First-to-File Trademarks and Corporate Seal Escrow Strategies for Chinese Subsidiaries
Foreign parent companies protect Chinese market access by filing sub-class trademarks before disclosure and enforcing dual-custody corporate seal escrow.
TRAB Invalidation Procedure
Meaning
Registered trademarks that were obtained in bad faith or violate prior rights can be cancelled through a specialized administrative challenge in China. Initiating a TRAB invalidation procedure allows a legitimate brand owner to petition the trademark review and adjudication board to cancel an existing registration. This administrative body reviews cases involving trademark squatting, deceptive filings, or conflict with pre-existing well-known marks.
This procedure is the primary legal mechanism for clearing blocking registrations from the Chinese registry.
Statutory Challenge
The legal basis for this action is defined under the Trademark Law of China, which permits invalidation petitions within five years of the disputed mark’s registration date. However, if the mark was registered in bad faith, this five-year limit does not apply, allowing the rightful owner to file a petition at any time. The petitioner must prove that the disputed registration violates their prior rights, such as copyright, trade name rights, or personal name rights.
Evidentiary Burden
Succeeding in this action requires submitting extensive documentary evidence that demonstrates the petitioner’s prior rights and the bad faith of the registrant. The board evaluates evidence of the petitioner’s mark’s reputation, prior use in China, and any business relationship with the registrant that shows they knew of the brand. This burden of proof can be difficult to meet for foreign companies that have not yet established a physical presence in the country.
Therefore, the compilation of comprehensive evidence, including advertising materials and trade show records, must be handled by experienced local trademark attorneys to maximize the chance of success.
Judicial Appeal
Decisions made by the administrative board are not necessarily final and can be appealed to the specialized Beijing Intellectual Property Court. If either party is dissatisfied with the invalidation ruling, they must file an administrative lawsuit within thirty days of receiving the decision. This judicial review ensures that the administrative process adheres to legal standards, but it extends the time required to resolve the trademark dispute.