Post-application evidence of bad faith in China’s Trade Mark Law

In many jurisdictions, bad faith has become an essential argument against marks registered by squatters. However, determining what constitutes bad faith remains challenging for most trademark practitioners. The Chinese courts used to opine that only evidence existing before or upon application for a trademark could be used to establish bad faith. In other words, evidence which appeared after the deemed date could not be used for this purpose. However, recent court decisions have begun to consider evidence appearing after the deemed date to determine bad faith. The experience of domain name dispute resolution and the case law in the EU and US all demonstrate that post-application evidence is occasionally either helpful or necessary to determine bad faith registration. Currently, post-application (or postfiling) evidence is considered by the Chinese courts together with ex ante evidence, mostly constituting knowledge of the mark during the application for registration. We argue that this approach is reasonable from a practical and comparative law perspective.