On 14 September 2026, the Supreme People’s Court (SPC) released two draft judicial interpretations for public consultation ahead of the revised PRC Trademark Law taking effect on 1 January 2027. Comments are due by 28 October 2026.
The first introduces Provisions on the Temporal Application of the Trademark Law (the Transitional Provisions), setting out which version of the law courts should apply during the switchover. The second amends the SPC’s Provisions on Administrative Cases Involving the Grant and Confirmation of Trademark Rights (the Grant and Confirmation Provisions)—the courts’ core rulebook for appeals against CNIPA refusal, opposition, invalidation and cancellation decisions.
Following our earlier article on the new law, this update focuses on the common thread running through both drafts: timing. Which version of the law governs a mark or dispute, and at what point should the relevant facts be fixed?
Most of the 13 proposed amendments to the Grant and Confirmation Provisions are what the SPC describes as “adaptive” (适应性), updating article references and terminology. The most consequential proposal, however, could change a familiar filing strategy: clearing a cited mark while appealing a refusal. On this point, the draft sets out a proposed amendment and an alternative, and invites public comment on both. Under the proposed amendment, if a cited mark is cancelled or invalidated while the applicant’s court appeal against CNIPA’s refusal is pending, the court could no longer overturn the refusal on that basis. Under the alternative, the court could still take that change into account up to final judgment, but a change occurring only after judgment would no longer justify a retrial on its own.
1. Which version of the law applies?
Many cases will straddle 1 January 2027. The Transitional Provisions would determine the applicable law by reference to different dates, depending on the type of case.
| Type of case | Applicable law |
| Refusal and opposition appeals | The law in force when CNIPA issued its review decision, regardless of the application’s filing date. An application filed in 2026 whose refusal review is decided in March 2027 would therefore be assessed under the new law. |
| Invalidations | The law in force when the challenged mark was approved for registration, with the relevant date determined by how the mark reached approval, as explained below. |
| Cancellations, including for non-use | The law in force when the cancellation request was filed or CNIPA initiated cancellation on its own initiative. |
| Administrative fines | The law in force at the time of the conduct, unless the new law is more lenient. |
| Infringement and other civil disputes | The new law applies to conduct occurring on or after 1 January 2027, including conduct that began before that date and continues afterwards. Earlier conduct is governed by the law then in force. |
For invalidations, the relevant approval date would be:
- Where the mark was neither refused nor opposed: the date of preliminary publication.
- Where approval followed a refusal review: the date of the review decision.
- Where approval followed an opposition: the date of the decision approving registration or the opposition review decision.
A mark preliminarily published in 2025 without a refusal or opposition would therefore remain subject to the old law, even if challenged in 2028.
Procedural legality would be assessed separately. In the administrative cases above, the law in force when CNIPA made the challenged decision would determine whether it followed the proper procedure. For example, if a mark approved in 2025 is invalidated in 2028, the substantive grounds for invalidation would be assessed under the old law, while CNIPA’s procedure would be assessed under the new law.
This approach largely follows that adopted for the 2013 amendment. The two previous transitional interpretations, issued in 2002 and 2014, would be repealed.
Opposition periods during the switchover
The draft also clarifies when the shorter opposition period begins. Marks preliminarily published before 1 January 2027 would retain the three-month opposition period. The new two-month period would apply only to marks published on or after that date.
2. What if a cited mark is removed during litigation?
Article 28 of the Grant and Confirmation Provisions covers cited marks that are cancelled or invalidated while a refusal appeal is pending.
Under the current rule, courts may take those changed circumstances into account and set aside CNIPA’s refusal. The SPC has even done so on retrial after a final judgment, in a 2015 case involving a Nike application. This has made “cancel the citation, appeal and wait” a standard strategy.
The draft sets out a proposed amendment and an alternative:
- Proposed amendment: For conflicts with prior marks under new Article 20, courts would assess the facts as they stood when CNIPA made its decision. Subsequent cancellation or invalidation of a cited mark would no longer justify overturning the refusal.
- Alternative: Courts could continue to consider such changes until final judgment, but the change alone would not justify a retrial.
The draft lists the alternative in brackets after the proposed amendment, suggesting that the proposed amendment is the SPC’s preferred approach.
Why suspension at CNIPA would become critical
If the proposed amendment is adopted, applicants would need to clear a citation before CNIPA decides the refusal review. The practical question is whether they can secure a suspension while the challenge to the cited mark is resolved.
New Article 41 allows CNIPA to suspend a refusal review pending another case, but suspension is discretionary, not mandatory. Meanwhile, CNIPA has nine months, extendable to 12, to decide a non-use cancellation. If CNIPA decides the refusal review before the cancellation succeeds, the applicant would have to refile and lose its original filing date.
The draft also leaves open how courts should treat changed facts in cases involving other grounds, such as well-known marks or bad faith. How the final interpretation addresses these issues will be important to its practical operation.
3. Other changes to protection and bad-faith standards
The remaining substantive amendments largely align the Grant and Confirmation Provisions with the new law.
Well-known marks
The dilution test would expressly cover weakening distinctiveness, tarnishing reputation and free-riding, mirroring Article 9(2) of the SPC’s 2009 Interpretation on Civil Dispute Cases Involving the Protection of Well-known Marks, so the same test would apply in registration and invalidation cases as in infringement actions.
The word “registered” would also be removed, reflecting the new law’s extension of cross-class protection to unregistered well-known marks.
The Transitional Provisions would nevertheless limit the reach of this change. Invalidation actions against marks approved before 1 January 2027 would remain subject to the old law, which required registration in China for cross-class protection.
Intentional squatting of prior-used marks
For pre-emptive registration of a prior-used mark with “a certain influence”, the wording would change from registration “by unfair means” to “intentional” registration, mirroring Article 24 of the new law.
The underlying presumption would remain unchanged: an applicant who knew or should have known of the prior-used mark would be presumed to have acted intentionally, unless it proves otherwise.
Other amendments
The draft also updates article references, extends the rule on national symbols to Party names and symbols, adds “craftsmanship and raw materials” to the deceptive-mark test, and replaces “prior rights” with “prior legitimate rights and interests”.
What should brand owners do now?
Both drafts are intended to take effect alongside the new law on 1 January 2027. No immediate action is needed at this stage.
The key issue to watch is the final approach to cited marks removed during litigation, particularly whether applicants will be able to obtain a suspension at CNIPA while clearing those obstacles. That will determine whether the familiar “cancel, appeal and wait” strategy remains viable or whether applicants face a greater risk of having to refile.
We will continue to follow the consultation and report once the SPC issues the final interpretations.
For further information, please contact:
Hank Leung, Partner, Bird & Bird
