Made In China: What Businesses Should Know About Trade Mark Registration
China is Australia’s largest two-way trading partner, with bilateral trade between the two countries increasing by 9.3% in 2023 to $327.2 billion, according the Australian Government’s Department of Foreign Affairs and Trade. China accounted for 26% of Australia’s goods and services trade with the world in 2023 – with many businesses both large and small, choosing to have their goods manufactured in China.
But did you know that manufacturing goods in China can impact your trade mark rights?
How does ‘Made in China’ affect my trade mark rights in China?
Even if you don’t sell or promote your goods in China, the mere fact that they are manufactured in that country can constitute infringement of a trade mark that has already been registered in China.
This hasn’t always been the case however.
Historically, manufacturing a product wasn’t necessarily considered ‘use’ of a trade mark. However, as evidenced by decisions made by the Supreme Court in China, things have changed.
These reasonably recent decisions determined that there may be circumstances in which use of a trade mark on goods manufactured in China but which aren’t being sold in that country, may amount to infringement. In other words, manufacturing may actually be considered ‘use’ of a trade mark.
What was really interesting about some of these findings was that the parties which alleged the trade mark infringement did not necessarily have to prove customer confusion, nor did they have to prove that customers could access the products when they were travelling overseas or via an online ecommerce platform. They just had to prove the theoretical possibility of these situations arising. It’s clearly a very complicated and complex situation – with many pitfalls for the unwary.
The reality is that nowadays, any business that manufactures goods in China or which is considering having their goods manufactured there, should investigate the competitive landscape thoroughly in terms of trade mark registration and apply to register their own trade mark in that country.
The world of international trade marks is dynamic, and unless business owners keep up-to-date with ever-changing legislation, they could find themselves in difficult situations which can be impossible to rectify.
An earlier blog that I wrote on the MMW Trademark Services website entitled ‘Do I Need To Register My Trade Mark in China If My Goods Are Made In China?’ gives some helpful background to this very topical issue.
