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Min YAO
Trademark Attorney
Linda Liu & Partners

 
I. Introduction
 
Although the Chinese government has increased its crack-down on malicious trademark imitation and pre-emptive registration in recent years, the imitation and pre-emptive registration of trademarks of famous enterprises is still common. The competent authorities rejected some of them while some were finally approved due to insufficient evidence or problems with the existing law. The purpose of this article is to provide a reference for enterprises to prevent malicious trademark imitation and pre-emptive registration through the analysis of several cases.
 
II. Cases in which malicious imitation was rejected
 
Case No.1: Honda Motor Co., Ltd. (hereafter referred to as Honda Company) vs. Trademark Review and Adjudication Board (hereafter referred to as TRAB)
 
(1) Administrative procedure

Lifan Industry (Group) Co., Ltd (hereafter referred to as Lifan Company) filed the trademark application for trademark “力帆·轰达” No. 1503034, designating motor cycles, motors for land vehicles, cycle cars, etc. in Class 12 on April 15, 1999. Honda Company filed an opposition after the mark was published. The Trademark Office (hereafter referred to as TMO) held: The trademark “HONDA”, owned by Honda Company, has been widely and continuously used in vehicles and motorcycles. Moreover, due to the wide advertising of this mark by Honda Company, “HONDA” has been known by Chinese consumers. Though the trademark “力帆·轰达”, Lifan Company applied for registration for motorcycles, motors for land vehicles, cycle cars, etc. in Class 12, is composed of pure Chinese characters, “轰达” thereof is likely to be considered as the corresponding transliteration of “HONDA”. Therefore, it is easy to cause inappropriate association between the opposed mark and Honda Company among consumers and thus result in misunderstanding and mistaken purchases. Therefore, the TMO made the decision that the opposition ground of Honda Company was tenable and the trademark application for “力帆·轰达” No. 1503034 was disapproved.
 
Lifan Company was dissatisfied with the decision and appealed to the TRAB. The TRAB held: Comparing the opposed mark “力帆·轰达” with “HONDA” owned by Honda Company, the composing words are completely different. The former is a Chinese word mark while the latter is a foreign word mark. Moreover, the two marks are also obviously different in address and meaning. In the market, “HONDA” is generally understood as “本田” by the auto industry and relevant public instead of “轰达” or other corresponding Chinese words. Therefore, the opposed mark does not constitute a corresponding relation with “HONDA” and the two marks will not cause confusion and misunderstanding among consumers. Meanwhile, goods such as motorcycles and automobiles designated by the opposed mark and the mark of Honda Company are not commonly used consumer goods. Usually, consumers will pay closer attention in buying these items and they are not likely to confuse the opposed mark “力帆·轰达” and “HONDA” of the respondent. Therefore, the two marks do not constitute similar marks on similar goods. In addition, the evidence submitted in this case is insufficient to prove the claim that “HONDA” constituted a well-known trademark by Honda Company. The TRAB would not support this claim. Finally, the TRAB made the decision that the trademark “力帆·轰达” No. 1503034 was approved for registration.
 
(2) Lawsuit

Honda Company was dissatisfied with the decision made by the TRAB and filed a lawsuit before the Beijing No.1 Intermediate People’s Court (hereafter referred to as Beijing No.1 Intermediate Court). The Beijing No.1 Intermediate Court held: The issue of this case is whether the opposed mark constitutes similar mark to the cited mark on similar goods. According to the Article 9(2) of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Judgment of Trademark Civil Dispute Cases in the Application of Law and the Article 52(1) of China Trademark Law, the similarity of a trademark is determined if the allegedly infringed trademark is similar to the trademark of the plaintiff in the appearance of the word, pronunciation, meaning or composition of the device or color, or the overall composition of all the composing elements, or the stereo shape, composition of colors, which is likely to cause misunderstanding of the source of the goods or if there is relevance in the source of goods bearing the plaintiff’s trademark among the relevant public. According to these rules, with regard to whether the word mark is similar, it should be decided from three aspects, that is: the appearance of word, pronunciation and meaning, and whether it is likely to cause confusion and misunderstanding among the relevant public. As for the recognition of word mark, the address, that is the pronunciation, of a trademark plays a very important role. In this case, since the cited mark “HONDA” is composed of pure English letters, the relevant Chinese public usually does not recognize the Chinese meaning of the trademark. Thus it is of strong distinctiveness. The pronunciation of the cited mark is close to “Hong Da” in pinyin and thus the pronunciation of “轰达” of the opposed mark is close to that of the cited mark. Moreover, the evidence provided by Honda Company can prove that the cited mark is of certain popularity in China before the application date of the opposed mark. Therefore, the opposed mark and the cited mark are likely to cause confusion and misunderstanding among the relevant public when they are used on similar goods. Based on the above, the opposed mark constitutes similar mark to the cited mark on similar goods. On June 23, 20, Beijing No.1 Intermediate Court canceled the decision made by the TRAB. 
 
Case No.1: Michelin (hereafter referred to as Michelin) vs. TRAB
 
(1) Administrative procedure

COMPAGNIE GENERALE DES ETABLISSEMENTS MICHELIN (hereafter referred to as Michelin Company) filed the trademark application for trademark “米祺林mi qi lin & device” No. 1396179 designating clothes in Class 12 on March 2, 1999. Michelin Company raised an opposition after the mark was published. The TMO made a decision that the opposed mark was approved for registration. Michelin Company was dissatisfied with the decision and appealed to the TRAB. The TRAB held: The issue of this case is whether the trademark “米其林” No. 519749 (cited mark 1) constitutes a well-known trademark before the application date of the opposed mark according to the Article 14 of Trademark Law and whether the opposed mark constitutes a situation in which the trademark should not be approved for registration and prohibited from use according to the Article 13(2) of Trademark Law. Most of the evidence provided by Michelin Company was formed later than the application date of the opposed mark or formed out of Mainland China. The evidence is insufficient to prove that the cited mark constitutes a well-known mark before the application date of the opposed mark. In view of the above and considering that the designated goods and clothes of the opposed mark are obviously different from the tires of the cited mark in function, use, consumers, sales channel, etc., the registration of the opposed mark does not reach the extent to harm the interests of Michelin Company. Thus the opposed mark did not constitute a situation in which the trademark should not be approved for registration and prohibited from use according to the Article 13(2) of Trademark Law. In addition, the opposed mark is different from the prior trademark “MICHELIN” No.632255 on clothes in Class 25 (cited mark 2) registered by Michelin Company in overall appearance, composing elements, addressing, etc. They did not constitute similar marks on similar goods. Based on the above, the opposition ground raised by Michelin Company was untenable and the opposed mark was approved for registration.
 
(2) Lawsuit

Michelin Company dissatisfied with the decision made by TRAB and filed a lawsuit before the Beijing No.1 Intermediate Court. The Beijing No.1 Intermediate Court held: The evidence provided by Michelin Company was insufficient to prove that the cited mark was well-known by the relevant public in China before he application date of the opposed mark and its claim that the cited mark belonged to the well-known mark before the application date of the opposed mark had no basis in fact.
 
However, with regard to whether or not the opposed mark is similar to the cited mark 2, Beijing No.1 Intermediate Court held that: The opposed mark is composed of Chinese characters “米祺林”, “Mi Qi Lin” and device. The word part is the major part for recognition and pronunciation. Though the cited mark 2 does not contain Chinese characters, since the corresponding Chinese translation of the trade name “MICHELIN” is “米其林”，which is a commonly used transliteration. “米祺林” of the opposed mark is similar to “MICHELIN” in pronunciation and similar to the transliteration “米其林” in both pronunciation and appearance. Comparing the letters “Mi Qi Lin” of the opposed mark and “MICHELIN” of the cited mark 2, though they are different in uppercase and lowercase and “Qi” and “CHE” thereof, since they are similar in pronunciation, the difference between them is not obvious and it is easy to make the relevant public hard to distinguish. Based on the above, the opposed mark constitutes similar mark to the cited mark 2 on similar goods. On March 20, 2009, Beijing No.1 Intermediate Court canceled the decision made the TRAB.   
 
Analysis and counter measures:
 
In Case 1, the claim of Honda Company was accepted by the TMO but the TRAB cancelled the decision made by the TMO. In Case 2, neither the TMO nor the TRAB supported the claim of Michelin Company. However, in the following lawsuit, the rightful owner of each case was supported by the court. Usually, the TMO and TRAB, as administrative authorities that are responsible for the grant and confirmation of trademark rights, are more focused on the trademarks per se in the examination of the cases. In the above two cases, by strictly applying Trademark Examination Guidelines (hereafter referred to as Guidelines), it might be difficult to decide that the opposed mark and the cited marks are similar. This is the major reason that in Case 1, the TRAB cancelled the decision that力帆·轰达” is similar to “HONDA” made by the TMO and in Case 2, both the TMO and TRAB decided that the opposed mark is not similar to the cited mark.
 
However, the two marks, “HONDA” and “米其林”, are without any doubt, of high popularity in Chinese market. The opposed marks had signs of imitation of the owner’s marks to a certain extent. Particularly in Case 2, the opposed mark obviously imitated the owner’s cited mark. If the Guidelines are only strictly applied to decide whether the trademark constitutes a similar mark on similar goods, it is unfair to the owner.
  
From the above cases, though the court did not directly recognize that the owners’ trademarks were well known, in fact, the court fully considered the awareness of the owners’ marks. According to our many years experience in practice, in Case 1, since the same pinyin may be corresponding to a number of Chinese characters, it is hard to decide they are similar only due to the similarity on pronunciation. In Case 2, the decision that the opposed mark was similar to the cited mark based on that the pronunciation of the corresponding Chinese translation of a foreign word mark is similar to the pinyin of a Chinese word mark extends the standard of similarity. The above cases of which the administrative authorities and the courts are different in the determination of the similarity of trademark remind the owners to try their best to use each procedure provided by law to defend their rights. As mentioned above, usually, the TMO and TRAB use the Guidelines as a major reference in the determination of whether the trademarks are similar. Meanwhile, they also take the popularity of the trademark per se and the possibility that the trademark is likely to cause confusion and misunderstanding among the consumers when used on the designated goods or services. The guidelines list various situations of which the trademarks are similar. However, due to the complexity of practice and the development of the standard for determining similarity, it is unavoidable that Guidelines are limited in content.  
 
The courts use the Guidelines as a reference; meanwhile they focus more on the Interpretation of the Supreme People’s Court on Several Issues Concerning the Judgment of Trademark Civil Dispute Cases (hereafter referred to as the Interpretation) and the Opinion of the Supreme People’s Court on Several Issues Concerning the Judgment of Grant and Confirmation Trademark Right in Administrative Cases (hereafter referred to as the Opinion). The Interpretation and Opinion provide a more general standard for the standard for determination of the similarity of trademarks, which enables the courts to consider more of the popularity and distinctiveness of the trademark per se and the relevance of the designated goods in determining the similarity of the trademark.
 
The Interpretation and Opinion provide in the determination of similarity of trademark, as follows:
 
Article 9 of the Interpretation: The similarity of a trademark prescribed in the Article 52 (1) of Trademark Law refers to that comparing the allegedly infringed trademark with the registered trademark of the plaintiff, the appearance of the word, pronunciation, meaning or composition of the device or color, or the overall composition of all the composing elements, or the stereo shape, composition of colors thereof are similar, which is likely to cause misunderstanding of the source of the goods or the there is particular relevance in the source of goods bearing the plaintiff’s trademark among the relevant public.
 
Article 10 of the Interpretation: According to the Article 52 (1) of Trademark Law, the people’s courts may apply the following principles in determining whether or not the trademark is similar or identical:

(1)Taking the average attention of the relevant public as a standard;

(2)To compare the trademark as a whole meanwhile to compare the major elements of the trademark. The comparison should be done in the separation of the subjects for comparison;

(3)To determine whether the trademark is similar, the distinctiveness and popularity of the trademark should be taken into consideration.
 
Article 16 of the Opinion: In the determination of whether the trademark is similar, the people’s courts should consider the similarity of the composing elements and the overall appearance of the trademark as well as factors such as the distinctiveness and popularity of the involved mark and the relevance of the designated goods and whether it is easy to cause confusion. 
 
In addition, what is worthy of noticing by the owner is that according to the relevant regulations of Administrative Procedural Law and the Regulation of the Supreme People’s Court on Several Issues Concerning Evidence in Civil Cases and the practice of administrative lawsuit, in administrative lawsuit, what the courts examine is whether the administrative decision is in accordance with the legal procedure and whether the application of law is correct based on the evidence submitted by the involved parties in the administrative procedure. With regard to the evidence provided by the owner, unless they are newly formed or are difficult to be collected due to the Force Majeure in administrative procedures, the courts usually would not accept. This reminds the owner to collect favorable evidence in administrative procedures to avoid a situation that the courts in the lawsuit would not accept the evidence.
 
III. Cases of which the trademark registration applications were approved
 
Case 3: Liu Jianjia vs. Sony Ericsson Mobile Communications (China) Co. Ltd. (hereafter referred to as “Sony Ericsson China”) 
 
(1) Administrative procedure

Liu Jianjia (Chairman of the Board of Guangzhou Soaiy Digital Technology Co., Ltd.) filed the trademark application for trademark “索爱” No. 3492439 designating CD players, loudspeakers, telephones, etc. in Class 9 on March 9, 2003. Sony Ericsson China filed a dispute cancellation against this mark in 2005. Based on the following grounds, the TRAB decided to maintain the registration of the disputed mark:

①This mark does not belong to signs which have other unhealthy influences prescribed in the Article 10(1)(ⅷ). “Other unhealthy influences” refers to those that have negative influences on the public interests and order. In this case, the evidence submitted by Sony Ericsson China was insufficient to prove that the disputed mark has caused unhealthy influence on the public interests and order.

②The trademark also does not constitute a situation of “a reproduction, imitation or translation of the well-known mark of another person that has been registered in China” prescribed in the Article 13(1) of Trademark Law. The evidence submitted by Sony Ericsson China was insufficient to prove that “索爱” became an unregistered well-known trademark in China before the application date of the disputed mark.

③The evidence submitted by Sony Ericsson China is also insufficient to prove that Liu Jianjia constituted the situation of “using unfair means to pre-emptively register the trademark of some reputation by another person” prescribed in the Article 31 of Trademark Law.   
 
(2) Lawsuit

Beijing No.1 Intermediate Court

Sony Ericsson China was dissatisfied with the decision made by TRAB and filed a lawsuit before Beijing No.1 Intermediate Court. Beijing No.1 Intermediate Court upheld the decision made by the TRAB with regard to that the disputed mark does not constitute the situation prescribed in the Article 10(1)(ⅷ) and Article 13 of Trademark Law. However, based on the following grounds, Beijing No.1 Intermediate Court judged that the applicant constituted “using unfair means to pre-emptively register the trademark of some reputation by another person” and thus cancelled the dispute decision made by the TRAB.
 
①Though Sony Ericsson China did not use “索爱” as an unregistered trademark in advertising, the combined action of acceptance and publicity by consumers and media have made “索爱” the effect that it were used by Sony Ericsson China itself. Therefore, “索爱” became a trademark used by this company in China.

②The legislative purposes of the Article 31 of Trademark Law is to limit the acts which are in violation of the principle of good faith and malicious rush registration of unregistered trademarks of others. In this case, before the application date of the disputed mark, there was relevant media publicized and reported “索爱” cell phone and other electronic devices of Sony Ericsson Corporation and Sony Ericsson China. Moreover, the reputation of Sony Ericsson Corporation, co-founded by Sony Corporation and Ericsson Corporation, which are of high reputation, is higher than the general enterprises founded during that time. Liu Jianjia has been in electronic industry for many years and obviously knew the above facts. Therefore, under the circumstance that Liu Jianjia knew Sony Ericsson Corporation  and Sony Ericsson China are the owners of “索爱”, it was obviously invalid that he still filed the registration application for the disputed mark on goods such as cell phones.  
 
Beijing Superior Court
 
Liu Jianjia was dissatisfied with the judgment made by Beijing No.1 Intermediate Court and appealed to Beijing Superior Court, which upheld the decision made by the TRAB and Beijing No.1 Intermediate Court that the disputed mark did not constitute the situation prescribed in the Article 10(1)(ⅷ) and Article 13 of Trademark Law. However, with regard to whether the disputed mark constituted “using unfair means to pre-emptively register the trademark of some reputation by another person” prescribed in the Article 31 of Trademark Law, Beijing Superior Court held:
①The claim that the registration of the disputed mark by Sony Ericsson China manifested “using unfair means to pre-emptively register the trademark of some reputation by another person” prescribed in the Article 31 of Trademark Law was in violation of Article 5 (2) of Anti-unfair Competition Law.
②According to the Article 31 of Trademark Law, the trademark which was pre-emptively registered refers to those which have been used and of certain influence. Article 3 of the Trademark Law Implementing Regulations stipulated that the use of trademark includes the use of trademark on goods, package or container of goods and trade instruments of the goods, or on the advertising, exhibition and other business activities. Therefore, the pre-emptively registered trademark should be used by the owner itself in business activities. Since Sony Ericsson China did not use “索爱” commercially, “the abbreviation ‘索爱’ was adopted and widely used by the Chinese relevant public and media and this abbreviation had been known and accepted by general consumers and made it the acknowledged short name for ‘索尼爱立信’  to which ‘索爱’ formed the only and corresponding relation. ‘索爱’ functioned as a indicator of the source of the goods and quality since it was accepted and used by general consumers and the media. The effect of the actual use and influence should be applied to Sony Ericsson Corporation and Sony Ericsson China, equaling to the use by Sony Ericsson China.” recognized by the original judgment has no legal basis. 
 
Case 4: Quanzhou TXBB Food Co., Ltd (hereafter referred to as “TXBB”) VS. Ragdoll Productions (hereafter referred to as “Ragdoll”)
 
(1) Administrative procedure

“Teletubbies” is a children’s TV series co-produced by BBC and Ragdoll. The series had wide influences in children’s TV. Quanzhou Quansheng Food Factory filed a trademark application for “天线宝宝” (Teletubbies in Chinese characters) designating gelatine for food, fruit gellies, pectin for food, etc. in Class 29 on November 5, 2002. Later, the trademark was assigned to TXBB. In 2004, Ragdoll filed a dispute cancellation against this mark. The TRAB held that TXBB filed the trademark registration application when it was aware or should have been aware that “天线宝宝” was created by others and of high creativeness and distinctiveness. The act was an intentional free ride of others’ reputation on famous works, which violated the good faith of the public socialism morals. It not only undermined the legitimate rights and interests of Ragdoll but also the public social order and morals and easily caused misunderstanding of the source of goods among the consumers which resulted in an unhealthy social influence, which was in violation of Article 10(1)(viii) of Trademark Law. Based on this, the TRAB made the decision to cancel the registration of the disputed mark.
 
(2) Lawsuit

TXBB was dissatisfied with the decision made by TRAB and filed a lawsuit before the Beijing No.1 Intermediate Court. The Court held that “signs which undermine the socialism ethos or have other unhealthy influences should not be used as trademark” prescribed in the Article 10(1)(viii) of Trademark Law refer to those may have negative influence on public interests and order, such as politics, economy, culture, religion, nationality and so forth of our country. If the registration of the sign only undermines the civil rights and interests of a particular entity, it may be solved through a different way in accordance with the remedies and corresponding procedures prescribed in Trademark Law. The disputed mark “天线宝宝” in this case, is a pure word mark. The word formation of this mark and the use of this mark on the approved goods did not cause unhealthy influences on the public interests and order, such as politics, economy, culture, religion, nationality and so forth of our country. In the decision made by the TRAB, it determined that the registration of the disputed mark undermined the public order and morals and was likely to cause misunderstanding of the source of the goods among consumers and thereby caused unhealthy social influences, which confused the interests of a particular civil entity and public interests and order, only on the grounds that the registration of the disputed mark violated the principle of goods faith and undermined the legitimate rights and interests of Ragdoll. This was a misapplication of Article 10(1)(viii) of Trademark Law and thus the decision made by the TRAB was repealed.  
 
Analysis and countermeasures:
 
In Case 3, “索爱” had been accepted and used as the short name for “索尼爱立信” and “Sony Ericsson” and functioned as an indicator of the source and quality of the goods before the application date of the disputed mark. “索爱” corresponds to Sony Ericsson China. However, since “索爱” has not been registered by Sony Ericsson China, someone else took an early lead, which caused the difficulties in the protection of rights. 
 
In this case, Sony Ericsson China did not use“索爱”in a trademark sense. However, general consumers and the media had accepted and used it widely. Could the fact that the trademark had been used by others but not the owner itself be taken as the use of trademark? The opinion towards this issue by the court of first instance and second instance is quite the opposite. This is also the basic reason for the different judgments made by the court of first instance and second instance. Certainly, with regard to this case, we believe the determination of court of second instance complied more with the legislative spirit of “the use of trademark” in Trademark Law.
 
For most enterprises, with regard to the trademarks in use or planned to be used, they are usually filed for registration. However, the enterprises are likely to neglect the legal protection towards the short names or abbreviations of trademarks accepted by the relevant consumers in commerce, particularly if they are not accepted by the enterprises themselves. The above case reminds enterprises that it is necessary to take measures to protect the short names or abbreviations of trademarks accepted by relevant consumers in commerce to avoid the situation of Case 3.
 
In addition, in Case 3, the writer of this article noticed that the Beijing Superior Court held that the act of Article 5 (2) of Anti-unfair Competition Law was manifested in the Article 31 of Trademark Law and the involved parties had no opposition towards this point. The Several Regulations Concerning Prohibition of Unfair Competition Acts as Counterfeiting of Special Names, Package and Trade Dress of Famous Products stipulated “the special name of famous product refer to the name which is solely owned by the famous product and different from the generic name, excluding that is registered as trademark.” From this regulation, the writer believes it is disputable for the determination by Beijing Superior Court that “the nature of special name of famous products is the trademark which has been used and is of certain popularity”. That is to say, the special name of famous products may be understood as the name solely owned by the famous product. However, it is not limited to the trademark. The scope of the special name of the famous product is wider than the trademark. Therefore, if the name had been accepted by consumers and established particular relevance with the goods, we believe the name can be defined as a “special name of famous goods” and the owner may seek protection in accordance with Anti-unfair Competition Law. 
 
In the above case 4, “天线宝宝” is the name of a children’s TV series but was pre-emptively registered by someone else as a trademark. Though the act violated the principle of good faith, it was neither a registered trademark nor was used as a trademark in commerce. After it was registered by someone else, it was hard for the rightful owner to seek legal protection from Trademark Law. In addition, although Copyright Law in China protects the word, this law does not directly protect the name of a work. Therefore, in this case, though the rightful owner took legal actions, the disputed mark was not cancelled. The disputed mark was used on foods products in Class 29. As a maker of children’s programs, the influence of the rightful owner was relatively small. If it had been registered on toys in Class 28, it would be very harmful to the development in the future and for peripheral products and might cause great economic loss to the rightful owner. From this case, take a filmmaker as an example. It is necessary to take legal measures to protect the important names of works. For instance trademark registration can be filed on relevant goods or services such as toys in Class 28, children’s clothes in Class 25, children’s books in Class 16, game software in Class 9 and the development of game software in Class 44 in order to have a better protection for intellectual properties for enterprises.
 
IV. Summary:
 
Generally analyzing and comparing the above four cases, in Case 1 and Case 2, the major reason that the owners’ claims were supported by the courts finally is that the involved trademarks were used on goods similar to those of the cited marks. With regard to whether or not the trademark is similar, the court can be appropriately looser or stricter within the power of discretion after considering various factors in the case. The circumstances Cases 3 and 4 are relatively special. The parties who requested protection did not use the names, over which they enjoyed a right with a nature of intellectual property, in trademark sense. Under such circumstances, it is relatively difficult to seek protection from Trademark Law. In addition, in practice, the pre-emptive registrations for trademarks that are of certain popularity on dissimilar goods or services happen the most.
 
For trademarks that are of certain popularity but have not yet reached the level of being well-known, protection based on dissimilar goods/services is confronted with a predicament in China. So far, the protection from China Trademark Law to such trademarks is relatively weak. For such trademarks, it is difficult to effectively take counter measures against the infringement if the goods/services are dissimilar or there is no sufficient evidence to prove the bad faith of the infringers according to the Article 9, Article 13, Article 15, Article 28 and Article 31 of Trademark Law. However, it is obviously unfair to the owners who spend a lot in financial and human resources in designing the trademark and promoting the brand in order to have the public accept it. It is also disadvantageous for the protection of innovation and intellectual property. Similar to well-known trademarks, trademarks that are of comparatively high reputation and distinctiveness embody more creativity of the owners and commercial value. They should have broader protection than ordinary trademarks.
 
It is important to explain that the insufficient protection for trademarks of certain reputation and distinctiveness raised concerns from the public and that the Chinese government is trying to solve this problem through legislation. In 2003, after being commissioned by the State Council, the State Administration of Industry and Commerce undertook the third amendment of Trademark Law. Article 34 of the latest Trademark Law (revised draft for examination) in 2009 stipulates:
 
Any trademark in respect of which an application for registration is filed on similar goods or services is identical with or similar to the trademark used earlier by others, if the applicant knows the existence of this mark due to the contractual, business, regional or other relations, should not be approved for registration.

Any trademark in respect of which an application for registration is filed on dissimilar goods or services is an imitation of others’ registered trademarks that are of strong distinctiveness and certain influence and is likely to mislead the public, should not be approved for registration.
 
Without doubt, the incorporation of this article will be helpful in protecting these kinds of trademarks. The third amendment of Trademark Law will also provide better protection to these kinds of trademarks. Our firm will continue to pay close attention to the third amendment of Trademark Law. If there is any development, we will try our best to discuss it from a perspective of practice with our clients as soon as possible.
 

（2011）