First-to-File vs. First-to-Use

China operates a first-to-file trademark system — the first person to file a valid trademark application generally obtains the exclusive rights, even if someone else used the mark earlier. This is fundamentally different from common law jurisdictions like the United States, where prior use can establish trademark rights without registration.

What This Means in Practice

• Use without registration = no protection: Using a mark in China without registering it gives you essentially no legal rights under trademark law (with limited exceptions for well-known marks).
• Registration creates the right: Your trademark rights in China begin on the filing date of your application, not the date you first use the mark.
• Speed matters: A delay of even one day can mean the difference between owning your mark and losing it to a squatter.

Exceptions and Nuances

1. Well-Known Unregistered Marks

Under Article 13(2), unregistered marks that are well-known in China can prevent others from registering identical/similar marks for identical/similar goods. However, proving well-known status requires substantial evidence and is adjudicated case-by-case.

2. Prior Use Defense (Article 59)

If you used a mark before someone else registered it and have achieved a certain influence, you can continue using it within your original scope — but you cannot expand or license it. This is a defense, not an affirmative right.

3. Bad Faith Filings

Under the 2019 amendments, bad faith filings without intent to use violate Article 4 and are rejected. CNIPA is increasingly applying this provision, but it's reactive — the squatter may still file first, and you'll need to take action.

Practical Implications for Foreign Brands

• File before market entry: File your Chinese trademark application 6-12 months before launching in China.
• File before public announcements: Don't announce your China market entry before filing — squatters monitor news for unprotected brands.
• File in Chinese characters too: A Latin mark registration does not protect its Chinese equivalent. File both.
• Monitor the Gazette: Even after filing, monitor for similar marks filed by third parties during your application's pendency.

The Bottom Line

In China, filing IS your right. Use without filing is, practically speaking, no right at all. File early, file comprehensively, and file before you need to.