What does “first to file” mean for trademarks in China?

China awards a trademark to whoever files first (申请在先原则). Under Article 31 of the Trademark Law, earlier use breaks only a same-day tie. Three provisions qualify the race: an agent may not register its principal’s mark, a mark already used with some influence may not be pre-empted by unfair means, and a prior user may continue within its original scope.

Most countries give some weight to prior use. China principally rewards prior filing, and the distance between those two sentences is where foreign brands lose their own names. The rule itself is one article long. What makes it expensive is the sequence most companies follow: a brand starts talking to Chinese distributors, agents and platforms months before it files, and by the time the market justifies the cost of a registration the name is already in somebody else’s application.

What does first to file mean in China?

Where two or more applicants file the same or a similar mark for the same or similar goods, the Trademark Office preliminarily approves and publishes the earlier application; only where both were filed on the same day does it look at who used the mark first (Article 31).^⁠[1] That is the whole mechanism. Use outside China, however long and however well known, does not create a Chinese registration and does not put you ahead of an earlier filer.

Does using the brand first count for anything?

In three defined situations, and none of them is a general prior-use right. Each turns on something you have to prove, which is why the answer to this question is really an instruction about record-keeping.

Provision	What the article says	What it gives you
Same-day tie(同一天申请)	Where applications for the same or a similar mark are filed on the same day, the one whose mark was used earlier is approved and published (Article 31)	Very little. Same-day collisions are rare, and this is the only place in the article where use decides anything
Agent or representative(代理人、代表人)	An agent or representative who registers the principal’s mark in its own name without authorisation is refused registration and barred from using the mark, where the principal objects (Article 15)	A direct route against a distributor or agent who filed behind your back, if you can evidence the relationship
A mark already used, carrying influence(已经使用并有一定影响)	An application must not damage another party’s existing prior rights, nor pre-empt by unfair means a mark another party has already used and that carries a certain influence (Article 32)	A ground of opposition and of invalidation. It turns on evidence of use and on what the filer knew, so dated records decide it
Prior user’s defence(在先使用抗辩)	Where a mark was used with a certain influence before the registrant applied, the registrant cannot stop that user continuing within its original scope, but may require a distinguishing mark to be added (Article 59, third paragraph)	A shield, not a right. It freezes you at the scale you had already reached and does not let you grow into the mark

Read together, these provisions punish a filer who knew about you. They do not reward a brand for merely existing. That is the practical difference, and it decides what is worth keeping: dated Chinese-language marketing, dated orders and invoices, dated correspondence with the party who filed. An opposition runs on that file or it does not run.

Who files against foreign brands

• Distributors and agents, sometimes as leverage in a commercial negotiation that is not going their way.
• Former partners, who knew the brand before it was registered in China.
• Professional filers who register foreign brands speculatively and offer to sell them back at a price set by how badly you now need them.

The pattern behind most disputes is mundane rather than predatory: a brand shares its name, logo and plans with people it is trying to do business with, and files months later. Trademark protection is not a step inside the entity process, and it does not wait for one. It comes before the conversations, whichever of the routes into the Chinese market you eventually take.

What if someone has already registered your mark?

Four routes, each with its own window, so the first thing to establish is the date the other mark was published or registered. That date decides which of them is still open to you.

Route	When it is open	The window
Opposition(异议)	The mark has been preliminarily approved and published, and is not yet registered	Three months from publication (Article 33). Two months for marks published from 1 January 2027
Invalidation on a prior right(无效宣告)	The mark is registered, and you hold a prior right or are an interested party	Five years from the registration date, with no limit for the owner of a well-known mark against a bad-faith registration (Article 45)
Invalidation for improper means(欺骗或其他不正当手段)	The registration was obtained by deception or other unfair means	The article states no period (Article 44)
Non-use cancellation(撤三)	The registered mark has gone three consecutive years without use, and without a proper reason for that	Any unit or individual may apply once the three years have run (Article 49)

Non-use cancellation is the quiet one, and often the cheapest. A filer who registered your name in order to sell it back is frequently not using it on anything, and three years of silence is a fact that can be checked rather than a state of mind that has to be proved. It does not give you the mark; it clears the obstacle so that your own application can proceed.

How long does a Chinese trademark registration take?

The law allows the Trademark Office nine months from receipt of the application to finish examination (Article 28).^⁠[1] What actually happens has been faster: CNIPA reported average examination pendency holding at four months at the end of 2025.^⁠[2] A preliminarily approved mark is then published for three months, during which it can be opposed (Article 33); with no opposition it is registered. A registration runs ten years from the date of approval (Article 39) and is renewed in the twelve months before it expires (Article 40).^⁠[1]

What changes on 1 January 2027

The Trademark Law was comprehensively revised on 26 June 2026 and comes into force on 1 January 2027.^⁠[3] It is the first full revision since the law took effect in 1983, and it grows from 8 chapters and 73 articles to 9 chapters and 87 articles, with a new second chapter gathering the conditions for registration into one place.^⁠[4] Nothing else on this page describes the revision as current law, because until 1 January 2027 it is not: the article numbers used above are the ones in force today.

Provision	To 31 December 2026	From 1 January 2027
First to file, same-day tie broken by earlier use	Article 31	Article 35, wording unchanged
Opposition window after publication	Article 33, three months	Article 36, two months
Examination period	Article 28, nine months	Article 32, nine months
Pre-empting a mark already used with influence	Article 32	Article 24: “prior rights” becomes “prior lawful rights and interests”, and “by unfair means” becomes “intentionally”
Bad-faith filing with no intention to use	Article 4	Article 19, with an added condition that the filing plainly exceeds normal business needs
Good faith	Article 7(诚实信用原则)	Article 9(诚信原则), with an abuse-of-rights clause added
Prior user’s continued-use defence	Article 59, third paragraph	Article 73, third paragraph, unchanged
Registration term	Article 39, ten years	Article 43, ten years

Classes, and the subclasses examiners actually work from

CNIPA divides the goods and services of each of the 45 Nice classes into similar groups (类似群) in its Classification of Similar Goods and Services, and examination works from those groups rather than from the class as a whole.^⁠[6] A registration covering one group in a class therefore does not automatically reach goods sitting in a different group of the same class, which is how a near-identical mark ends up registered alongside yours in what looks like the same category. Filing in “class 25” is not a plan. The current table is based on the thirteenth edition of the Nice Classification, applied to applications filed on or after 1 January 2026.^⁠[7]

Madrid, or a national filing?

Both reach China, and the choice is usually about portfolio management rather than speed. Where China is designated through the Madrid system, CNIPA has 12 or 18 months from the WIPO notification in which to refuse, depending on whether the office of origin is party to the Protocol alone or to both the Agreement and the Protocol.^⁠[8] Convention priority is available either way: six months from your first foreign application, but only if you declare it in writing at the moment you file and lodge a copy of that first application within three months. Miss either step and the priority claim is treated as never having been made (Article 25).^⁠[1]

One place a Chinese registration is not optional

Customs recordal. The Regulations on Customs Protection of Intellectual Property Rights cover trademark rights protected under Chinese law (Article 2), and recordal is applied for to the General Administration of Customs (Article 7).^⁠[9] The implementing measures require a copy of the Chinese trademark registration certificate, and require a right holder outside China to apply through an office it has established in China or through a domestic agent.^⁠[10] Without a Chinese registration there is nothing to record, and customs has no basis on which to hold a shipment for you. This is one of the concrete things a foreign brand loses by waiting, and it does not depend on having an entity in China.

What to do, in order

1. File before you approach distributors, partners or platforms, not after the relationship is established. Article 15 helps only where the relationship can be evidenced, and Article 32 only where use and the filer’s knowledge can be.
2. Register a Chinese-character version of the name alongside the Latin one. If you do not choose your Chinese name, the market will choose one for you, and whoever registers it owns it.
3. Map classes and similar groups to what you actually sell, and to what you might sell in three years.
4. Run a clearance search and have it read. A search that returns nothing is not the same as a search read by someone who knows what a partial conflict looks like.
5. Keep dated evidence of use and of reputation, in Chinese where it exists. It is what an opposition or an invalidation runs on, and it is worth nothing if it is assembled after the other side has filed.

Where a distributor or agent is involved, the trademark position and the contract are the same conversation: what the agreement says about who may register the brand, in which territories, and what happens to any registration when the relationship ends belongs in the commercial review before you sign.

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