China's Trademark Law has long been regarded as a law based on the principle of "first to file." A typical example is Article 31 of the current law, which stipulates that the trademark with an earlier filing date shall be initially approved for publication, while the trademark with a later filing date shall be rejected.

However, in reality, there are quite a few provisions in the current Trademark Law that allow prior use to successfully challenge this so-called principle of prior filing.

For instance, Article 13 concerns unregistered well-known trademarks, Article 15 concerns unauthorized registration by agents, and Article 32 concerns prior rights and prior use with a certain level of influence. Moreover, in practice, besides the provision on unregistered well-known trademarks, the thresholds for applying these other provisions have significantly lowered in recent years. Many cases can successfully invoke Article 15 or Article 32 for protection with only slightly credible evidence. This is one of the reasons why the success rate of objections has increased from around 10-20% in 2010 to 60-70% in recent one or two years, and the success rate of invalidation declarations can even reach 70-80%.

A distinctive feature of the current draft amendment to the Trademark Law is that it further emphasizes the obligation to use, further protects the rights of prior use, and further clarifies the specific scenarios of reasonable use, thereby further correcting the previous drawback of emphasizing registration and overlooking use.

For example, Article 5 of the draft requires the use or commitment to use as a prerequisite for trademark registration, which is reminiscent of the US Trademark Law. Article 14 prohibits the duplicate registration of identical trademarks, resembling the trademark case law of the European Union. Meanwhile, Article 61 of the draft mandates trademark registrants to submit proof of use every five years, all emphasizing the obligation to use trademarks.

Article 23 of the draft further expands the protection of prior rights or interests, which broadly speaking, is a further protection of prior use, as we know that many prior rights require a considerable degree of use and achieve a certain level of popularity to be protected, such as trade name rights and name rights.

And Article 62 of the draft, concerning the scenarios where a registered trademark cannot prohibit others from using, further clarifies that a registered trademark cannot exercise its power against specific bona fide use, reasonable use, and prior use.

The three points mentioned above, namely, the obligation to use a registered trademark, the protection of prior use, and the scenarios where a registered trademark cannot prohibit others from using, are all further emphasizing the importance of use, thus relatively weakening the importance of registration and filing from another perspective.