Invalidation on relative grounds is the system by which a registered trademark that harms the prior rights of a specific party or conflicts with a prior trademark is declared invalid upon request by the prior rights holder or an interested party to the Trademark Review and Adjudication Board. Unlike absolute grounds, it protects the civil rights of a specific party, and therefore has two hard constraints: who may bring it, and by when.
Legal Basis and Applicable Provisions
Article 45(1) of the Trademark Law provides: a registered trademark that violates Articles 13(2) and (3), 15, 16(1), 30, 31, or 32 of this Law may, within five years of the date of registration, be challenged by the prior rights holder or an interested party with a request to the Trademark Review and Adjudication Board to declare the registered trademark invalid; for malicious registration, the owner of a well-known trademark is not subject to the five-year limit.
The applicable provisions include:
- Articles 13(2) and (3): reproducing, imitating, or translating another's well-known trademark, where confusion or misleading of the public is likely;
- Article 15: squatting by an agent or representative without authorization of the principal's or represented party's trademark, and squatting where the applicant knew of another's trademark by virtue of a contract, business dealings, or other specific relationship;
- Article 16(1): a trademark containing a geographical indication whose goods do not originate from the region indicated by the sign, where the public is likely to be misled;
- Article 30: identity or similarity to a registered or preliminary approved trademark on identical or similar goods;
- Article 31: conflict with an identical or similar trademark applied for earlier on identical or similar goods;
- Article 32: harm to another's existing prior rights, or preemptive registration by unfair means of another's trademark that has already been used and has gained a certain influence.
The Five-Year Limit and Its Exceptions
"Within five years of the date of registration" is a fixed period. Beyond five years, even where rights were genuinely harmed, this path is no longer available.
The sole exception: for malicious registration, the owner of a well-known trademark is not subject to the five-year limit. Invoking this exception requires both conditions: the claimant is the owner of a well-known trademark, and the registrant of the contested trademark acted maliciously. Merely proving one's own trademark is well-known is insufficient; it must also be shown that the other party had subjective intent to hitchhike, free-ride, or cause harm at the time of filing—usually argued comprehensively from facts such as whether the parties had business dealings, whether excessive assignment demands were made, and whether registrations were made in bulk.
Procedure and Time Limits
After receiving an invalidation request, the Trademark Review and Adjudication Board shall notify the interested parties in writing and set a time limit for defense; the Board shall make a ruling either maintaining the registration or declaring it invalid within twelve months of receiving the request, extendable by six months in special circumstances. A party dissatisfied with the ruling may bring a lawsuit before the people's court within thirty days of receipt, and the court shall notify the opposing party in the trademark adjudication proceeding to participate as a third party.
Under Article 47, the exclusive right of a trademark declared invalid is deemed never to have existed, but infringement judgments already executed and assignment or licensing contracts already performed are in principle not retroactively affected.
Distinction from Invalidation on Absolute Grounds
- Requesting party: relative grounds are limited to prior rights holders and interested parties; absolute grounds may be invoked by any entity or individual;
- Time limit: relative grounds are in principle five years; absolute grounds have no time limit;
- Examination period: twelve months, extendable by six months for relative grounds; nine months, extendable by three months for absolute grounds;
- Remedial orientation: relative grounds protect specific rights; absolute grounds safeguard the registration order.
Practical Points and Common Pitfalls
The most common and fatal pitfall is missing the five-year limit. Where trademark monitoring is inadequate and a squatting trademark is discovered more than five years after registration, other paths—with substantially higher difficulty—are all that remain.
Two further practical notes: first, the five-year period runs from the date of registration, not the date of discovery; second, if your application is refused and the cited trademark still stands in the way, the standard play is to advance the "invalidation plus new application" combination—invalidation clears the obstacle while the new application locks in your filing date. Doing only one is inadvisable.
The application of these concepts in practice varies in detail; before proceeding, you may consult a registered agent via MyTMBee for targeted analysis.