Whether revocation of the certificate of incorporation will
result in deprivation of the capacity of trademark owners as well
as the trademark rights depends on the nature of the trademark
The term "trademark owners" refer to any individuals,
legal entities or other organizations that enjoy trademark rights
under the law. Trademark owners include original owners and their
successors. According to Article 9 of the amended PRC Trademark
Law, the eligible trademark applicants are defined as
enterprises, institutions, social organizations, privately or
individually-owned businesses, individual partnerships, foreign
individuals and foreign enterprises.
The privately or individually-owned business is a special type
of legal person. In accordance with the General Principles of
the Civil Law of the PRC, the privately or individually-owned
business takes on unlimited liability and the proprietor as well as
its privately or individually-owned business shares the same rights
as that of property rights. So, the proprietor can enjoy the rights
of the registered trademark even if the trademark is registered in
the name of the privately or individually-owned business. Under
such circumstances, the revocation of the business license of the
privately or individually-owned business will not give rise to the
cancellation of the registered trademark and the proprietor will
have rights to the registered trademark. The above view has been
confirmed in the following case: He Shuxian (a person who owned a
privately or individually-owned business) vs. Beijing
Wangshunge Food Co., Ltd. and Wangshunge Business Unit (Beijing)
However, it is not applicable to enterprises in a broader sense.
In a recent case examined by the Trademark Review and Adjudication
Board (TRAB), the revocation of the certificate of incorporation
was cited against the application for a trademark. The TRAB
confirmed that the revocation of the certificate of incorporation
means a deprivation of the capacity to carry on business
operations. In addition, in accordance with the PRC Company
Law and Regulation on Administration of Company
Registration, even if the request for cancellation of the
company may not have been filed, the capacity is nonetheless void
due to the revocation of the certificate of incorporation.
Consequently, neither the capacity nor the rights to the registered
trademark can be determined since there is no explicit successor
who will receive the applied for mark once it is properly
registered. To ensure the stability of the exclusive rights of the
trademark, the TRAB confirmed that a revocation of the certificate
of incorporation results in the deprivation of trademark rights in
an appeal against the TMO's decision on opposition,
Trussardi vs. Wenzhou Kaiji Leatherware Co., Ltd.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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