The trademark exclusive right is the exclusive civil right that a trademark registrant enjoys over its registered trademark. Under Article 3 of the Trademark Law, a trademark approved for registration by the CNIPA is a registered trademark, and the trademark registrant enjoys the exclusive right to use it, protected by law.
Content of the Right
The trademark exclusive right has two dimensions: first, the right to use—the registrant has the right to use the registered trademark on the approved goods or services and to affix the ® symbol; second, the right to prohibit—the right to prevent others from using identical or similar trademarks on the same or similar goods. The scope of the prohibition right is slightly broader than the right to use: the right to use is strictly limited to the approved goods, while the prohibition right extends to similar goods and similar signs. This is a unique feature of trademark protection and the core advantage of a registered trademark over an ordinary unregistered one.
Boundaries of the Right
Under Article 56 of the Trademark Law, the exclusive right to use a registered trademark is limited to the trademark as registered and the goods as approved. This implies two boundaries: at the sign level, the registrant must not alter the distinctive features of the registered trademark on its own and still use it as a registered trademark; at the goods level, use beyond the approved items is not protected by that registration, and where protection is needed on new goods, a separate registration application must be filed.
Creation and Duration
The exclusive right arises from the date the registration is approved (the date of the registration publication); for trademarks approved after opposition proceedings, under Article 36, it runs from the date the three-month preliminary approval publication period expired. Under Article 39, a registered trademark is valid for ten years from the date the registration is approved, and may be renewed indefinitely upon expiry, each renewal also lasting ten years—as long as renewals are kept up, the trademark exclusive right can subsist permanently.
Ways of Exercising the Right
- Own use: using the registered trademark in the production, sale, and promotion of the approved goods;
- Licensing: licensing others to use the trademark through a trademark license contract, with recordation;
- Assignment: assigning the exclusive right in whole to another party, subject to approval by the CNIPA;
- Pledge: pledging the exclusive right for financing, with pledge registration.
Loss of the Right
- Failure to renew upon expiry of the validity period leads to cancellation of the trademark;
- Non-use for three consecutive years without justification allows anyone to apply for revocation;
- Where the trademark is declared invalid for violating absolute grounds or infringing prior rights, the exclusive right is deemed never to have existed;
- Where the registrant alters registered matters such as its name or address on its own and fails to correct within the ordered time limit, the trademark may be revoked.
Relationship with the Registration Certificate
The registration certificate is the credential of the exclusive right, not the right itself; the status of the right is determined by the CNIPA's register. Holding a certificate while the trademark has been cancelled, revoked, or declared invalid confers no exclusive right; if the certificate is lost while the right subsists, a reissue can be requested or the electronic certificate re-downloaded—the right is unaffected by the physical state of the certificate.
Practical judgment behind these concepts depends on the individual case. Before proceeding, you may book a recorded agent through MyTMBee for targeted analysis.