A priority right means that when an applicant files a registration application in China for the same trademark and the same goods within a prescribed period, the applicant may claim the first filing date or the first exhibition date as the "prior date." It pushes the time benchmark for assessing priority status forward, making the first-to-file assessment more favorable. China's Trademark Law establishes two types of priority, corresponding respectively to foreign filings and exhibition at international exhibitions.
The First Type: Foreign-Filing Priority (Article 25)
Where a trademark registration applicant, within six months of filing a trademark registration application for the first time in a foreign country, files another application in China for the same trademark on identical goods, the applicant may enjoy priority in accordance with an agreement signed between that foreign country and China or an international treaty to which both are parties, or on the principle of mutual recognition of priority.
Constitutive points:
- Time: within six months of the first filing of the trademark registration application;
- Mark and goods: the same trademark and identical goods—extension to similar goods is not permitted;
- Subject: the applicant is the same as the first applicant or its successor in title;
- Basis: an agreement between the two countries, an international treaty to which both are parties (the priority period for trademarks prescribed by the Paris Convention for the Protection of Industrial Property is six months), or the principle of mutual recognition of priority.
Procedurally, a claim of priority must be made in a written declaration when the trademark registration application is filed, and a copy of the first-filed application documents must be submitted within three months; failure to make the written declaration or to submit within the deadline is deemed a waiver of the priority claim.
The Second Type: Exhibition Priority (Article 26)
Where a trademark is used for the first time on goods exhibited at an international exhibition sponsored or recognized by the Chinese government, the applicant for registration of the trademark may enjoy priority within six months of the date the goods were exhibited.
Likewise, a written declaration must be made when the application is filed, and within three months proof documents must be submitted, including the name of the exhibition at which the goods were exhibited, evidence of use of the trademark on the exhibited goods, and the exhibition dates; failure to make the written declaration or to submit the proof documents within the deadline is deemed a waiver of the priority claim.
This provision has direct value for enterprises exhibiting at trade shows: a first public use at an exhibition can be converted into a six-month "first-move period," allowing domestic filings to be arranged calmly after the show without fear of being preempted by others during the exhibition period.
The Practical Effect of Priority
- Opposing later applications: priority is assessed against the priority date; identical or similar applications by others after the priority date are disadvantaged;
- Stabilizing registration: in refusal review, opposition, and invalidation proceedings, the priority date is an important temporal coordinate for assessing prior rights;
- Linking overseas layout: whether going overseas first and entering China later, or filing in China first and going overseas later, priority can "pull back" the filing date to the date of the first application.
Practical Points and Common Pitfalls
- The declaration must be made simultaneously with the application: the written declaration must be made when filing; it cannot be added afterwards;
- Three months is a hard deadline: copies of the application documents or exhibition proof documents must be completed within three months; delay is deemed a waiver of priority, and no separate correction notice is usually given;
- Priority does not replace substantive examination: claiming priority does not mean registration is granted; distinctiveness and conflicts with prior trademarks are still examined under Chinese law;
- Pitfall one: believing that filing within six months automatically confers priority—both the written declaration and the proof documents are indispensable;
- Pitfall two: extending priority to similar goods—the statutory requirement is "the same trademark on identical goods";
- Pitfall three: believing any exhibition supports an exhibition priority—the statute is limited to "international exhibitions sponsored or recognized by the Chinese government."
The practical judgment behind these concepts must be tailored to the individual case; before proceeding, you may book a registered agent via MyTMBee for targeted analysis.