In accordance with the Trademark Law and its Implementation Regulations, China adopts the first-to-file principle for trademark registration, supplemented by the first-to-use principle. Where two or more applicants apply for registration of identical or similar trademarks for the same or similar goods or services on the same day, the trademark that was used first shall be preliminarily examined and published. These Guidelines are formulated to help trademark applicants understand the examination rules and procedures for same-day applications and to file trademark registration applications appropriately.

I. Correctly Understanding Same-Day Trademark Applications

"Same-day trademark applications" as mentioned in these Guidelines refer to the circumstance where two or more applicants file applications for registration of identical or similar trademarks for the same or similar goods or services on the same day. The examination procedure for same-day trademark applications aims to resolve the uncertainty regarding the right to apply for a trademark and to allow applicants to have reasonable expectations regarding registrability at the same time. Same-day trademark applications shall be subject to a preliminary examination.

To fully balance the principles of ‌prioritizing registration, supplemented by using, ‌autonomy of applicants‌ and ‌efficiency considerations‌, the Trademark Law and its Implementation Regulations have established a stepwise examination mechanism for ‌same-day trademark applications.

II. Examination Procedure for Same-Day Trademark Applications

(I) Stage 1: Submitting the Evidence of Use

The first stage is submitting the evidence of use. The primary purpose of this stage is to determine prior use, and the applicant who can prove prior use before the application date acquires the right to apply for the trademark. Where none of the applicants submits the evidence of use or none of the submitted evidence can prove prior use, the same-day applications shall proceed to the next stage of examination.

For same-day trademark applications, the trademark examination department shall conduct concurrent examination and issue the ‌Notice on Submission of Supplemental Evidence of Use for Same-day Trademark Applications‌ to all applicants on the same day. All applicants shall submit their evidence of prior use before the application date within 30 days from the receipt of the Notice on Submission of Supplemental Evidence of Use for Same-day Trademark Applications‌ to prove such prior use. Where an applicant fails to furnish such evidence or the evidence submitted is invalid, the trademark shall be deemed not in use.

Where only one applicant submits genuine and effective evidence of use within the time limit, that applicant acquires the right to apply, and the applications of the non-using applicant(s) for the same or similar goods or services shall be rejected. Where all applicants provide genuine and effective evidence of use within the time limit but the dates of use differ, the applicant who used the trademark first acquires the right to apply, and the applications of the later user(s) for the same or similar goods or services shall be rejected.

Where all applicants involved in the same-day applications actively negotiate and reach an agreement during this stage, or one party voluntarily withdraws its application in whole or in part for certain goods or services so that no conflict remains with other applicants' applications, the applicants may not be notified to negotiate separately.

(II) Stage 2: Negotiation

The second stage is negotiation. Where none of the applicants has prior use or prior use cannot be determined but one applicant can be identified through voluntary negotiation, the applicant so determined through such negotiation shall acquire the right to apply. Where the applicants are unwilling to negotiate or the negotiation fails, the same-day applications shall proceed to the next stage.

Where all applicants used the trademark on the same day or none have used it, they may negotiate the ownership of the right to apply and submit a written agreement within 30 days from the receipt of the Notice on Negotiation for Same-Day Trademark Applications. Where no written agreement is submitted within the prescribed time limit or such agreement is invalid, the negotiation shall be deemed to have failed.

Where the applicants reach an agreement within the time limit and submit a written agreement, the applicant designated in the agreement shall acquire the right to apply, and the applications of other applicant(s) for the same or similar goods or services shall be rejected or allowed to be withdrawn.

(III) Stage 3: Drawing of Lots

The third stage is drawing of lots. Where the applicants are not willing to negotiate or the negotiation fails, the process shall enter the stage in which the right to apply is determined by drawing of lots. All applicants shall participate in the online or offline drawing of lots according to the way, time and place as specified in the Notice on Drawing of Lots for Same-Day Trademark Applications. An applicant that fails to participate in the drawing of lots shall be deemed to have abandoned its application.

Where only one applicant participates in the drawing of lots at the designated time, that applicant shall acquire the right to apply, and the applications of other applicant(s) for the same or similar goods or services shall be rejected. Where multiple applicants participate in the drawing of lots at the designated time, the right to apply is granted to the participant chosen by lot, and the applications of other applicant(s) for the same or similar goods or services shall be rejected. Where no applicant participates in the drawing of lots at the designated time, the applications of all applicants for the same or similar goods or services shall be rejected in whole or in part.

Where, prior to the issuance of the Notice on Drawing of Lots for Same-Day Trademark Applications, the grounds for examining the same-day applications cease to exist-for example, due to the assignment of the applications to the same entity, the withdrawal of applications or the deletion of goods/services, the examination procedure for the same-day applications shall terminate. Where an applicant fails to participate in the drawing of lots after the issuance of the Notice on Drawing of Lots for Same-Day Trademark Applications, the applicant shall still be deemed to have abandoned its application even if the grounds for examination have ceased to exist. After the drawing of lots, the same-day trademark applications shall be examined according to the result.

III. Exceptions to the Examination Procedure for Same-Day Trademark Applications

In performing the procedure for same-day trademark applications, in principle the ownership of the right to apply shall first be determined and then the comprehensive substantive examination of the application shall follow, except in the following circumstances:

1. A stable prior registered trademark exists

In the case that a party involved in the same-day trademark applications or a third party not involved has already obtained registration for an identical trademark on the conflicting goods or services, and the rights of the prior registered trademark are not undergoing procedures for cancellation, revocation or invalidation at the time of examination of same-day applications, the same-day applications shall be rejected in whole or in part by citing the prior registration.

2. Paragraph 4, Article 19 of the Trademark Law is violated

In the case that a trademark agency applies for the registration of a trademark in respect of a category of goods or services beyond the scope of the agency services, the application shall be directly rejected according to Paragraph 4, Article 19 of the Trademark Law.

3. Article 4 of the Trademark Law is violated

In the case that a same-day application is found to be a bad faith application not filed for the purpose of use, the application shall be directly rejected according to Article 4 of the Trademark Law.

4. Other circumstances warranting direct rejection

IV. Notes on the Procedure for Same-Day Trademark Applications

(I) An applicant for trademark registration shall abide by the principle of good faith

In accordance with Paragraph 1, Article 7 of the Trademark Law, an applicant shall follow the principle of good faith when filing a trademark application and during the examination of same-day trademark applications. This includes providing appropriate responses as required in the notices during the response process, submitting genuine and valid evidence, ensuring that negotiation documents reflect the true intent of both parties, and refraining from submitting false, forged or altered documents.

(II) Effectiveness of the evidence of use

1. Concept of trademark use

The use of a trademark refers to its commercial application, primarily involving the act of using the trademark to identify the source of goods or services. Such use shall satisfy the requirements of authenticity, openness, and lawfulness. Specific forms include but are not limited to affixing the trademark to goods, their packaging or containers and commercial transaction documents, or employing the trademark in advertising, exhibition and other commercial activities.

2. General requirements for evidence of use

The evidence of use submitted by the applicant shall be true and valid, and no false evidence shall be submitted. Moreover, the pieces of evidence shall not contradict each other.

3. Requirements for the timing, class and specimen of the evidence of use

The formation date of the evidence shall be prior to the application date. The evidence shall be able to prove prior use in the same or similar class as designated in the application. It shall also be able to prove use of the same trademark as applied for, and that the trademark actually used shall be identical to the one applied for.

4. Requirements for users in the evidence of use

The evidence of use submitted by the applicant shall prove that the actual user of the trademark is the applicant or a licensed user of the trademark. Where the applicant licenses others to use the trademark, evidence of the license to use the trademark shall be submitted as well.

5. Procedural requirements for submission of evidence of use

The applicant shall complete the submission of supplemental evidence of use within the prescribed time limit. More specifically, the applicant shall complete the submission of the evidence of use within 30 days from the date of receiving the Notice on Submission of Supplemental Evidence of Use for Same-day Trademark Applications‌. The evidence of use shall be submitted together with the original of the Notice on Submission of Supplemental Evidence of Use for Same-day Trademark Applications‌.

(III) About Negotiation Stage

1. General requirements for negotiated agreement

The negotiated agreement submitted by the applicant shall clearly state the trademark application number, the trademark name, the goods or services designated for use, and other necessary trademark information. All parties shall jointly sign or seal the negotiated agreement and indicate the signing date of the agreement.

2. Requirements for substance of negotiated agreement

The negotiated agreement shall clearly specify which applicant acquires the right to apply, and shall not create the conflict of rights or harm the lawful rights of others. Notably, a trademark coexistence agreement does not constitute a negotiated agreement.

3. Procedural requirements for submission of negotiated agreement

The applicant shall submit the negotiated agreement within 30 days after receiving the Notice on Negotiation for Same-Day Trademark Applications. The negotiated agreement in written form shall be submitted together with the original Notice on Negotiation for Same-Day Trademark Applications.

(IV) About Drawing of Lots Stage

1. General procedural requirements for drawing of lots

All applicants shall carefully read the Notice on Drawing of Lots for Same-Day Trademark Applications and the Instructions on Drawing of Lots for Same-Day Trademark Applications, participate in the drawing of lots by the method, at the time and in the place as stipulated in the notice, and submit relevant materials as required.

2. Restrictions on participants in drawing of lots

Where a participant in the drawing of lots is a representative or agency appointed by a trademark applicant, it shall not simultaneously accept appointment from two or more applicants. In other words, the same participant so appointed shall not participate in the drawing of lots on behalf of two or more applicants at the same time.

(V) Applicants for trademark registration shall actively exercise their rights

The procedure for same-day trademark applications involves multiple stages and can be lengthy. In practice, delays often occur due to the applicants' passive responses. In the process of service, issues such as wrong addresses and returned mails are also common. In such case, the method of service shall be changed from mail delivery to public notice with a 30-day period. An increase in the number of public notices will prolong the process and reduce the efficiency of the examination procedure for same-day trademark applications.

Therefore, the applicants should actively cooperate by providing genuine and effective correspondence details and addresses to ensure smooth communication and accurate document delivery, thus avoiding delays from communication issues or returned mails.

(VI) An applicant shall avoid filing same-day trademark applications with its affiliates

Same-day trademark applications tend to lengthen the trademark examination cycle. In accordance with relevant provisions of the Trademark Law and its Implementation Regulations, the examination for same-day applications involves multiple stages, and the cycle is significantly affected by factors such as the service of process and response. Therefore, a business entity shall reasonably plan its trademark application and development strategy, identify the applicant in advance, and avoid filing same-day applications with its subsidiaries, holding companies or other affiliated entities.