Recently, for the sake of strengthening the governance, supervision and management of the trademark agency industry, and guiding the trademark agency to operate in accordance with the law, the State Administration for Market Regulation (hereinafter referred to as the SAMR) and China National Intellectual Property Administration (hereinafter referred to as the CNIPA) have successively issued a series of relevant regulations and notices, which has caused a huge shock in China's trademark agency industry and will have a far-reaching impact.
1） The Provisions on the Supervision and Administration of Trademark Agency was issued and implemented
First, the Provisions on the Supervision and Administration of Trademark Agency (hereinafter referred to as the Provisions), which had been discussed for more than two years, was finally issued by the SAMR and implemented on December 1, 2022. The Regulation has 43 articles in total, including five parts: "General Provisions; Registering of Trademark Agency; Code of Conduct for Trademark Agency; Supervision of Trademark Agency; and Handling of Illegal Acts of Trademark Agency". Specifically, the Regulation clarifies the following aspects:
1） Stipulate the code of conduct for the agency to engage in trademark agency. The concrete contents include the basic principles of handling agency business, the obligations to be performed and the publicity of basic matters of the agency, the trademark agency is required to establish and improve the business management system and business archives system, and strengthen the professional ethics and professional discipline education of employees.
2） Strengthen the supervision of the agency. The national market supervision authority and the national intellectual property management authority are required to share information on the supervision of the agency and detail the relevant provisions on the supervision of trademark agency.
3） Improve the legal liability of trademark agency for illegal acts. The illegal acts of trademark agency are specified in detail in combination with practice to enhance operability. In particular, it also clarifies the illegal situation of engaging in trademark agency business through the Internet.
2） Revision of application form
Secondly, CNIPA issued a notice to uniformly revise the current 49 different formats of trademark applications. Specifically, for the first time, the description of agency commitment shall be included in the prominent position on the front page of all trademark applications. Its contents are as follows.
“The applicant, the agent and the agency confirm that they know that it is dishonest to apply for malicious trademark registration, submit false materials or conceal important facts to apply for administrative confirmation. The applicant, agent and agency promise that they will follow the principle of good faith, handle trademark application matters for the purpose of use, and the matters declared and the materials provided are true, accurate and complete. The applicant, agent and agency know that if they make false promises or fail to fulfill their promises, they will bear the adverse consequences such as the punishment for dishonesty in credit management.”
All new formats have been applied since December 1, 2022.
3） Re-registering of trademark agency
Subsequently, CNIPA issued an announcement stating that the registered trademark agencies (about 72,500 by December 1, 2022) will re-register in accordance with the requirements of the Provisions. A trademark agency that needs to re-register shall submit an application for re-registering between January 1, 2023 and February 28, 2023. CNIPA shall complete the review procedure of re-registering before March 31, 2023. The period of validity of the re-registering is three years, which is calculated from the date of issuing the notice of approval of the re-registering.
4） Analysis
The purpose of successive actions by the SAMR and CNIPA is very clear, which exactly targets and focuses on the problems that are relatively negative on the current trademark agency services, such as the low threshold of access to the trademark agency industry, excessive trademark agencies, non-standard operation and management, as well as uneven service levels.
The official regulatory authority clearly expressed its determination to improve the overall service quality and development level of the trademark agency service industry from the source by further refining the provisions on agency personnel, management system, code of conduct, agency commitment, etc. In particular, the official hopes to establish and improve the trademark agency filing system, improve the filing procedures, and clean up the agencies that have not carried out business for a long time but still occupied industry resources, so as to achieve the goal of forming a benign development pattern of the industry. Frankly speaking, although the total number of trademark applications in China is large, the number of 72,500 trademark agencies is indeed too exaggerated. In fact, it is also the case that a considerable proportion of agencies basically do not represent any cases or the number of cases represented is extremely small. In order to obtain the source of cases, some agencies solicited business through vicious competition that could not guarantee the agency quality. By re-registering and strictly regulating agency behavior, it is believed that the number of trademark agencies may be reduced by at least one third in the next three-year registering cycle.
The issuance of the above-mentioned relevant Provisions is of far-reaching significance and is also welcome for trademark applicants. After all, these strict regulations can effectively improve the quality of trademark agency services, promote the healthy development of the trademark agency industry, create a standardized, orderly, fair competition, and dynamic trademark agency market environment, which can provide more favorable protection for trademark obligees to obtain and maintain their own legitimate rights.
