The Seattle- and Shanghai- based China Law Blog explains the “agent” exception to China’s first-to-file rule. Citing a post by the China Business Law Blog, it summarizes Chinese authority holding that a trademark owner’s business agent cannot act as the owner’s agent in registering a trademark.
“What this means in real life is that if you are a foreign company manufacturing your product in China, the company you use to find your manufacturer and the company you use for your actual manufacturing cannot file your foreign trademark in China. So if you have a United States trademark and you make the huge mistake of not registering your trademark in China when you first go over there, there are about 1.3 billion people in China who can register ‘your’ U.S. trademark in China and ‘take’ it from you, but your agents are not one of them.
“What this really means though is that everyone in China can usurp your trademark by registering it, even your agents. This agent exception to China’s first to file rule has become so well known that any agent with any intelligence will not go off and register your foreign trademark in China. Instead, they will have their cousin or brother in law or someone else go ahead and do it so as to avoid the agent rule.”
China Law Blog’s advice? Get your mark registered — properly — as soon as possible. Then you can forget about the agent exception.