Complaints regarding the growth of bad faith trade mark applications in China have been raised for a while now. The existing Trade Mark Law in China does not readily imply bad faith on trade mark applicants with no genuine intention to use. On 23 April 2019, the Standing Committee of the National People’s Congress passed some amendments to the Chinese Trade Mark Law, which included addressing bad faith registrations that are not intended for actual use. Interestingly, the amendment will only come into effect later in the year, on 1 November 2019, perhaps in line with or as part of a potential resolution of the Trump trade war.
According to the amendments, bad faith trade mark applications that are not intended for use should be rejected. The amendment further imposes a duty on trade mark agencies not to accept engagements if they know or should have known that the trademark applied for is not intended for use. If anyone consider that a mark was filed in bad faith with no intention to use, they may now base an opposition or an invalidation, as the case may be, specifically on this ground.
The amount of punitive damages for trade mark infringement committed in bad faith have also increased. Where the infringement is committed in bad faith and the circumstances are ‘serious’, the damages has been raised from “up to three times” to “up to five times” the amount determined. Where it is difficult to determine the amount to be awarded, the maximum amount of statutory compensation that the People’s Court may award has been raised from RMB 3 million to RMB 5 million.