks would benefit from protection even against marks in different classes of goods and services (as compared with the current law provisions providing that the unregistered well-known known mark can only receive protection on same class goods or services). This adjustment strengthens the legal basis for combating copycat filings (which are often conducted in unrelated classes) and provides broader safeguards for brand owners with significant market recognition but without any successful trademark registrations in China. Nevertheless, given the difficulty and high evidentiary thresholds for well-known mark recognition, obtaining registration and deploying defensive registrations should still remain key for brand owners. The Draft also remains silent on whether same‑class protection is also available for registered well‑known trademarks, which we assume it is, but we will also see if there would be any further amendment to clarify. We believe the wordings of this Article should reflect the principle that well-known trademarks, whether registered or not, enjoy protection across different classes of goods and services, as well as within the same class of goods and services, when their interests are jeopardized. Additionally, Article 62 of the Draft explicitly enables well-known trademark recognition in unfair competition cases (in addition to the trademark cases as provided under the current law), which is aligned with the current practice.
• Combating Malicious Filings (Article 18): Article 18 of the Draft consolidates and clarifies the legal basis for rejecting applications that are not intended for use and obviously exceed normal business needs. It combines the current provisions in Articles 4 and 44 of the Trademark Law, regarding bad‑faith filings, deceptive registrations, and registrations obtained by improper means, into a single article within the “Conditions for Trademark Registration” section. Under the Draft, it becomes unequivocally clear that CNIPA may reject such applications during preliminary examination, as well as in opposition and invalidation proceedings. In addition, the reference to “normal business needs” aligns with current practice, which generally permits good‑faith defensive and backup filings.
• Administrative Penalties for Malicious Filings (Article 53): The Draft contains clear administrative penalties for malicious filings, whereby actual use of the trademark is not a prerequisite for punishment, the filing suffices. Penalties include warnings and fines of up to RMB 100,000 (around USD 15k). The provision applies where applicants knowingly violate prohibitions on misleading marks, imitate well-known trademarks, or engage in other bad-faith behaviours. While the fine amount is modest, the inclusion of explicit sanctions signals a stronger enforcement posture against trademark hoarding and abuse.
• Punishment for Misleading Use of Registered Marks (Article 56): The Draft imposes administrative liability for using registered trademarks in a manner that misleads the public, in addition to the existing prohibited manners such as changing the registered mark, the name of the registrant, address and other registered information. Penalties include orders to correct, fines up to RMB 50,000 (approximately USD 7,5k), and potential revocation of the registration in serious cases. Misleading use may involve false claims about product quality, origin, or performance, or confusing alterations of the mark post-registration. This provision provides a clear legal basis for cracking down on “scheming” trademarks and deceptive branding practices. It is worth noting that the CNIPA, around the releasing time of the Draft, issued a notice on enhancing the administration on trademark use as well as an interpretation of the notice, listing seven (7) types of violating use and relevant examples, some of which addressed the concerns on bad faith filing and trademark use as well, we will publish a client publication on this topic shortly after the publication of this article.

Main changes to trademark enforcement procedures

• Enhanced Coordination Between Authorities (Article 72): The Draft formalizes obligations for administrative and judicial bodies to cooperate in trademark infringement cases. This provision is designed to reduce jurisdictional friction and ensure smoother transitions between, for instance, administrative enforcement and criminal proceedings, when administrative authorities identify infringements that constitute IP crimes. In practice, it is hoped that this article could help prevent delays and inconsistencies when cases may involve overlapping administrative and judicial actions.
• Revised Damages Cascade System (Article 74): The Draft revises the cascade framework for calculating direct infringement damages by restoring the rights holder’s ability to choose the method of calculation. Under the new approach, rights holders may elect to claim either their actual losses or the infringer’s profits—whichever is more advantageous to them—rather than being bound by the current rule that prioritizes actual losses. The Draft also codifies the existing practice by confirming that reasonable enforcement expenses, including investigation costs and attorney fees, may be recoverable in addition to statutory damages.
• Time of Use of the Asserted Trademark Registration for Considering Exemption on Damages (Article 75): No use of the asserted trademark registration is a valid defence to exempt the infringing defendant from the payment of damages. However, the existing language in the law does not clearly specify what time should be counted as the starting time for the 3-year time period of use. The Draft clarifies the use to be within the 3 years prior to the filing date of the civil case, which however is rather controversial because the trademark registrant may just start to use the registration for litigation purpose, resulting in the exemption to the infringing defendant unavailable in fact. We expect further amendments on this article to fill in the loophole.
• Civil Liability for Malicious Litigation (Article 78): The Draft also explicitly addresses the growing concern over abusive enforcement tactics, such as filing infringement suits based on squatted marks or pursuing claims in bad faith. Under Article 78, parties initiating malicious litigation that causes harm (e.g. trademark squatters suing the genuine owners based on squatted marks) will not only face penalties from court but also bear civil liability for the resulting losses. This provision is aimed as a deterrent to the increasing bad faith litigation trend, and reinforces the principle that trademark rights must be exercised responsibly and discourages opportunistic litigation strategies.

Next steps

The Draft is currently open for public comment until 10 February 2026, offering stakeholders a final opportunity to provide feedback before the law moves toward adoption. Based on legislative practice and the current stage of review, the revised Trademark Law is expected to be enacted within 2026, likely in the first half of the year, with only minor adjustments anticipated at this point.

This means that there is a critical window for brand owners and industry participants to voice support or propose refinements to enhance clarity and operational feasibility of the Draft before its adoption. Our firm is actively monitoring developments and can assist in preparing and submitting comments on your behalf to ensure your concerns and recommendations are heard.

If you have questions about the Draft, its likely impact on your strategy, require a full English translation, or if you would like us to help draft and submit comments, please reach out to our contacts listed at the side of this article.

Authored by Stefaan Meuwissen, Grace Guo, Helen Xia, and Joan Mao.