Can COVID-19 related terms be registered as trademarks?
Zhang Can
The Beijing Intellectual Property Court. /Xinhua

The Beijing Intellectual Property Court. /Xinhua

Editor's note: Zhang Can is an assistant judge in the Beijing Intellectual Property Court. The article reflects the author's opinions and not necessarily the views of CGTN or those of Beijing Intellectual Property Court.

As people around the world fight against COVID-19, some are exploiting the opportunity for commercial gains, busy filing trademark registrations for the words and expressions that have become popular during the pandemic, such as the Chinese form for COVID-19 and Huoshenshan and Leishenshan, which were the names of two hospitals in Wuhan that were built within days to treat COVID-19 patients.

China's National Intellectual Property Office's statistics reveal that more than 1,500 trademark registration applications pertaining to COVID-19 have been submitted since the beginning of the epidemic.

The state IP administration has attached great importance to this concerning phenomenon and has urged local authorities to investigate the matter and take immediate action.

Some may argue that, commercially speaking, it is understandable and even sensible to trademark some popular words as businesses need eye-catching signs to attract consumers. For example, in practice, the names of some internet celebrities and prevailing terms or slogans have escaped the scrutiny of the trademark administration and have been registered as trademarks. 

However, the situation is different with the current COVID-19 epidemic, as registering trademarks with epidemic-related words can hardly be seen as moral, let alone legal. Such practice goes against the newly revised Trademark Law which came into effect last November.

Huoshenshan Hospital under construction in Wuhan, central China's Hubei Province, February 1, 2020. /Xinhua

Huoshenshan Hospital under construction in Wuhan, central China's Hubei Province, February 1, 2020. /Xinhua

The reasons for the irregistrability of COVID-19 related terms are as follows.

First, Article 4 of the new law added the purpose of business operation as a registrable requirement of a trademark, widely interpreted as the highlight of this revision, according to which a bad-faith application for trademark registration for a purpose other than use shall be rejected.

Obviously, the applicants of pandemic related terms are trying to squat public resources, rather than in need of truthful business operation.

Second, all COVID-19 related terms are associated with public interests and social mores, thus registering them as trademarks would inevitably be detrimental to socialist morality, which surely fits into the scope of Article 10 of the trademark law.

In addition, trademark registration for such terms enjoys a high probability of infringing upon the prior rights of others, which would violate Article 32 of the law.

Even though there are plenty of grounds for such trademark application being rejected, the reason people are still willing to risk it is the temptation of a high return against the low cost of violating the law, lack of penalty measures and the long tradition of passing off others' trademarks in our country.

Correspondingly, malicious registration includes several types, such as squatting others' unregistered trademarks, copying others' well-known trademarks, applying trademarks that will either harm others' prior rights or are detrimental to social morality.

Since China adopted the  first-to-file system in our trademark regime, there has been a gradual increase in the number of professional trademark squatters who try to take advantage of the loophole in the law and register a sum amount of trademarks with the purpose of reselling them at a high price rather than actual industrial production.

As our market is expanding, there is an increasing need for trademarks. Meanwhile, malevolent registration becomes rampant.

Such conduct not only harms the legitimate interest of real rights holders but also leads trademark registration away from its original intention of distinguishing goods and services from different sources and guaranteeing the goodwill and quality.

Before the trademark law was revised this time, although the trademark administration and the court have made efforts to curb bad-faith registration by interpreting the law flexibly and broadly, such measures diminish the certainty and foreseeability of the law in return.

To create a sound business environment and give full play to the function of trademarks, the fourth trademark revision has taken the fight against malicious registration as a major task and added the purpose of use as a registrable requirement in Article 4, and reinforced the liability of trademark agencies.

Specifically, if any agency knows or should have known the application belongs to the malicious category and still accepts the applicant's consignment, they shall be subject to severe punishment.

In addition to these effective and integrated measures, the State Administration for Market Regulation has made a special administrative regulation to better implement the newly revised articles in the Trademark Law, and it is in the case of prohibiting the registration application of COVID-19 terms that the authority for the first time put the new mechanism for punishing malicious registration into practice.

After all, COVID-19 related terms cannot be registered as trademarks on any type of goods or services, and I hope the pandemic will come to an end very soon.

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