While under opposition, a trademark is in a state of preliminary approval but not yet registered. You may continue to use it as an unregistered trademark, which is not illegal in itself; however, it carries no exclusive right as a registered trademark, cannot be marked with ®, and if the opposition is upheld and registration is refused, your earlier investment may lose its basis for protection.
Legal Status
A preliminary approval announcement is merely CNIPA's expression of intent to approve registration—it is not a grant of rights. During the opposition period and the opposition examination, the trademark is not a registered trademark:
- It may be used normally as an unregistered trademark and may bear the ™ symbol;
- It must not be marked with ® or the words "registered trademark"; doing so constitutes passing off an unregistered trademark as registered and may result in penalties from the market regulation authorities;
- You cannot assert an exclusive registered trademark right based on it to complain about or sue others for infringement.
Risk Assessment of Continued Use
- Risk that the opposition is upheld: if registration is ultimately refused, the goodwill accumulated during the period cannot be consolidated into a trademark right, and investments in packaging and advertising will need to be redone under a new mark;
- Risk of infringing others' rights: if the opponent claims you infringed its earlier rights, your continued use may be used as evidence in its enforcement action—especially where the opponent does hold a prior registered trademark, your use itself may constitute infringement;
- Countervailing value: genuine evidence of your use can sometimes support your defense in return, proving that the trademark has acquired distinctiveness through use.
Practical Advice
- If your core brand is opposed, consider applying for a backup trademark at the same time to spread the risk, so that your business is not locked to a single trademark;
- When the outcome of the opposition is unclear, limit heavy-asset investment carrying the mark (mass packaging, large-scale advertising) and scale up only after registration is secure;
- Where the opponent holds genuine prior rights, have an agent assess the infringement risk before deciding whether to keep using the mark.
If you are facing the above issues, you may first handle an opposition defense on MyTMBee to confirm feasibility before deciding whether to file, avoiding blind filings that waste official fees.