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China Trademarks: Like a Box of Chocolates

Posted in China Business, Legal News

Those of us who deal with China trademarks on a regular basis are used to a certain level of weirdness. To be fair, most decisions from the Chinese Trademark Office (CTMO) are logical, apply the appropriate laws and regulations, and occur within the general expected timeframe. But a nontrivial number are simply bizarre, and come with neither warning nor explanation. A trademark might be rejected for a ludicrous supposed conflict, like having the word “the” in common with a previously registered trademark. A trademark might be registered when it should be rejected for being identical to a previously registered trademark. A trademark might sit in limbo for two or three years before it receives an official decision. You never know what you’re going to get. Just like a box of chocolates, if that box was a few weeks past the sell-by date. But even if you get two or three horrendous decisions in a row, you can usually convince yourself it’s bad luck rather than a trend. For this reason, it has taken people a while to realize that something monumentally weird is going on: the CTMO has stopped issuing decisions.

As it turns out, this is an open secret. Or rather, it’s not a secret at all, it’s just not being publicized. In conjunction with the new Trademark Law going into effect on May 1, the CTMO has been switching over to a new computer system. During the transition period, the trademark examiners have (in theory) been working as usual: reviewing applications and rejecting trademarks and approving trademarks and all of the other wonderful things they do. Except they have been doing all of this offline, and until the new computer system is operational, no one outside the CTMO knows exactly what the examiners have been up to or how many hundreds of thousands of decisions await dissemination. Had the transition to the new computer system taken a couple weeks, which was doubtlessly the plan, no one would have been the wiser. But like almost every major IT project in the history of IT projects, the transition is way behind schedule – nearly four months and counting.

The most recent update I heard was that the new computer system would be online by the end of this month at the earliest. Not exactly the boldest of pronouncements. The people at the CTMO cannot be happy with this situation; they busted their tails to get caught up before the new law went into effect and now, just a few months later, are more behind than ever. But the Chinese trademark agents (who handle the vast majority of trademark applications, and are required by law to handle all applications filed by non-Chinese entities) must be even unhappier. They’re the ones that have to pass along the results to their clients.

All of this is particularly ironic given the new Trademark Law’s inclusion of strict deadlines for trademark decisions, which was unabashedly publicized by news reports and law firms alike. But unless you’re Alanis Morissette, irony doesn’t pay the bills.

UPDATE (8-25): The CTMO has just started to issue a few rejections and approvals, but the massive backlog remains.