The principle of priority originates from the Paris Convention for the Protection of Industrial Property signed in 1883. The purpose is to facilitate nationals of contracting countries to apply for patents or trademarks in other contracting countries after filing them in their own country. The so-called "right of priority" means that after the applicant files an application for the first time in a contracting country, he can apply for protection in other contracting countries within a certain period on the same subject. filed on the filing date of the application. In other words, within a certain period, subsequent applications filed by the applicant enjoy priority status compared with applications filed by others on the same subject after the date of the first filing. This is the origin of the term priority.
Priority is divided into foreign priority and domestic priority. The so-called foreign priority right refers to the period within 12 months from the date when the applicant first files a patent application for an invention or utility model in a foreign country, or within 6 months from the date when the applicant first files a patent application for a design in a foreign country, and If a patent application is filed in China on the same subject, the foreign country may enjoy the right of priority in accordance with the agreement signed between the foreign country and China or the international treaty to which both countries are party, or in accordance with the principle of mutual recognition of priority, that is, based on the first application in the foreign country. The date of filing the application is the filing date. Its principles are also applicable to Chinese applicants filing patent applications in foreign countries. The so-called domestic priority means that if the applicant files another patent application for the same subject with the Patent Office within 12 months from the date of first filing a patent application for an invention or utility model in China, he or she can enjoy priority. Designs do not enjoy national priority.
If the applicant claims priority, he should submit a written statement when applying, indicating the filing date of the earlier application, the application number and the country that accepted the application. If the earlier application is a regional application or an international application, the name of the national patent office or intergovernmental organization that accepted the application should also be stated. If the applicant claims foreign priority, he or she shall submit a copy of the prior application document certified by the acceptance authority of the country where the application is accepted; if the applicant claims domestic priority, he or she shall submit a copy of the prior application document certified by the Patent Office. If no written statement claiming priority is made at the time of application, or if a copy of the first patent application document filed in a foreign country is not submitted within three months, the application shall be deemed to have not claimed priority.
Concerning priority, there are clear provisions in the newly revised Trademark Law and the Paris Convention. Article 24, Paragraph 1 of the Trademark Law stipulates that “a trademark registration applicant shall file another trademark registration application for the same goods with the same trademark in China within six months from the date of first filing an application for trademark registration in a foreign country.” According to the agreement signed between the foreign country and China or the international convention to which China has acceded, or in accordance with the principle of mutual recognition of priority, "Trademark Law" Article 25, paragraph 1, stipulates that "a trademark shall be If it is used for the first time on goods exhibited at an international exhibition sponsored or recognized by the Chinese government, the applicant for registration of the trademark can enjoy priority within six months from the date of exhibition of the goods. "The Paris Convention provides priority. The provisions of the right are: Any person or his successor who has formally filed an application for trademark registration in a member country of the Union shall enjoy priority for applications filed in other countries within a period of six months.
Before the revision of the Trademark Law, there was no clear provision on priority. It was only mentioned in the implementation rules that the Trademark Office accepts applications for trademark registration claiming priority. The revised Trademark Law clearly stipulates the right of priority, which not only meets the requirements of the Paris Convention, but also has a wider scope of protection. The Paris Convention only stipulates that countries should grant temporary protection to trademarks on goods exhibited at official or officially recognized international exhibitions held in any country of the Union, and does not require that priority be generated in this regard. The Trademark Law has added priority to trademarks that are first used for goods exhibited in some international exhibitions. In other words, this provision in the Trademark Law gives the applicant the right to fight against others who first use the trademark when the applicant first exhibits it. Applications filed for identical or similar trademarks on identical or similar goods before the date of filing the trademark registration application will be rejected.
(1) Claiming priority in my country
Relevant laws and regulations: "Trademark Law" 24 and 25 "Trademark Law Implementation Regulations" Article 20
According to Articles 24 and 25 of the "Trademark Law" stipulate that when applying for trademark registration in my country and claiming priority, a written statement must be made when submitting the application for trademark registration, that is, filling in the country of initial application, date of application, and Application number, etc., and submit a copy of the first trademark registration application document within three months from the date of application. The copy should be certified by the trademark authority that accepted the application and indicate the application date and application number.
To request exhibition priority, the following conditions must be met:
1: The trademark must be used for the goods exhibited at an international exhibition sponsored or recognized by the Chinese government.
2: The legal period for enjoying priority is to file a trademark registration application within six months from the date the product is exhibited. That is to say, the law stipulates the time limit for enjoying priority. If the legal time limit is exceeded, the opportunity will be lost.
3: When applying for trademark registration, the applicant for trademark registration should submit a declaration of priority in writing, and submit within three months the name of the exhibition where its products will be displayed, and the name of the exhibition at the exhibition. Provide evidence of the use of the trademark on the goods, date of exhibition and other supporting documents. This certification document shall be certified by an agency specified by the administrative department for industry and commerce of the State Council, unless the international exhibition exhibiting its products is held within the territory of China. If a written statement is not made or supporting documents are not submitted for more than three months, it will be deemed that priority has not been claimed.
The submitted priority certification document should be accompanied by a Chinese translation. The agent should faithfully translate the priority document to ensure that the applied trademark is consistent with the trademark attached to the priority document. In the trademark registration application that requires priority The declared goods/services shall not exceed the scope of goods/services in the first application.
If there are multiple applications claiming priority but only one priority certification document is attached, you can submit one original and the other copies, and you should indicate which application document the original is attached to.
If the name or address of the applicant claiming priority is different from that of the applicant applying for the first time, relevant change and transfer certification documents should also be submitted.
(2) Application with priority certification documents
Chinese applicants who apply for trademark registration in other member countries of the Paris Convention can also claim priority. If you apply based on the first application in my country, you should apply to the Trademark Office of my country to provide relevant certificates. When applying, an "Application Form for Providing Priority Certification Documents" should be submitted. If the country has a trademark application certificate, the application needs to be filed by the representative, and it will be deemed to have been authorized by other patent owners.