China’s National People’s Congress Issues Draft Amendment to PRC Trademark Law

China IP Brief | Dispatches from the Frontiers of IP Law in China

A much-awaited draft amendment to the Trademark Law of the People’s Republic of China (TML Draft Amendment) was published for public comment by the National People’s Congress (NPC) on December 27, 2025. The TML Draft Amendment follows from an initial draft circulated by the China National Intellectual Property Administration (CNIPA) in January 2023 (CNIPA 2023 Draft TML).

The TML Draft Amendment is arguably much less ambitious than the controversial CNIPA 2023 Draft TML. Several widely discussed changes proposed in that earlier draft are absent in this more recent version, including a “use in commerce” requirement for maintaining registrations, a prohibition on duplicate registrations and procedures for transfer requests in invalidation proceedings. Industry groups and professional organizations will be submitting comments on behalf of their members within the 45-day public comment period, which ends on February 10, 2026.

The TML Draft Amendment (in Chinese) can be accessed here. A Loeb translation and comparison of the current law and the TML Draft Amendment can be accessed here.

The TML Draft Amendment comprises 84 articles in nine chapters (in contrast to 73 articles in eight chapters in the current law and 101 articles in 10 chapters in the CNIPA 2023 Draft TML). It introduces some significant changes to both the procedural and the substantive provisions of the current law. In particular, it codifies certain widely accepted administrative enforcement and judicial practices into the current Trademark Law, including the imposition of administrative penalties against bad faith filings and the establishment of civil liability arising from malicious litigation (“abuse of rights”). A core feature of the amendment is its emphasis on the fundamental role of use in commerce, reflecting a shift toward prioritizing actual use over mere registration. The TML Draft Amendment further incorporates several provisions intended to streamline and optimize examination and review procedures, including shortening the opposition period, reinstating an “ex officio cancellation” mechanism and unifying the rules for the suspension of review procedures pending the outcome of parallel actions. If adopted in a final revised version of the Trademark Law, these changes would represent the most significant update to the current law since November 1, 2019.

Some of the more consequential revisions, along with our comments, are set out below.

Procedural Revisions

• Article 35 (Trademark Opposition Proceedings): This article shortens the period in which oppositions can be filed from three to two months. It provides that any prior rights holder or interested party can file an opposition based on Article 19 (likelihood of confusion among trademarks), Article 20 (well-known trademarks), Article 21 (preemptive registration by agents and business associates), Article 22.1 (geographical indication) and Article 23 (prior rights). In addition, any person may file an opposition based on Article 15 (prohibited signs), Article 16 (lack of distinctiveness), Article 17 (nonfunctionality of 3D and other trademarks), Article 18 (bad faith registration) and Article 24 (trademark filed by trademark agency).

Comment: This article shortens the opposition period from three to two months. It effectively reduces the timeline for the filing of a trademark through to registration, and simplifies current examination and prosecution procedures (i.e., oppositions and opposition appeals). The proposed elimination of the opposition appeal procedure by an opposed party, under Article 39 of the CNIPA 2023 Draft TML, was abandoned in this second draft. These proposed changes reflect broader efforts to address long-standing concerns over multiple layers of review in post-opposition proceedings (opposition appeals, invalidations and subsequent litigation). While the changes are also consistent with ongoing efforts to address the proliferation of malicious opposition challenges, the provision permitting any person to file an opposition based on absolute grounds seems to undercut those efforts and would arguably provide fertile ground for malicious and vexatious oppositions.

• Article 40 (Suspension of Procedure): This article expands on paragraph 4 of Article 35 of the current law. It introduces a mechanism for the suspension of examination and review proceedings, including oppositions, rejection appeals, opposition appeals and invalidations. Paragraph 2 of this article further provides that, in review cases involving prior rights conflicts (i.e., relative grounds under Article 19 of this draft), subsequent changes in the status of the relevant prior trademark will not lead to the reversal of a CNIPA Trademark Review and Adjudication Division (TRAD) decision. This paragraph clarifies that the relevant point for fact-finding is the date on which a challenged TRAD decision was made, rather than the date when substantive review is conducted by the court.

Comment: This provision introduces unified rules for the “generally mandatory” (“Yi Ban Ying Dang”/“一般应当”) suspension of procedures in administrative prosecution cases before the CNIPA and TRAD. It confirms that the CNIPA and TRAD should generally suspend their review of cases when the status of a cited mark is contingent on the outcome of a parallel prosecution or litigation matter.

Under current law, the provisions that address the suspension of review for trademark cases stipulate that a suspension decision is discretionary, and this has resulted in inconsistencies in the issuance of suspension grants. Official statistics indicate that the rate of reversal in TRAD cases involving “changes of circumstances” (“Qing Shi Bian Geng”/“情势变更”) accounts for 44.3% and 60.1% of the total reversed cases in 2019 and 2020, respectively. The moderately high reversal rate for TRAD cases is illustrative of the lack of clear and consistent guidelines for suspension grants under current practice.

In June 2023, the CNIPA circulated an explanation of the “Standards for Suspension of Review Cases” (CNIPA 2023 Standards). The CNIPA 2023 Standards introduced a principle of “necessity” (“Bi Yao”/“必要”) for suspending review of cases before the TRAD, echoing language proposed in the CNIPA 2023 Draft TML. Before issuance of the standards, the TRAD had rarely accepted suspension petitions, despite efforts made by an applicant to clear the registry in parallel actions prior to the filing of a trademark application. Because the current “necessity” standard is discretionary, actual suspension practice under the standards remains inconsistent.

If a new Trademark Law introducing uniformed rules for suspension comes into effect, it could give proprietors better tools to effectively secure trademark rights through the use of parallel proceedings to clear third-party blocking marks from the registry, and to maintain priority filing dates while mitigating the risk of additional third-party marks jumping the queue. That said, with the abolition of the “change in circumstances” principle under Paragraph 2 of this article, industry groups will be pushing for further clarification regarding the exceptions contemplated by the proposed “generally mandatory” rule for approving requests of suspension of a trademark review proceeding.

• Article 56 (Cancellation of Registered Trademark): This article expands on Article 49 of the current law by introducing an ex officio cancellation mechanism, allowing the CNIPA to initiate a cancellation proceeding against a registered trademark if it is used in a manner that misleads the public. For a registered trademark that has become generic or has not been used for three consecutive years, any person may file to cancel the trademark under Paragraph 1 of Article 56 (Paragraph 2 of Article 49 of the current law), and the CNIPA may also cancel such a registration ex officio under Paragraph 2 of Article 56.

Comment: Consistent with the CNIPA 2023 Draft TML, the TML Draft Amendment retains the proposed addition (reinstatement) of an ex officio cancellation for genericness and nonuse (previously provided in Article 44 of the 2001 Trademark Law), reversing the prior shift to cancellation only upon application. In addition, the TML Draft Amendment introduces “misleading use of a registered trademark” as a basis for canceling a registered trademark. It also confirms that the trademark enforcement authorities may first order rectification within a specific time period, impose penalties for noncompliance (e.g., a fine of up to RMB 50,000), and, in serious circumstances, the CNIPA can cancel the registration ex officio.

These proposed changes are clearly intended to strengthen oversight of trademark use and align with the trend toward stricter standards for administrative enforcement of the improper uses of registered trademarks. Under the 2021 Criteria for the Determination of General Trademark Violations issued by the CNIPA, local Administration for Market Regulation (AMR) actions have primarily focused on registered trademarks that are misleading as to the features/characters or the origin of the designated goods or services (rather than trademarks that infringe specific third-party rights). It is unclear whether the proposed “misleading use” standard would be limited to uses that are false and misleading as to the relevant features/characters or origin of designated goods or services or whether it would also extend to uses that are misleading as to source and affiliation (e.g., prior rights conflicts).

Substantive Amendments

• Article 20 (Protection of Well-known Trademarks): This article expands the protection extended to unregistered well-known marks under current Article 13. Paragraph 2 of Article 20 establishes unified cross-class protection for both registered and unregistered well-known trademarks.

Comment: This article establishes that the scope and strength of protection extended to well-known trademarks is now wholly contingent on the degree of fame and likelihood of consumer confusion (Paragraph 1, exclusively for identical or similar goods) or dilution (Paragraph 2, applicable to dissimilar goods) rather than the registration status of a trademark. To align with this unified standard for registered and unregistered well-known trademarks, the TML Draft Amendment replaces the terms “registrant of a well-known trademark” (e.g., Article 13 of the current law) and “owner of a well-known trademark” (Article 45 of the current law) with “holder of a well-known trademark.” In addition, the draft expands the factors for recognizing well-known trademarks to include the nature and geographic scope of trademark use. Also noteworthy is that the controversial “widely well-known to the general public” standard proposed in the CNIPA 2023 Draft TML has been abandoned.

• Article 48 (Quarantine Period for Cancelled Trademark): This article introduces a one-year filing embargo for the filing of trademarks by third parties that are the same as or similar to registered trademarks that are deregistered by the trademark proprietor.

Comment: Article 50 of the current law and Article 73 of the Implementing Regulations of the current law provide for a one-year embargo on the filing of trademarks that are the same as or similar to trademarks that are revoked, invalidated or expired. The primary intent for the embargo rule in current practice is to prevent consumer confusion, but it has occasionally had the undesired effect of preventing rightful brand owners from timely registering their trademarks after successfully removing third-party pirate marks from the registry in invalidation proceedings. The revised language clarifies that the “quarantine” period is calculated as one year after the publication of the cancellation, and it appears to address some brand owner concerns by affirming that the one-year embargo rule would no longer apply to invalidated trademarks.

• Article 53 (Administrative Penalties for Bad Faith Filings): Article 53 of the draft amendment provides a basis for the issuance of administrative penalties against the applicants of trademark applications filed in bad faith (similar to Paragraph 4 of Article 68 in the current law) that result in “adverse effects” (“Bu Lang Ying Xiang”/“不良影响”). It provides that the administrative enforcement authorities (i.e., the AMRs) may issue warnings and impose fines of up to RMB 100,000 on applicants who (1) knowingly file trademark applications for prohibited signs (Article 15); (2) file trademark applications that clearly exceed normal business needs and are not intended for use, or through deception or other improper means (Article 18, consolidating Articles 4 and 44.1 of current law); or (3) deliberately file trademark applications that infringe upon the rights of well-known trademarks (Article 20), that are preemptive registrations of marks by an agent or a business associate (Article 21) or that harm the legitimate prior rights and interests of others (Article 23).

Comment: Paragraph 4, Article 68, of the current law provides a mechanism for the issuance of administrative fines for trademarks that are filed in bad faith, but it is ambiguous as to the amount of such fines and whether such fines should be issued directly against applicants rather than an applicant’s trademark agent (as Article 68 of the current law primarily addresses the circumstances in which sanctions can be imposed against rogue trademark agencies). The proposed language of Article 53 would appear to address ambiguities in current practice and provide a clear basis for sanctioning applicants who file marks in bad faith, a practice that has become more commonplace in the past five years but has been based primarily on provisions of the 2019 Several Provisions on Regulating Applications for Trademark Registration circulated by the State Administration for Market Regulation (SAMR 2019 Provisions). Also noteworthy is that the proposed maximum fine of RMB 100,000 is higher than the cap of RMB 30,000 set under Article 12 of the SAMR 2019 Provisions. The determination of “adverse effect” under this article remains ambiguous and will require further clarification.

• Article 74 (Damages Calculation): Article 74 addresses the calculation of damages in cases of trademark infringement but no longer prioritizes actual losses over the profits obtained from infringement. It also explicitly provides that the damages calculated on the basis of actual losses, infringer profits, royalty multiples or statutory damages should also include “the reasonable expenses incurred by the right holder” in addressing the infringement.

Comment: Article 63 of the current law provides an overview of the ways in which damages for infringement can be calculated. It prioritizes a determination of actual losses followed by a determination of the profits obtained from infringement. Article 74 of the TML Draft Amendment now places actual losses and infringer profits on an equal footing, aligning the damages calculation method with the revised Copyright Law, Patent Law and Anti-Unfair Competition Law. Additionally, the term “malicious” (“E Yi”/”恶意”) referenced in the current law has been changed to “intentional” (“Gu Yi”/“故意”), bringing the language of the Trademark Law in line with the language of the PRC Civil Code, Patent Law, Copyright Law and Anti-Unfair Competition Law. Furthermore, it provides that the calculation of damages for infringement should include additional reasonable costs incurred to address the infringement (e.g., attorney fees, notary fees and expenses associated with collecting evidence of infringement). These costs are distinct from compensatory losses directly resulting from infringing acts. In practice, it is challenging for rights holders to obtain evidence of infringer profits or actual market loss, leading to a frequent application of statutory damages, which were originally intended as a supplementary measure. The proposed changes could offer more consistent and practical guidance for the recovery of reasonable enforcement expenses by rights holders.

• Article 78 (Civil Liability of Malicious Litigation): Article 78 of the TML Draft Amendment provides a civil cause of action against any party that pursues a trademark litigation in bad faith and causes losses to the other party.

Comment: The recognition of civil liability for malicious litigation has become well established in recent judicial practice. The principle prohibiting the abuse of trademark rights was first established in a 2014 Supreme People’s Court (SPC) Guiding Case—No. 82 SPC Guiding Case, “Ellassay Case,” (2014) Min Ti Zi No. 24—in which the SPC upheld a noninfringement defense based on abuse of trademark rights. Article 78 of the TML Draft Amendment explicitly provides a legal basis for parties affected by such conduct to seek remedies for malicious litigation (also see Paragraph 1, Article 9 of the TML Draft Amendment). This provision would also, arguably, give affected parties a mechanism for recovering the legal cost and other reasonable expenses incurred in responding to or resolving infringement claims filed in bad faith. Additional guidance will, of course, be necessary to ensure effective rights protection and to materially deter the abuse of rights.

Articles 53 (administrative sanctions against bad faith filers) and 78 (counterclaims in response to malicious litigation), along with the agency-related provisions in Articles 64, 66 and 67 of the TML Draft Amendment, set out a comprehensive approach to deter bad faith trademark filings and litigation by applicants and their agencies. These measures range from administrative oversight and sanctions to civil remedies, ensuring that rights holders have a variety of enforcement options and that illegal agencies are held to account.

As suggested above, some of the revisions introduced in the TML Draft Amendment would be significant improvements on the current law and would introduce desirable changes to current practice, including new mechanisms for addressing long-standing issues of trademark piracy through administrative penalties and civil liability, as well as the establishment of a more robust “use in commerce” requirement for maintaining registrations, thereby mitigating risks of adverse public effects. With the pace of deliberations accelerating, stakeholders anticipate the promulgation of a newly amended Trademark Law could occur as early as mid-2026. Stay tuned!