Following a major amendment to China's Trade Mark Law in October 2001, prior to it becoming a member of the WTO, China intends to amend its Trade Mark Law further. A draft was published on April 18 2006 for public consultation. Some of the proposed changes are as follows:

• A trade mark need not be visually perceptible. This would mean that smells and sounds could qualify as trade marks.
• Multi-class trade mark applications are allowed.
• To qualify as a well-known mark, the mark must be well-known to the relevant consumer public in China.
• The concept of disclaimers, which was abolished in the 2001 amendment, is reintroduced.
• The authorities will accept a letter of consent and such a letter may overcome a trade mark citation, provided that coexistence of use would not cause confusion.
• There will only be one administrative opposition proceeding. A trade mark opposition is to be filed directly with the Trade Mark Review & Adjudication Board (TRAB) and not first to the Trade Mark Office and then on review to TRAB as is now the case.
• A summary procedure is available whereby TRAB may proceed to issue its decision without first having to send the document containing the grounds for opposition to the trade mark applicant.
• The losing party to a trade mark review case is liable to pay legal fees reasonably incurred by the winning party.
• Any appeal against the decision of TRAB is to be made to the Beijing People's High Court rather than to the Beijing No. 1 Intermediate People's Court.
• Use of the mark by the trade mark licensee is expressly deemed use by the licensor.
• Proof of confusion is an essential element constituting trade mark infringement.
• Use of a trade name which is the same as, or similar to, a mark registered for the same or similar goods or services is deemed infringement, if such use can easily cause confusion to the relevant consumer public.

The proposed changes are substantial. Many of them are not entirely new because they are already contained in various subsidiary rules, regulations and judicial opinions.

Howard Tsang