China is one of the largest and fastest-growing markets in the world. Businesses from all over the globe are expanding into China to reach its massive customer base. But many companies make a critical mistake when entering the Chinese market—they assume that their trademarks are automatically protected just because they have been using them elsewhere. That assumption can be costly.
China follows a strict first-to-file trademark system, which means that the first person or company to register a trademark owns the rights to it, regardless of who used it first. This is different from countries like the United States, where trademark rights can be based on actual use. In China, if you do not register your trademark early, someone else can legally own it—even if you have been using it for years.
Many foreign businesses have lost control of their brand names because they waited too long to register their trademarks. Some have been forced to buy back their own brand names from trademark squatters, while others have had to rebrand entirely. Understanding how China’s first-to-file system works is essential for any business looking to operate in the country. Acting quickly can save a company from legal battles, financial loss, and reputational damage.
How China’s First-to-File System Works
China’s trademark system operates on a first-to-file basis, meaning that whoever submits a trademark application first will own the rights to that trademark, regardless of whether they have ever used it in commerce. Unlike in countries like the United States, where actual use of a trademark can establish ownership, China does not recognize prior use as a valid claim unless very specific exceptions apply. This system simplifies the registration process but also creates unique challenges for businesses that do not act quickly to secure their brand names.
When a business or individual submits a trademark application in China, it goes through a formal examination process conducted by the China National Intellectual Property Administration (CNIPA). The CNIPA reviews applications to ensure they meet basic legal requirements and do not conflict with existing registered trademarks. Unlike in some countries where the government conducts a thorough conflict search, in China, the responsibility of detecting potential conflicts often falls on the applicant. If a trademark is approved and no objections are raised, the registration is granted, giving the applicant exclusive rights to the trademark in China for ten years, with the option for indefinite renewals.
Because the system does not require proof of prior use, trademark registration in China has become highly competitive. Many individuals and businesses take advantage of the first-to-file rule by registering well-known foreign brand names before the rightful owners can do so. These trademark squatters often have no intention of using the trademark themselves but instead aim to sell it back to the original brand owner at an inflated price. Others use the trademark to sell counterfeit or low-quality products, damaging the brand’s reputation.
Once a trademark is registered, it is difficult for another party to challenge it unless they can prove bad faith registration, lack of use, or other legal grounds. If a legitimate business finds that someone else has already registered its brand name in China, it faces a difficult decision: attempt to buy the trademark from the registrant, engage in legal proceedings to challenge the registration, or create a new brand identity specifically for the Chinese market. In many cases, businesses are forced into expensive legal battles or costly negotiations to regain control of their own trademarks.
The first-to-file system creates urgency for businesses looking to enter China. Companies that delay registration may find that someone else has already secured their trademark, even if they have been using it internationally for years. Since China does not require an applicant to prove an intent to use the trademark at the time of filing, businesses that hesitate to act often lose out to opportunistic registrants. This is why many experts recommend that companies file for trademark protection in China as soon as they consider doing business there, even if they are not immediately entering the market.
Foreign businesses that want to register trademarks in China but do not have a local presence must file through a local trademark agent, as only Chinese entities can apply directly to CNIPA. This additional layer of bureaucracy makes it even more important to work with legal professionals who understand the complexities of China’s trademark system. Proper planning and early filing can prevent legal disputes, save money, and ensure that businesses retain full control over their brand names in one of the world’s largest markets.
Common Trademark Pitfalls in China
Many companies entering China fall into the same traps when it comes to trademark registration. One of the biggest mistakes is assuming that having a registered trademark in another country automatically protects their brand in China. Trademark rights do not transfer across borders, so a business must file a separate application in China to secure its rights.
Another common mistake is waiting until a company is ready to launch in China before applying for a trademark. Because of the first-to-file rule, waiting even a few months can be risky. A company may invest in marketing, manufacturing, and distribution, only to find that another party has already registered its brand name. At that point, the only options are to rebrand, negotiate with the trademark holder, or engage in legal proceedings.
Some businesses also fail to register the Chinese version of their brand name. Many foreign companies assume that registering their English brand name is enough, but Chinese consumers often refer to foreign brands using translated or phonetically similar names. If a company does not register the Chinese version of its brand name, someone else may do so, creating confusion in the market.
Another challenge is that China has a broad classification system for trademarks. When businesses apply for a trademark, they must specify the categories of goods or services it covers. If a company registers its brand in only one category, another business could register the same name in a different category and legally use it. To avoid this, businesses should register their trademarks in all relevant categories to prevent gaps in protection.
How to Secure a Trademark in China
Registering a trademark in China requires careful planning, speed, and an understanding of the country’s first-to-file system. Since trademark rights go to the first applicant rather than the first user, businesses must act swiftly to protect their brand. Delays in filing can lead to trademark squatting, legal disputes, and difficulties entering the market under the intended brand name. To avoid these challenges, companies must take a proactive approach to trademark registration.
The China National Intellectual Property Administration (CNIPA) is responsible for handling trademark applications. Businesses must submit an application that includes the desired trademark, the relevant product or service categories, and the required legal documentation. Since China follows a strict classification system, companies must ensure they register their trademark under all applicable classes. If a brand is only registered under one category, another company may legally use the same name for different products or services, leading to market confusion.
For businesses that do not have a physical presence in China, filing for a trademark requires working with a local trademark agent. The CNIPA only accepts applications from Chinese entities, so foreign companies must appoint an authorized representative to handle the process. Selecting a reliable trademark agent ensures that the application is correctly filed, reducing the risk of rejection due to technical errors or incomplete documentation.
Since Chinese consumers often refer to foreign brands using translated or phonetically adapted names, businesses should also register a Chinese version of their trademark. If a company does not secure a local-language equivalent, someone else may claim it, leading to brand dilution and potential consumer confusion. A well-chosen Chinese brand name helps maintain consistency across marketing efforts and strengthens the company’s presence in the local market.
Early registration is critical, but companies must also consider long-term brand protection. Regular monitoring of new trademark applications helps businesses identify potential conflicts before they become legal issues. China does not automatically check for similar trademarks during the application process, so companies must take responsibility for watching the market. If an unauthorized entity registers a similar or identical mark, businesses must file oppositions or cancellation requests promptly to prevent further complications.
If a company discovers that its desired trademark has already been registered, legal options remain available. The business can attempt to purchase the trademark from the current owner, but this can be expensive, especially if the registrant is a known trademark squatter. Another approach is to challenge the registration by proving that the trademark was filed in bad faith or has not been actively used in commerce for three years. However, these legal proceedings can be time-consuming and costly, making early registration the best defense against trademark disputes.
With China’s fast-growing economy and increasing interest from foreign brands, the competition for trademarks has intensified. Companies that act quickly, register both their English and Chinese brand names, and monitor their trademarks regularly can avoid legal complications and establish a strong foundation for long-term success in China’s vast consumer market.
What to Do if Your Trademark is Already Taken
If a business discovers that its trademark has already been registered by another party, there are still options available. One approach is to negotiate with the trademark holder to purchase the rights. While this can be expensive, it is often the quickest way to regain control of a brand name.
If the trademark was registered in bad faith, meaning that the applicant had no legitimate reason to own it, businesses can challenge the registration through legal proceedings. This process involves filing a complaint with the CNIPA and providing evidence that the trademark was registered dishonestly. However, proving bad faith can be difficult, and legal battles can take years to resolve.
Another option is to file for trademark cancellation due to non-use. If the registered trademark has not been actively used in commerce for three years, businesses can request its cancellation. This strategy works in cases where squatters register trademarks but do not actually use them. However, it requires patience, as the process can take time.
In some cases, businesses choose to rebrand instead of fighting for their original name. While this can be frustrating, it allows companies to enter the market without delay. However, rebranding comes with costs, including new marketing efforts and brand recognition challenges.
The Rising Importance of Trademark Enforcement in China
Securing a trademark in China is only the first step. Businesses must also enforce their rights actively, as trademark violations and counterfeit goods remain widespread. While China has strengthened its intellectual property laws in recent years, enforcement challenges persist, making brand protection an ongoing effort rather than a one-time process. Companies that fail to monitor and defend their trademarks risk losing market share to infringers who exploit brand names for their own gain.
One of the biggest threats to trademark owners in China is the proliferation of counterfeit goods. Many unauthorized manufacturers produce imitation products under well-known brand names, deceiving consumers and eroding brand trust. These counterfeit operations thrive on online marketplaces and in physical retail spaces, making it crucial for businesses to take action. Registering a trademark alone does not prevent counterfeiting—companies must actively work with Chinese authorities and e-commerce platforms to remove infringing products.
Legal action against infringers requires swift and strategic intervention. Businesses can file complaints with the China National Intellectual Property Administration (CNIPA) to challenge trademark violations. In serious cases, companies may need to escalate disputes to Chinese courts, where the judicial system has become increasingly supportive of legitimate trademark holders. Recent legal reforms have led to harsher penalties for bad-faith trademark registrations, but businesses must still present strong evidence and act quickly to prevent prolonged legal battles.
Customs enforcement also plays a vital role in protecting trademarks. China’s General Administration of Customs allows trademark owners to register their trademarks with customs authorities, enabling officials to seize counterfeit goods before they leave the country. Many counterfeit products produced in China are intended for export, so blocking them at the source prevents them from reaching international markets. This proactive approach helps safeguard brand reputation while reducing the financial impact of counterfeiting.
Beyond legal enforcement, consumer education and brand awareness are powerful tools in the fight against infringement. Businesses that actively engage with Chinese consumers through marketing, social media, and local partnerships strengthen their brand presence, making it harder for counterfeiters to deceive buyers. When consumers recognize a brand and understand its official distribution channels, they are less likely to purchase imitation products.
The landscape of trademark enforcement in China continues to evolve, and businesses must stay informed about regulatory changes and emerging threats. Companies that rely solely on registration without ongoing monitoring and enforcement will struggle to maintain exclusive rights over their trademarks. A comprehensive trademark strategy—including legal action, customs protection, and consumer engagement—ensures that businesses not only secure their trademarks but also defend them effectively in China’s competitive market.
Why First-to-File Matters More Than Ever
The first-to-file rule has always been central to China’s trademark system, but in recent years, its impact has grown more significant. As China’s economy continues to expand and foreign businesses increasingly enter the market, competition for trademarks has intensified. Companies that delay filing their trademarks risk losing control over their brand names, facing legal disputes, and struggling to establish a strong presence in the country.
One of the main reasons first-to-file matters more than ever is the rise of trademark squatters. These individuals or companies actively monitor international markets, looking for successful foreign brands that have not yet secured their trademarks in China. They register these names first, often with no intention of using them but rather as a way to profit. When the rightful owner eventually tries to enter the market, they are forced to either pay large sums to buy back their own trademark or face years of litigation. Some squatters even sell counterfeit products under these trademarks, misleading Chinese consumers and damaging the brand’s reputation before the original company has a chance to establish itself.
Another growing challenge is that Chinese businesses are expanding globally, and many now recognize the value of trademark ownership as a business asset. Local companies are not just registering their own brand names but also securing foreign trademarks to gain an advantage in the market. This has led to more aggressive trademark filings, making it harder for foreign businesses to recover their brands if they do not act quickly. As the Chinese economy matures, more companies understand the commercial power of trademarks, making it even more difficult for latecomers to reclaim their intellectual property rights.
The surge in e-commerce and digital trade has also made first-to-file registration even more critical. With platforms like Alibaba, JD.com, and Pinduoduo dominating China’s online shopping industry, brand protection now extends beyond physical stores. Companies that do not own their trademarks may find that unauthorized sellers are using their brand names online, creating consumer confusion and diverting sales. Major e-commerce platforms in China often require trademark registration before allowing businesses to sell under a particular name. This means that even if a company wants to enter the Chinese market digitally, it must first ensure that its trademark is properly registered.
China’s legal framework for challenging bad-faith registrations has improved, but it is still a long and costly process. While the government has made efforts to crack down on malicious trademark filings, proving bad faith remains difficult. Companies must provide substantial evidence that the original registrant had no legitimate reason to file for the trademark, which can be hard to demonstrate. Even in cases where businesses succeed in reclaiming their trademarks, they often spend years in legal battles, delaying their market entry and costing them valuable time and resources.
As China strengthens its intellectual property enforcement and more foreign businesses recognize the need to protect their brands early, the competition for trademarks will only increase. Companies that act quickly and secure their trademarks early gain a significant competitive edge, avoiding legal headaches and ensuring they maintain full control over their brand identity. The first-to-file rule is not just a legal technicality—it is a critical factor in whether a business succeeds or struggles in China’s vast and complex market.
