Trademark Law and AUCL Revisions Passed Into Law

Jill Ge of Clifford Chance has brought to my attention that the changes proposed  to the Trademark Law and Anti-Unfair Competition Law that I reported on April 21, have now been passed at the 10th session of the Standing Committee of the 13th National People’s Congress on April 23, 2019. There does not appear to have been the usual process for public comment on these changes.  This was fast!

Here is a link to the reporting of this news, a pdf of the article as it appeared on that website, as well as a machine (google)  translation of the article.  I wanted to distribute these to readers quickly in the interest of time.  If any readers have more polished translations that I can use, please send them to me.

No doubt, these changes are intended to help address US concerns over “forced technology transfer”, “IP theft” and related issues.  A significant concern I have about these positive legislative changes is whether they will be accompanied by the requisite transparency of the implementing and enforcing agencies.  Because trade secret cases in particular often include confidential technical or business information, they are often not reported by the courts in public databases.  In recent months, there has also been a reported slowdown in the adjudication of foreign-related cases in the courts, which may also affect reporting on IP litigation by the courts.  Unless there is comprehensive reporting of this information, it will be difficult to assess the problems they had sought to address, their impact, and their compliance with expectations of the NPC, rightsholders or foreign governments.

These legislative changes are also timed with events around IP Week in China, which typically includes releases of statistical data on patent and trademark prosecution, significant cases, policy initiatives, etc.  In light of other pending legislative changes (such as the patent law, the drug administration law, etc.), the government reorganization, the new IP court, a reported “surge” in IP litigation in China in 2018, and US-China trade relations, we can expect that there will be other useful information released in the days ahead.

Update of April 25, 2019:  Here are the NPC Observer’s comments on the revised laws as well as Jim Pooley’s observations on the new AUCL amendments in the context of international developments.

2 replies »

  1. Here’s a quick reaction from Joe Simons of SIPS ( on the TM aspects on the TM law revisions:
    Allows the TMO to reject bad faith filings where there was no intent to use. (Art.4). Few countries actually have the legislation and/or procedures in place to reject an application due to bad faith. So well done, China.
    Bad faith filers and trademark agents may be subject to warnings and fines (presumably by local MSBs) (Art. 68). This is a global first, based on our INTA Task Force research.
    Courts get power to impose fines against parties that file “malicious trademark litigations” (also 68). This could well mean that a party that registers a mark in bad faith and then files a civil action against the victim brand (or its distributor or supplier) could ultimately be fined for having done so – once of course his registration is cancelled on the basis of bad faith. Creative and (again) ground-breaking from a global perspective.
    Fines and compensation are up, and in serious cases, goods and production equipment can be confiscated. These provisions need a closer look.


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