China Completes The Fifth Amendment To Its Trademark Law: Key Changes And Remaining Debates

Background

On June 26, 2026, the Standing Committee of the National People's Congress adopted the revised Trademark Law at its second reading. This is the fifth revision of the law and a full-scale overhaul: the law grows from 73 articles in eight chapters to 87 articles in nine chapters, with a new standalone chapter on conditions for registration and a much-expanded chapter on trademark administration. The new law will take effect on January 1, 2027.

This round of amendment has been more than three years in the making. In January 2023, the China National Intellectual Property Administration first released a draft for public comments, an ambitious text of 101 articles with various aggressive proposed changes that attracted over three thousand comments. When the draft finally reached the legislature in December 2025, it had already been slimmed down to 84 articles, with several of the most debated yet exciting institutions removed. The legislative journey of the draft, in other words, tells as much about the state of the debate as the final text does. This update reviews the key changes, and devotes a separate section to the proposals that were dropped along the way.

From First-to-File Toward Genuine Use

The clearest thread running through the amendment is the effort to re-anchor trademark registration in genuine commercial use. Art. 19 refines the bad-faith filing rule of the current Art. 4: applications filed "without intent to use and manifestly exceeding the needs of normal business operations" shall be refused. Compared with the abstract inquiry into "bad faith", the new test looks to the objectively verifiable match between filing volume and business reality. Notably, the final text inserts the conjunction "and" between the two limbs, confirming that both must be satisfied — a signal that defensive filings supported by business planning are not per se targeted.

Bad-faith filing is no longer merely a ground for refusal. It entails real penalty. Under Art. 54, an applicant engaging in bad-faith filings that cause adverse effects faces a warning and a fine of up to RMB 100,000. Trademark agencies that knowingly accept such instructions share the exposure under Art. 67. Filing abusive applications thus shifts from a cost-free lottery to a sanctionable act.

The use-orientation also shows on the maintenance and enforcement side. Art. 57 keeps the familiar three-year non-use cancellation, but now allows the trademark office to cancel idle registrations ex officio, with detailed measures to follow. Art. 78 adjusts the non-use defense in infringement damages claims: the registrant must prove use within three years before the infringement occurred, rather than before the lawsuit was filed, closing the door on evidence manufactured on the eve of litigation. Separately, Art. 2 now expressly provides that use of a mark via the internet and other information networks constitutes trademark use, a late but welcome codification added at the second reading.

Stronger, but Better-Calibrated, Protection

For brand owners the amendment brings several concrete benefits. Motion marks are explicitly included as registrable trademarks. The well-known mark regime is visibly upgraded. Art. 21 drops the requirement that a mark be registered in China to enjoy cross-class protection, so unregistered well-known marks may now block dissimilar-goods free-riding as well, with the right and sufficient set of evidence.  Art. 69 introduces an outbound mechanism: where a party needs to prove in foreign proceedings that its mark is well known in China, the trademark authority may issue a confirmation — a practical piece of official backing for Chinese brands going global.

Damages rules are recalibrated in Art. 77. Actual loss and infringer's profit now sit in parallel as alternative bases at the right holder's choice, instead of in strict sequence; punitive damages of one to five times are triggered by "intentional" rather than "malicious" infringement, aligning the wording with the Civil Code.

At the same time, the legislature was careful not to let protection expand without boundaries. Art. 73 substantially enlarges the fair use provision, most importantly by codifying nominative use: using another's registered mark merely to indicate the purpose, compatible objects or application scenarios of one's own goods, or to state their true source, is permissible unless likely to cause confusion. Repair services, spare parts suppliers, second-hand dealers and review platforms finally have a statutory anchor. In the same spirit, Art. 81 targets abusive litigation, though the final text narrows it to suits brought through "malicious collusion or unilateral fabrication of basic facts" — a formulation adopted at the second reading to reassure right holders that ordinary, even aggressive, enforcement will not be second-guessed as "malicious".

Procedure and Administration

On procedure, the most consequential change for practitioners is the shortening of the opposition period from three months to two (Art. 36), with the registration-effective date advanced accordingly. Watch services and internal decision chains will need to speed up, although the three-month window for supplementing evidence after filing an opposition remains. Other procedural additions include withdrawal of review requests, voluntary surrender of registrations with a one-year quarantine against third-party refiling, and the recognition of retrievable electronic data messages as written form.

Trademark agencies come under a much tighter regime now— recordal requirements, duty-of-care obligations, conflict-of-interest rules, personal liability of practitioners, and fines up to RMB 200,000 — extending, for the first time, to the handling of outbound filings for domestic clients.

The Proposals That Did Not Survive

Perhaps the most telling part of this legislative exercise is what was taken out. Four institutions proposed in the 2023 draft disappeared before the first reading, and one more was deleted at the second reading. These were, almost without exception, the most aggressive — and most debated — elements of the reform package.

Use commitments and five-year statements of use

The 2023 draft required applicants to undertake to use, or intend to use, the applied-for mark (Art. 5), and — borrowing from US practice — required registrants to file statements of use every five years, on pain of the registration being deemed abandoned (Art. 61). Supporters saw a systematic cure for the stockpile of idle registrations; critics pointed to the administrative burden of policing nearly 50 million registrations and the compliance cost imposed on every honest business for the sins of a minority. The obligation did not survive, and the use-orientation was instead distributed across Arts. 19, 57 and 78 as case-by-case tools.

Prohibition on repeat registration

Also gone is the general ban on re-filing the same mark for the same goods, which the 2023 draft allowed only under six enumerated exceptions (Arts. 14, 21). The provision was aimed at the notorious practice of re-filing a mark the moment it comes under non-use cancellation, effectively laundering the registration. But the exceptions proved hard to draft comprehensively, and businesses have legitimate needs to re-file — for portfolio consolidation, updated specimens or curing historical defects. Abusive re-filings are now left to the good-faith principle and the catch-all against registrations obtained by improper means.

Compulsory transfer of bad-faith registrations

For right holders, the biggest single loss is the compulsory transfer mechanism (Arts. 45 to 47 of the 2023 draft), under which a prior right holder could request that a bad-faith registration be transferred to itself instead of merely invalidated. The appeal is obvious: invalidation followed by a fresh application leaves a window in which a third party may swoop in, whereas transfer preserves the original filing date. Comparable mechanisms exist in Europe for agent-filed marks. The drafters evidently concluded that the interface with the invalidation system — the scope of goods transferred, competing prior right holders, the position of intervening licensees — needed more work. Until the idea returns, the practical workaround remains filing one's own application in parallel with the invalidation action.

Civil damages for bad-faith filings, and public interest litigation

The 2023 draft would have allowed victims of bad-faith filings to recover their losses, including enforcement costs, in a civil action (Art. 83), and would have empowered procuratorates to bring public interest suits against trademark-related conduct harming public interests (Art. 78). Both were dropped — the former for stretching tort liability to the mere act of filing, the latter for sitting uneasily with the private-right nature of trademarks. Courts have in practice awarded such damages under the general clause of the Anti-Unfair Competition Law, so the deletion narrows the statutory route rather than the remedy itself.

The second-reading deletion: change of circumstance clause

Finally, the one major deletion made between the first reading and adoption. The first-reading draft provided that, in administrative litigation over refusals and invalidations based on prior conflicting marks, courts should decide on the basis of the factual state as of the date of the challenged decision — legislatively excluding the doctrine of changed circumstances — and upgraded suspension of examination from "may" to "shall in general". Practitioners immediately objected: confirmation proceedings run for years, and cited marks frequently lapse mid-course; freezing the record would force applicants whose obstacles had disappeared into pointless re-filing loops, and would reward the strategic warehousing of zombie citations. The adopted text deletes the frozen-record clause altogether and reverts suspension to "may", returning the issue to judicial discretion under the existing judicial interpretation and guidelines. This deletion is the right call: the question calls for case-by-case equity, not a statutory hard rule.

Comments

Measured against the 2023 draft, the adopted law may look modest, with the most aggressive proposals taken out in the course. Measured against the 2019 law, it is still a substantial step forward. Over more than three years of drafting and consultation, competing interests — brand owners, platforms, agencies, administrative and judicial authorities — were heard, and the result is a set of useful, incremental innovations: an objective bad-faith standard backed by administrative penalties, cross-class protection for unregistered well-known marks, codified nominative fair use, recalibrated damages, and a first statutory toolkit for outbound brand protection.

The more aggressive proposals — periodic use statements, the repeat-registration ban, compulsory transfer, civil liability for bad-faith filings — were set aside, in most cases because the timing was not ripe or the debate not yet thorough enough, rather than because the underlying problems have gone away. Idle registrations, abusive re-filings and the plight of the genuine prior user will keep generating cases, and those cases will keep testing the limits of the individual tools the new law provides. One would expect the implementing regulations, examination guidelines and judicial interpretations that must now follow — and, in due course, the next round of amendment — to pick up where this one left off. For now, the sensible course for brand owners is to adapt to the new tempo: keep use evidence systematically, watch the shorter opposition window, and make every filing explainable by reference to real business plans.

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