Bad faith trade mark applications in China : a threat to foreign investment?

Abstract: In a report provided by the European Chamber of Commerce in China, the problem with bad faith trade mark applications was highlighted. The report concluded that the current application of the law, combined with the procedural background constitutes an incentive rather than a deterrent for bad faith trade mark applications in China. The issue originates in Chinese defrauders conducting research among foreign companies with the intent of un- lawfully registering their trade marks in China. Since China apply a ‘first-to-file’ system, un- registered trade marks enjoy very little protection. Companies, and foreign companies in particular, are therefor often forced to rebuy their trade marks from the bad faith filers. The Chinese government are, however, not blind to this issue and recently, a draft amend- ment to the Trademark Law was released, partly aimed at obstructing bad faith filing. In remains, however, to be seen whether the amendment will have any great impact on the is- sue of bad faith trade mark applications. The purpose of this thesis is to ascertain the core to the problem with bad faith trade mark applications and to establish whether the new amendment provides a solution to this issue. The thesis uses a comparative method by studying the EU approach to bad faith trade mark applications and to put it in relation to the system used in China. The analyse demonstrates that the core to the problem with bad faith trade mark applica- tions in China fall into several aspects significant to the Chinese trade mark system, primar- ily through the construction of the trade mark application process and the ineffective appa- ratus operating the Chinese judicial system. Although the new amendment is a great leap in Chinese trade mark development, it does not sufficiently address the issue with bad faith trade mark applications.