Understanding Article 50 of China’s Trademark Law

Article 50 provides that, when a registered trademark is revoked, declared invalid or cancelled because it is not renewed on expiry, the Trademark Office must not approve an identical or similar trademark within one year from the relevant date. Several issues arise when interpreting and applying this provision.

1. Legislative Purpose

If a trademark loses its registration and an identical or similar mark is immediately approved for the same or similar goods, goods or services bearing the original registrant’s mark may still be on the market when those of the new registrant appear. Consumers could then confuse their commercial origins. A one-year isolation period allows goods bearing the earlier mark to leave the market and helps prevent confusion. This is the purpose of Article 50.

2. Exclusion for Three Years of Non-use

Article 50 does not apply to a registration cancelled for three consecutive years of non-use without a justified reason. In that situation, the original registrant has not used the mark for three years and no relevant goods or services are on the market, satisfying the purpose of the one-year isolation period. An examiner should therefore not cite such a cancelled registration even if less than one year has passed since cancellation.

3. Calculating the One-Year Period

Under China’s trademark examination and review standards, the relevant date is when the examiner decides the trademark application, rather than its filing date. If less than one year has passed since the identical or similar registration was revoked (other than for three years of non-use), declared invalid or cancelled, it should be cited under Article 50. Once the one-year period has expired, it should no longer be cited on that basis.

The Trademark Law in force when this article was written required examination within nine months of the filing date, but did not prescribe a more precise date for the examiner’s decision.

An applicant whose application is refused under Article 50 may request review. The one-year period may expire during that procedure, giving the application an opportunity to proceed to registration.