You have been selling under a brand for years. You go to register it in China and it is already taken — filed by a company you have never heard of, in your exact class, often in the same month as your first shipment. Or worse: it is already registered, and the registration is being used against you.
This is trademark squatting (商标抢注), and in China it is not rare. It is a business model. Chinese trademark law operates on first-to-file: the registration generally goes to whoever files first, not to whoever used the mark first. That rule is what makes squatting profitable, and it is also why your remedy depends almost entirely on which stage the squatter's application has reached.
The single most important thing to understand is that your options change over time, and they narrow. A mark still in the examination queue can be opposed. A mark registered five years ago may be beyond reach. Getting the stage wrong is the most expensive mistake in this field.
Why first-to-file makes you vulnerable
China does not require a foreign brand to have used a mark in China before someone else can register it. A squatter can file for your brand based on nothing more than having seen it abroad — on your website, at a trade show, in an Amazon listing.
Two provisions exist precisely to correct this, and they are the heart of almost every squatting case:
- Article 32, second limb. An application may not, by improper means, pre-emptively register a mark that another party has already used and that has acquired a certain influence (以不正当手段抢先注册他人已经使用并有一定影响的商标).
- Article 32, first limb. An application may not infringe another party's existing prior rights — including trade names, copyright, design rights, personal name rights, and prior registered marks.
Alongside these, Article 4 (as amended in 2019) allows refusal of applications filed without intent to use — the provision aimed at hoarding and at professional squatters — and Article 15 targets filings by agents and representatives who had dealings with you.
The remedy depends on the stage
This is the decision tree. Everything else in this article expands on one of these four branches.
Stage 1 — the squatter's application is published for opposition (初步审定公告). You file an opposition (异议) within three months of publication, under Article 33. This is the cheapest, fastest and most effective remedy. Three months is a hard deadline with no extension.
Stage 2 — the squatter's mark is registered; less than five years have passed. You file for invalidation (无效宣告), under Articles 44 and 45. An interested party has five years from the registration date to attack a registration that conflicts with prior rights or was filed in bad faith under Article 32.
Stage 3 — the registration is more than five years old. The five-year window has closed for the ordinary grounds. Two routes may still be open: non-use cancellation if the squatter has not used the mark in China for three consecutive years, and invalidation without the five-year limit where the squatter's mark infringes your well-known trademark (驰名商标) — the well-known mark owner is not subject to the five-year bar.
Stage 4 — you have already been using the mark in China, and the squatter sues you. You may have a prior-use defence under Article 59(3): a party that used a mark that has acquired a certain influence before the registrant's application, in the same or similar goods, may continue to use it within its original scope — but the registrant may require you to add a distinguishing mark. This is a shield, not a sword: it protects continued use, it does not give you the registration.
Which route applies is determined by dates, so the first task in any squatting case is to establish exactly when the squatter filed and registered.
Route 1 — Opposition
Filed against a published application, within three months of publication.
Who may file. An interested party — that is, a prior right holder — for grounds under Articles 30, 31 and 32. For other grounds (Articles 10, 11, 12, and post-2019 Article 4), anyone may file.
The core case. Almost always Article 32: you used the mark before their filing date, your use had acquired a certain influence in China, and the squatter knew or should have known of it. The two elements are prior use with a certain influence and improper means (bad faith). Evidence must show use before the squatter's application date — this is the date that matters, and it is often earlier than you expect.
Timeline. The Trademark Office decides within twelve months of the end of the publication period, extendable by six.
Outcome. If the opposition succeeds, the application is refused registration. If it fails and the mark proceeds to registration, the route does not disappear: you can still file for invalidation afterwards under Articles 44 and 45.
Practical warning. File the opposition and, in parallel, file your own application for the mark. If you win the opposition but do not have your own application on file, the field is still open for the next squatter — and you will have spent a year to get back to where you started.
Route 2 — Invalidation
Filed against a registered mark. This is the main weapon once registration has issued.
Grounds. Article 44(1) covers registrations obtained by deception or other improper means, and marks violating Articles 4, 10, 11, 12 and 19(4) — a ground on which any party may act, and which the Trademark Office may also apply on its own initiative. Article 45 covers conflict with prior rights and the Article 32 grounds, available to the prior right holder or interested party (Articles 30, 31, 32, 13(2)-(3), 15, 16(1)).
The five-year limit. Under Article 45, an invalidation request on prior-rights grounds must be filed within five years of the squatter's registration date. This is calculated from registration, not from when you discovered the problem.
The well-known mark exception. Where the squatter's registration is in bad faith and your mark is well known, the five-year limit does not apply. This is the only general escape from the five-year bar, and it is why evidence of fame — sales volumes, advertising spend, market share, recognition in China — is worth assembling carefully. Note that the burden of establishing well-known status is high, and it must generally be well known in China, not merely abroad.
Timeline and appeal. The CNIPA (Trademark Review and Adjudication Department) rules within nine months of the request, extendable by three. Either side may appeal to the Beijing Intellectual Property Court within thirty days of receiving the decision.
Route 3 — Non-use cancellation, used in parallel
This route is different in kind: it does not attack the squatter's bad faith, it attacks the registration's vulnerability. Any party may apply to cancel a registered mark that has not been used in China for three consecutive years, with no need to show any interest of your own and no bad-faith requirement.
It is a powerful lever against professional squatters, who typically file marks to hold them for sale and never use them. Two points of strategy:
- It has no five-year limit. An unused registration can be cancelled at any time during its term. This makes it the natural complement when the invalidation window has closed.
- The squatter must prove use, and the burden falls on them, in the three-year window selected by the applicant. Squatters usually cannot.
The usual approach is to run invalidation and non-use cancellation simultaneously where the dates allow, so that even if the bad-faith case fails, the registration may still fall for non-use. This article deals with invalidation in detail; the non-use procedure and its evidence rules are covered separately.
Route 4 — Negotiating with the squatter
Not every case should be fought, and negotiation is a legitimate outcome rather than a defeat.
A coexistence or consent agreement — the squatter agreeing to withdraw the application or cancel the registration — ends the matter quickly and can be cheaper than a contested invalidation with an appeal. A transfers approach, buying the mark, achieves the same in cases where the squatter filed only to sell.
Two cautions. First, an agreement cannot cure a registration that is itself unlawful; where the squatter's mark is a copy of a well-known mark or was filed in clear bad faith, CNIPA and the courts may decline to give effect to a consent agreement that leaves the offending registration on the register. Second, buying from a squatter finances the next one. Where the case is strong, fighting is often the cheaper signal to send.
Payment should be structured against delivery: a transfer is only effective when the assignment is recorded with CNIPA, and the agreement should make completion of that record a condition of payment.
The evidence that decides these cases
Squatting cases are decided on dates and proof of use in China before the squatter's filing date. What works:
- Dated sales records in China. Invoices, contracts, customs declarations, e-commerce transaction records showing the mark, your entity and a date. Invoices are the single most persuasive category.
- Advertising and promotional material in China, dated, showing the mark — exhibition materials, online storefronts, media placements.
- Continuous use over time, not a single shipment. The Article 32 standard requires the mark to have acquired a certain influence, which is judged by duration, geographic reach, sales volume and advertising — not by the mere fact of one sale.
- Evidence the squatter knew of you. Prior business contact, an agency relationship, correspondence, a shared distributor, a former employee, a trade-show encounter. This is what converts a filing into "improper means".
- Your rights abroad and their reach into China, where you argue bad faith: registrations, awards, press coverage.
The weak point in most foreign-owner cases is the quality of Chinese market evidence. A brand that is famous in Europe but has sold little in China often struggles on the "certain influence" element, which is exactly why early registration — not litigation — remains the primary defence.
Prevention, briefly
Squatting is far cheaper to prevent than to undo, and the cost asymmetry is stark: a registration in one class costs a few hundred renminbi, while a contested invalidation with an appeal can run for years.
- Register in China before you need to, not when you localise. File on your main classes as soon as a China market is plausible.
- Register the Chinese-language version of your mark too. Squatters routinely target the Chinese transliteration or a natural Chinese name for a foreign brand, not the Latin mark. Our guide to Chinese names covers that decision.
- Cover the classes you will realistically use, including the class for your own retail or online services where relevant, since the same brand in Class 25 and Class 35 are separate rights.
- Watch the register. A monitoring service flags confusingly similar applications during the three-month opposition window, which is where a case is cheapest to win. Applications published and unopposed are much harder to remove later.
- Keep dated evidence of Chinese use as you go. Reconstructing five years of invoices after a dispute starts is materially harder than keeping them.
Frequently asked questions
What is trademark squatting in China?
Trademark squatting (商标抢注) is the filing of an application for a mark that belongs to, or is used by, another party — typically by someone with no genuine intention to use it, and often with the aim of selling the registration back or blocking the real owner. Because China grants rights on a first-to-file basis, a squatter can obtain a registration over a brand that was already used abroad.
What can I do if my trademark is already registered by someone else in China?
If the registration is less than five years old, you can request invalidation on the basis of prior rights or bad faith under Articles 32, 44 and 45. If more than five years have passed, you may still cancel the registration for three years' non-use, or seek invalidation without the five-year limit where your mark is well known in China. Where the squatter sues you for infringement, Article 59(3) provides a prior-use defence.
How long do I have to oppose a squatter's application in China?
Three months from the date the opposed application is published for opposition. The deadline is fixed and cannot be extended, so monitoring is essential if you rely on catching applications at this stage.
What is the five-year rule for invalidation in China?
Under Article 45 of the China Trademark Law, a prior right holder or interested party must request invalidation of a conflicting registration within five years of the registration date. Registrations obtained in bad faith that infringe a well-known trademark are not subject to the five-year limit.
Can a foreign company cancel a trademark in China for non-use?
Yes. Any party may apply to cancel a registration that has not been used in China for three consecutive years, with no need to show an interest in the mark. The burden of proving use is on the registration owner.
Does using a trademark first in China give me rights over the person who registered it?
Not automatically. China is a first-to-file jurisdiction, so registration generally prevails over prior use. Prior use matters in two ways: it supports an opposition or invalidation under Article 32 where the mark had acquired a certain influence before the squatter filed, and it supports a limited continued-use defence under Article 59(3).
Facing a squatted Chinese trademark, or unsure which remedy your dates still allow? We assess squatting cases and run opposition, invalidation and non-use actions for foreign brand owners.