Trademark Already Registered in China? How Foreign Brands Can Regain Control

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For foreign brands looking to expand into China, discovering that someone else has already applied for or registered “your” trademark can be both frustrating and strategically disruptive. Because China follows a strict first‑to‑file trademark system, prior filings, whether made by legitimate commercial partners or professional trademark squatters, can directly affect brand launch, distribution planning, and long‑term IP enforcement.

Fortunately, encountering a prior filing does not mean the brand is out of options. China’s trademark regime provides multiple legal and commercial mechanisms to address improper or conflicting registrations. This article outlines how foreign enterprises can assess the situation and choose the right strategy for protecting their brands in China.

Understanding China’s first-to-file system

China adopts a strict first-to-file principle, under which trademark rights are generally granted to the party that first files an application, regardless of prior use elsewhere. As a result, foreign brand owners who delay filing in China may find their marks pre-emptively registered by distributors, business partners, competitors, or professional trademark squatters.

However, the first-to-file system is not absolute. Both the Trademark Law and court practices include various remedies to address improper or conflicting prior filings, provided that the factual and legal grounds are carefully assessed.

Preliminary assessment: Key questions to ask

Before taking action, brand owners should conduct a comprehensive assessment. Key considerations include:

• Similarity of marks: Is the prior mark identical or similar to your trademark?
• Similarity of goods/services: Are the designated goods or services identical, similar, or dissimilar?
• Status of the prior filing: Is the prior mark still pending or already registered?
• Use status: Has the prior registrant actually used the trademark?
• Relationship with the filer: Does the prior registrant have any relationship or prior contact with the brand owner?

These factors directly influence which legal strategy will be most effective and cost‑efficient.

Strategies when the conflicting mark is still at the application stage

Filing an opposition

If the conflicting trademark is still under examination or within the statutory publication period, the brand owner can file an opposition with the CNIPA. Common legal grounds include:

• Likelihood of confusion with your early trademark or prior application;
• Existence of prior rights, such as trade name rights, copyright, or prior use with certain influence; and
• Bad faith filing, especially when the applicant has had prior contact with the brand owner or has filed multiple similar marks.

Opposition proceedings offer an early-stage remedy but require clear evidence and well-structured legal arguments.

Parallel filing strategy

In addition to opposing a conflicting mark, brand owners may simultaneously file their own applications, including:

• Applications in other classes/subclasses
• Defensive filings
• Applications for Chinese-language versions of the brand

This keeps future options open and helps mitigate uncertainties during opposition proceedings.

Strategies when the conflicting mark has already been registered

Invalidation based on absolute or relative grounds

Where a conflicting trademark has already been registered, an invalidation request can be filed before CNIPA. Common grounds include:

• Registration obtained by fraud or other improper means;
• Bad faith filing of a trademark not intended for use; and
• Infringement of prior rights.

Invalidation actions are subject to statutory time limits in certain circumstances, making early action essential.

Non-use cancellation

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If the registered trademark has not been used for an uninterrupted period of three years, a non-use cancellation action may be initiated. This strategy is often effective against trademark squatters and requires comparatively lower evidentiary thresholds for the petitioner.

However, the registrant may defeat the action by submitting evidence of genuine use, making careful preparation necessary.

See also: Standard Use of Trademarks in China: Compliance Requirements and Legal Risks

Civil litigation and unfair competition claims

In certain cases, particularly where the registrant’s behavior misleads consumers or intentionally exploits the brand’s reputation, civil litigation or unfair competition claims may be pursued.

These are typically used as supplementary measures to administrative actions.

Commercial and negotiated solutions

Legal remedies are useful, but not always the fastest or most commercially efficient path. Alternative strategies include:

• Acquiring the trademark
• Negotiating coexistence agreements, subject to regulatory restrictions

Rebranding or localizing the mark for the Chinese market

Such solutions require careful legal structuring to avoid future enforcement and compliance risks.

Risk management and preventive measures for future filings

To reduce the likelihood of encountering prior filings in future markets, brand owners should:

• File trademarks in China as early as possible, ideally before market entry or public disclosure;
• Conduct pre-filing clearance searches;
• Register Chinese-language versions of trademarks proactively; and
• Monitor new trademark filings regularly using watch services.

Conclusion

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Have Any Questions? Reach out to our local experts

While discovering that your trademark has been filed or registered by others can complicate your China market entry, it does not eliminate your ability to protect your brand. China’s trademark system provides multiple paths, including administrative, judicial, and commercial, for challenging improper filings and regaining control.

With timely assessment, evidence-driven strategy, and professional local guidance, foreign brand owners can often regain control over their trademarks and establish a legally secure foundation for doing business in China.

Given the complexity of China’s trademark use standards and the evolving practice of the CNIPA and the courts, foreign brand owners are encouraged to seek guidance from experienced local professionals. A qualified local agent, such as Dezan Shira & Associates, can provide practical, China-specific advice on trademark use compliance, risk assessment, evidence management, and overall brand protection strategies. To arrange a consultation, please contact China@dezshira.com.

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