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Comparison of Trademark Examination System in China with Japan
With the improvement of the trademark legal system in China, applications for trademark registration have dramatically increased. However, examination system does not match with this increase when compared with that of Japan. Firstly in Japan, trademark applications are published but there is no system in China. In Japan, Trademarks can be filed either electrically or by document. If it is filed by document, the trademark is immediately transferred into electrical information. In China, however, trademarks cannot be filed electrically. Only document applications are acceptED. Secondly, the Japanese procedure is fairer in giving the applicants opportunities to argue about the reasons for refusal of trademark by designating an adequate time limit which is a common practice in many other countries of the European Union and USA. However, although similar system exists in Chinese trademark, but it relates to partly refusal of trademarks i.e. when a trademark is refused in respect of only part of the goods or services it applies for registration. The other big difference is the opposition system. Patent Office in Japan adopted post-grant trademark opposition system to accelerate the registration of trademarks, whereas in China, the system sticks to a pre-grant opposition. If a preliminary approved trademark is opposed, the trademark keeps pending until the opposition case is finally decided which takes three to 4 years time. This time gap results in using the identical trade mark of the actual owner by the other party and bearing of the burden by the trademark owner.
Figurative elements:
Currently, examination of trademarks containing figurative elements become a big challenge to Chinese Trade Mrks Office (CTMO). In the event of any neglect, a trademark identical with or similar to the prior conflicting trademarks may be passed and published. As a result it has become dangerous to avoid classification of such elements with so many trademarks waiting to be dealt with. In Japan, Classification for figurative elements of marks on the lines of Vienna Classification for trademark examination is being used with the objective to expedite searches of trademarks containing figurative elements and facilitate trademarks examination.
Outsource of trademark searches:
Japanese Patent Office (JPO) outsources searches of trademarks to a private organization. Due to this system, the Japanese trademark examiners are extricated from the heavy labor of searching prior conflicting trademarks and enable them to concentrate on the judgment of the similarity of the trademarks and on the registrability and unregistrability of trademarks, which are more comprehensively and broadly considered than that of China. This has greatly improved the efficiency and quality of trademark examination in Japan.
In conclusion of the comparison, Chinese Trade Mark Office needs to take measures to further refine the procedure of trademark examination taking into account the Japanese system of examination, especially the outsourcing of trademark searches.
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