By King & Wood’s Trademark Group

Whether revocation of the certificate of incorporation will result in deprivation of the capacity of trademark owners as well as the trademark rights depends on the nature of the trademark owners.

The term "trademark owners" refer to any individuals, legal entities or other organizations that enjoy trademark rights under the law.  Trademark owners include original owners and their successors.  According to Article 9 of the amended PRC Trademark Law, the eligible trademark applicants are defined as enterprises, institutions, social organizations, privately or individually-owned businesses, individual partnerships, foreign individuals and foreign enterprises.

The privately or individually-owned business is a special type of legal person.  In accordance with the General Principles of the Civil Law of the PRC, the privately or individually-owned business takes on unlimited liability and the proprietor as well as its privately or individually-owned business shares the same rights as that of property rights.  So, the proprietor can enjoy the rights of the registered trademark even if the trademark is registered in the name of the privately or individually-owned business.  Under such circumstances, the revocation of the business license of the privately or individually-owned business will not give rise to the cancellation of the registered trademark and the proprietor will have rights to the registered trademark.  The above view has been confirmed in the following case: He Shuxian (a person who owned a privately or individually-owned business) vs. Beijing Wangshunge Food Co., Ltd. and Wangshunge Business Unit (Beijing) Co., Ltd.

However, it is not applicable to enterprises in a broader sense.  In a recent case examined by the Trademark Review and Adjudication Board (TRAB), the revocation of the certificate of incorporation was cited against the application for a trademark.  The TRAB confirmed that the revocation of the certificate of incorporation means a deprivation of the capacity to carry on business operations.  In addition, in accordance with the PRC Company Law and Regulation on Administration of Company Registration, even if the request for cancellation of the company may not have been filed, the capacity is nonetheless void due to the revocation of the certificate of incorporation.  Consequently, neither the capacity nor the rights to the registered trademark can be determined since there is no explicit successor who will receive the applied for mark once it is properly registered.  To ensure the stability of the exclusive rights of the trademark, the TRAB confirmed that a revocation of the certificate of incorporation results in the deprivation of trademark rights in an appeal against the TMO’s decision on opposition, Trussardi vs. Wenzhou Kaiji Leatherware Co., Ltd. (Contributed by Jiang Ying)

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