On December 22 2025, the draft of the proposed fifth amendment (the Draft Amendment) to China’s Trademark Law (TML) was submitted to the Standing Committee of the National People’s Congress for its first reading, and is open for public comment until February 9 2026. This marks a significant step toward formal enactment, following the release of the initial draft in 2023, and indicates that the amendment is on track for official promulgation within the year.
Key Changes in the Draft Amendment
- Protection for Movement Marks (Article 14). Movement marks are now eligible for trademark protection, aligning the law with new digital realities.
- Bad-Faith Filings with No Intention to Use (Article 18). Article 4 of the existing TML prohibits bad faith filings with no intention to use in principle. The new amendment now explicitly prohibits applications that are “not intended for use” and “clearly exceed the needs of normal business operation”, and codifies the existing prohibition against filing “in a deceptive manner or by other improper means”, which is currently a basis for invalidation.
However, it is customary for brand owners to file defensive applications; PRC companies commonly file across all 45 classes. Whether this type of defensive filing will now be prohibited remains uncertain. Moreover, violation of Article 18 will expose applicants to fines of up to RMB 100,000 (see below). - Malicious Trademark Filings (Article 53). Under the Draft Amendment, malicious trademark filings are subject to fines of up to RMB 100,000. Such filings are specifically defined to include: (1) knowingly applying for a mark that is prohibited for registration under Article 15, e.g., signs that are related to the state or public authorities such as flags, emblems or official signs; signs that are deceptive and could easily mislead the public as to the quality or origins of the goods; (2) applications that are beyond normal business needs, are deceptive, or are otherwise improperly filed (Article 18); (3) intentionally violating Article 20 (imitating well-known marks), Article 21 (bad faith filings by an agent, or where there are prior dealings with the brand owner), or Article 23 (prejudicing a third party’s prior legitimate rights).
While we welcome stronger measures to deter malicious filings, clarification on what constitutes malicious behaviour is required to provide more certainty for genuine brand owners. Key uncertainties include the status of defensive applications (as discussed above), and whether re-filing a mark previously rejected on absolute grounds could be deemed a malicious filing, given the applicant’s knowledge from the prior rejection. - Broadened Well-Known Trademark Protection (Article 20). The scope of cross-class protection against imitation on dissimilar goods or services is being expanded. Such protection no longer requires the well-known mark to be registered in China. This welcome change directly addresses a key hurdle for brand owners who have strong reputations but have been unable to obtain trademark registration in China.
- Refinement of the Scope of Prior Rights (Article 23). The draft amendment strategically replaces “prior rights” with “prior legitimate interests”, both codifying and potentially expanding the scope of protection. The existing TML protects prior rights including trade names, distinctive brand identifiers, the packaging or decor of influential goods or services, etc. The revision potentially expands protectable subject matter, creating flexibility to cover emerging rights and interests, such as online identities e.g., social media accounts, or names and images of virtual characters.
- Shortened Opposition Period (Article 35). The opposition period is shortened from 3 months to 2 months, which will expedite the registration process.
- Examination Suspension and Exclusion of New Evidence on Appeal (Article 40). The Draft Amendment specifies that examination shall normally be suspended where the determination of prior legitimate interests is contingent on another proceeding. This eliminates a strategic burden, saving brand owners the expense of repeated filings to maintain the place in the queue for registration. However, this strict rule may result in tactical suspensions, creating an additional practical burden for examiners, and more protracted proceedings.
In addition, the Draft Amendment also requires administrative court appeals to be decided based on the factual record existing at the time of the appealed decision. This will prevent appellants from introducing new evidence, arising from later discovered facts, to overturn review decisions. This could have a significant practical impact, as some brand owners have successfully challenged CNIPA review decisions based on additional evidence, collected subsequently but demonstrating fame prior to a conflicting mark’s filing date, bad faith, etc. The practical challenges arising from this change warrant careful consideration. - Punishment for Improper Use (Article 56). Improper use has been expanded beyond the unauthorized alteration of the trademark itself or the registrant’s details and now includes any use that misleads the public. However, the specific criteria for what constitutes “misleading” remain undefined. Brand owners should pay attention as the new amendment also provides for fines up to RMB 50,000 if a registrant fails to rectify the misuse after being ordered to do so by the enforcement authority.
- Ex Officio Cancellation Authority (Article 56): The new draft empowers the authority to cancel trademark registrations that have become generic or that have not been used for three consecutive years. However, it remains unclear how, or if, they will proactively investigate and cancel registrations on their own initiative.
- Revised Damage Calculation (Article 74). The method for calculating damages has been revised. Notably, an infringer’s profits are now an alternative basis for calculation on equal footing with the rights holder’s actual losses, rather than a secondary option. Furthermore, the amended draft now specifically requires that the compensation amount include reasonable expenses. In current judicial practice, such expenses are often encompassed within the statutory damages figure. The new amendment appears to mandate that they be calculated separately and added to the base damages. We will see how the courts implement this rule.
- Liability for Malicious Litigation (Article 78).The draft amendment explicitly stipulates that a party found to have engaged in malicious trademark litigation shall be subject, not only to administrative penalties, but will also to civil liability to compensate the affected party for any damages incurred.
The Draft Amendment addresses key practical challenges that have emerged since the law was last amended in 2019, including trademark hoarding, malicious trademark registration and litigation, and constantly evolving forms of improper trademark use. Compared to the initial 2023 draft proposal, the current draft is more pragmatic. We will continue to monitor developments closely and provide updates regarding the law’s final enactment.
For further information, please contact:
Tracy Li, Partner, Deacons
tracy.li@deacons.com
