Q: What are the characteristics of trademark?
A: Trademark has the following characteristics:
- Differentiating its commodity or service from others
- Formed by words, graphics, letters, figures, colours or 3D symbols, and combining the fore mentioned elements
- Exclusive nature; trademark holder has the exclusive rights to the trademark, protected by law
- Intangible asset, the value of which can be determined by assessment; trademark holder may be entitled profits by transferring and licensing the using rights
Q: What marks cannot be registered as trademarks?
A: The following marks shall not be used as trademarks:
- Marks identical or similar to the name, national flag, national emblem, army flag, and medal of a country, as well as marks identical to the name of a particular place where state organs locate or the name and graph of landmark buildings
- Marks identical or similar to the name, flag and emblem of an international organisation
- Marks identical or similar to the official mark and hallmark indicating the implementation of control and security, other than the authorised
- Marks of racial discrimination
- Marks of high sounding publicity and fraud
- Marks coherent to the generic name, graph and type of the product , such as computer, pen, portfolio
- Marks directly indicating the quality, major raw materials, function, purpose, weight, quantity and other characteristics of the product
- Marks identical or similar to name or sign of Red Cross and Red Crescent
Q: What should be considered before filing an application for trademark registration?
A: Matters to be considered include:
- Whether the trademark distinguishes the applicant’s goods or services from other traders
- Whether the trademark shows the distinctiveness of the goods and services
- Whether the trademark is a generic term in that industry
- Whether the trademark is identical or similar to other trademarks
Q: What is Nice Classification?
A: Nice Classification (the “NCL”) is an international classification system to classify goods and services for the purposes of trademark registration.
Q: Can an individual apply for trademark registration?
A: Yes. Applicant can be either corporation or individual.
Q: What information is required for trademark registration?
A: It varies with each country and region. Generally, applicant’s identity documents, application form and trademark image are required.
Q: How long is to process a trademark registration?
A: It varies with each country and region, for example, 4-8 months in Hong Kong and 12-18 months in China. Generally, it takes 4-24 months to process.
Q: What is the validity period of a trademark?
A: It is 10 years in most countries and regions, except few, such as Canada (15 years) and Macau (7 years).
Q: Can the registration be renewed?
A: Yes. Generally, the validity period of a renewed trademark is 10 years.
Q: What is the right of priority?
- Entitlement of the right of priority
- An applicant may enjoy the right of priority on trademark registration for certain goods or service with a state party to Paris Convention or a WTO member state for six months after the first application submission.
- Exercise of the right of priority
- An applicant may exercise the right of priority to file the same application in another country within six months after his/her first application such that the application date of the second application may be dated back to that of the first application.
Q: What are the principles on the basis of trademark protection?
A: The adopted principles vary with each country and region. Currently, the 3 principles adopted internationally are prior use, prior application, and both of aforementioned.
Q: What are the differences between the packaging and presentation of commodity and trademark?
A: Trademark is part of the packaging and presentation of commodity; both of them are used in the packaging of the commodity. While trademark is to differentiate the producers or operator of commodity from another, presentation is to beautify commodity. A registered trademark cannot be altered, but the design style of a presentation is free to change.
Q: Does transferring trademark need an agreement?
A: Yes. It requires an application form and a trademark assignment contract, which are signed by the assignor and the assignee.