Evidentiary Burden for Unregistered Foreign Brand Transliterations
Unregistered foreign transliterations require concrete domestic sales and media evidence to prove secondary meaning under Article 6 of the Anti-Unfair Competition Law.
Article 32 Trademark Law
Meaning
Statutory provisions in the People’s Republic of China prevent the registration of trademarks that infringe upon existing prior rights or involve the unfair pre-emption of marks with a certain reputation. When an applicant seeks to register a brand, article 32 trademark law prohibits the misappropriation of names and designs owned by another party. This legal barrier stops entities from profiting off the established goodwill of foreign or domestic competitors.
It defines the point where a new filing transitions from legitimate competition to bad faith acquisition.
Prior Right
Existing intellectual property interests such as copyrights, personal names, trade secrets or industrial designs constitute the first hurdle for any new trademark application. Under article 32 trademark law, these rights receive protection even if the specific mark is not yet registered in the same category. A successful challenge requires the original owner to prove their rights existed before the filing date of the disputed mark.
Documentation such as sales contracts and previous registrations in other jurisdictions often supports these claims.
Reputational Requirement
Proof of a certain influence within the Chinese market is necessary to trigger the second part of the provision concerning pre-emption. Evidence demonstrating that a mark is known to the relevant public allows article 32 trademark law to block filings that use unfair means to secure registration. The State Intellectual Property Office examines advertising records, market share data, investment figures and sales volume to determine if the mark had attained the requisite status before the bad faith filing occurred.
This standard ensures that well known but unregistered brands find protection against squatters who attempt to lock up intellectual property. Such scrutiny involves looking at the geographic spread of the brand and the duration of its use in commerce.
Judicial Review
Decisions made by the Trademark Review and Adjudication Board regarding these disputes are subject to scrutiny by specialized courts. Once a ruling is issued under article 32 trademark law, the losing party may appeal to the Beijing Intellectual Property Court. The court evaluates whether the administrative body correctly applied the principles of fairness and protection of prior rights.
Final judgments from this court establish the legal status of the mark for all future commercial use within the territory.