Crypto trademarks are a no-go in China. In line with the country’s prohibitions on cryptocurrencies, the China National Intellectual Property Administration (CNIPA) will not register trademarks that describe crypto goods and/or services. Brands in the crypto space must be mindful of this reality when crafting brand and intellectual property rights protection strategies for China.
China banned cryptocurrencies in 2021. Consequently, applications to register trademarks that describe crypto goods and/or services are being rejected by CNIPA. At first glance, these rejections would appear to be consistent with China’s Trademark Law. Article 10(i)(7) prohibits the registration of trademarks “detrimental to socialist morality or customs, or having other unhealthy influences.” Interestingly, however, CNIPA does not always cite Article 10(i)(7) when rejecting crypto trademark applications.
In the case of one application rejected on both crypto and descriptiveness grounds, CNIPA did not cite Article 10(i)(7), but did cite the Trademark Law’s prohibition against descriptive marks. We have also seen instances where CNIPA only cites the procedural sections of the Trademark Law.
It is possible that CNIPA, or at least some of its examiners, do not view crypto trademarks as inherently violative of Article 10(i)(7), and instead apply a standalone prohibition against crypto. Perhaps conscious of the fact that at some point the authorities may decide to take a softer stance on crypto, CNIPA may not want to go so far as to label it detrimental. CNIPA will sometimes cite Article 10(i)(7), but in the cases we have seen so far, the application has also been rejected on deceptiveness grounds – and it may be that which triggers the Article 10(i)(7) concern.
This all said, my experience in the public sector taught me not to overanalyze the actions of bureaucratic actors. The bottom line is that the trademark is not going to be registered, irrespective of how many and/or which Trademark Law articles are cited. As Deng Xiaoping said, “No matter if it is a white cat or a black cat; as long as it can catch mice, it is a good cat.”
With crypto brands aware of this landscape, they need to ensure that their goods and services descriptions are drafted in a way that makes them likely to pass muster for a China trademark. For one, this means avoiding terms such as “cryptocurrency”.
To be clear, the idea here is not to try to pull the wool over CNIPA’s eyes. Rather, it is to avoid situations where Web3 technology and services that have applications that extend beyond crypto are defined too narrowly, in a way that deprives the brand of trademark protection.
In this sense, brands should be particularly careful with Madrid applications. One of the benefits of national applications (that is, those filed directly with CNIPA) is that they allow trademark owners to tailor their applications to China’s specific requirements. Avoiding China-specific restrictions on crypto trademarks is a textbook example of a situation where a brand would want to do that.
Needless to say, as long as China’s prohibition on crypto stands, no one should be getting into that business in China. Brands in the wider Web3 space, on the other hand, should take care to ensure that references to crypto do not jeopardize the protection of their trademarks that also (or exclusively) describe goods and/or services that are not related to crypto.