(By Luo Yanjie) Abstract: China’s new Trademark Law still enforces the principle of “first to file,” but at the same time a prior user of a trademark only need prove to some extent that their prior use of a registered trademark had a degree of popularity, and need not prove that a subsequent user of the trademark “squatted” the trademark by registering it. If the board approves such prior use, the prior user will have the right to continue using the trademark in the original scope of use. “Improper means” as stated in Article 31 of the Trademark Law, refers to situations “where the applicant knows or should have known that the trademark had been used by others with a certain degree of influence, and preemptively registered the same, then such applicant shall be determined to have used improper means to register the mark.”
The State Food and Drug Administration of China (SFDA) recently released the news on its website that the colorful plain contact lens will be put into administrative supervision over medical equipment (the “News”). Though the equipment is referred as the “colorful plain contact lens”, while it’s reported by media in the name of “Acuvue/Acuvue” (the “Acuvue”, means beautiful sight in Chinese). Afterwards, Johnson & Johnson (NYSE: JNJ), the manufacturer of “Acuvue”, stated that the words are the exclusive trademark of it, and only the contact lens with cosmetic effect could be called as “Acuvue”.