“Passive use” is not equivalent to “Prior use” under Article 31 of the Trademark law

(By Luo Yanjie) Pursuant to Article 31 of the Trademark Law: anyone applying for trademark registration may not damage the existing rights of others obtained by priority, neither may it register, in advance, a trademark that has been used by others and has become influential. In practice, consumers apply a “name” to a product, which can then be considered a kind of “trademark” for the product itself. Is such passive use attributable to prior use? In regard to this legal issue, there are no actual legal provisions speaking to it in Mainland China. However, the answer in today’s post appears to be a resounding no.