Patent and trademark protection in China is a recurrent topic of public debate. This makes it all the more interesting that a Word figurative mark can be protected under Chinese copyright law. This provides many advantages for practical work and effective trademark protection.
Word figurative mark can be protected by copyright
As a member of the of Literary and Artistic Works, China considers itself bound to regard a combined word figurative mark as a work of art within the meaning of Chinese copyright law. This is an advantage for successful trademark protection, as Chinese copyright law stipulates in Article 2 that the copyright of a foreigner is protected by this law. It also states that copyright is automatically created after a work has been completed.
Chinese copyright law offers practical advantages
In practice, this makes it easier for successful brand protection in China:
- In a lawsuit, the certificate of registration is considered in copyright law as preliminary proof of the completion of the work and thus of the intellectual property. This saves the right holder from having to provide the original draft, the contract or the publication documents, as is customary in trademark law, in order to prove his ownership.
- Copyright registered in China can be recorded at Chinese customs. This differs substantially from the trademark application in that no description of the goods is necessary.
- Copyright is also a legal priority. In opposition or nullity proceedings, the certificate of registration can serve as a priority document to oppose a trademark registered by so-called squatting – the registration of terms or trademarks that the registrant is not actually entitled to.
Another major advantage is that an image associated with copyright is not limited in use to one category of goods or services. Because of the Chinese product categories, classes and subclasses, which are rather confusing for the Europeans compared to the German and Union trademark system, trademark owners have repeatedly registered a figurative or a word figurative mark, but only in the category of goods or services purchased. Thus it is left to others – even those not entitled – to enter the trademark in further categories.
By including Chinese customs in copyright law, the scope of protection for word figurative marks can be significantly extended. Goods using signs similar or even identical to the word figurative mark applied for would be seized by the local customs authority and the copyright holder would be informed of this process.
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