There are many preemptive trademark registrations in China. The figures included in trademarks are often registered by others for non-identical classes or dissimilar classes of the goods. The holders of trademarks are advised to record copyright of their trademarks for a further protecting.
1. Copyright Registration Requirements
The term “works” in the Copyright Law of China refers to original intellectual creations in literary, artistic and scientific fields and could be reproduced in a certain tangible way. If a trademark is an original work and is defined as a unique design and intellectual creation according to the Copyright Law, it is qualified to record copyright.
In China, the copyright registrations shall be filed with Copyright Protection Center of China (CPCC). Normally, it will take about 2 months for the whole procedure.
2. Essentiality of Copyright Registration
In accordance with the Chinese laws, copyright shall exist automatically from the date on which the creation of a work has been completed. The registration of copyright is a voluntary procedure in China.
However, in practice, it happens often that the copyright owners can’t offer original creation documents or other evidences to prove their rights or foreign owners take much time and cost on providing translated, notarized and legalized documents to prove their copyright. Therefore, we advise the copyright owners especially those of foreign countries to record the copyright in China for proving their ownership of the works efficiently.
3. Is it necessary to have a copyright registration if it has been registered as a trademark?
The Article 32 in Trademark Law of China provides: no trademark application shall infringe upon another party’s existing prior rights. The prior right refers to other legal prior rights except trademark right which includes copyright.
There are three conditions in applying the Article 32 to claim copyright damage.
①The trademark is identical with or substantially similar to the prior copyrighted work of others.
②The applicant of the trademark has ever touched or is likely to have touched the copyrighted work of others.
③The applicant filed the trademark application without authorization of the copyright owner.
In respect of condition ①, it only requires that the trademark and the work entitled to copyright are identical or substantially similar, not require that they shall be used on identical or similar goods. In the other words, upon meeting three conditions ①-③, the prior copyright could hold back other’s trademark application in different classes or on dissimilar goods. If the applicant merely has a trademark application/registration, it can only block others’ trademarks on identical or similar goods (well-known trademark is an exception). In this prospective, the prior copyright of works provide more protection than trademarks.
In view of all above-mentioned facts, we would advise the owner of works to register their copyrights the sooner the better.