Amy Hsiao

As tariffs and the trade war with China intensify, companies that have long relied on Chinese manufacturing are increasingly exploring alternatives across Asia—with Vietnam emerging as a top contender. The country offers a compelling combination of lower labor costs, strategic trade agreements such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) , the EU-Vietnam Free Trade Agreement (EVFTA), and  Regional Comprehensive Economic Partnership (RCEP), and a rapidly improving infrastructure that supports large-scale production and export.

Many people know about trademark filings, but have you ever heard about trademark refilings? Before 2023, registering a trademark in China often involved filing several iterations of the same trademark application consecutively (so-called “refilings” of the original mark) before one of the marks proceeded to registration. This was often quite frustrating for those not used to the practice. To add to this headache, many brand owners have been told they should refile a trademark after it has already registered. As a result, it isn’t unheard of to have 5-10 filings for the same mark (and the costs definitely add up).

As the concept of a unified “metaverse” is gaining traction, savvy brand owners are shifting their focus to securing rights in this emerging sector. In pursuit of intellectual property (IP) rights, individuals and corporations are turning to metaverse trademark filings to provide protection for goods and services in the virtual world. As of the summer of 2022, the China National Intellectual Property Administration (CNIPA) has received more than 16,000 applications that either contain the word “METAVERSE” (in English or its Chinese translation: “YUAN YUZHOU,” or both) or that include descriptions of goods and services in the virtual world, or both. These applications were filed by individuals as well as companies (big and small, both foreign and domestic). The rejection rate for traditional trademark applications in China is typically high, around 60-70%, at least in the first instance. However, the rejection rate for these new metaverse applications is even higher, hovering around 80%.

With their creative minds, marketing and advertising folks never disappoint in coming up with brilliant ways to distinguish their goods and services from the competition – for example, Tiffany’s robin’s egg blue and Hermes’ orange. This type of marketing genius allows one to immediately recognize a brand without even seeing the word “Hermes” or knowing how to pronounce it. On the flip side, these ideas are prime targets for copycats. After all, by simply changing the jewelry box color to the exact pantone shade of Tiffany’s turquoise blue, a seller could immediately quadruple his/her revenue by profiting from consumer confusion without having to increase the inventory quality or spend a dime on marketing. The question then is: is it possible to protect a color (or color combination) in all jurisdictions by registering it as a trademark?

For months now, the news has been plastered with updates on COVID-19, the novel coronavirus that has upended lives and trickled into near every facet of the modern experience. Across the political aisle, consumers and producers are questioning the current level of reliance on Chinese production for drugs, ventilators, and masks. Despite these concerns, most manufacturing alternatives, including India, are still working to reestablish normalcy, making China even more indispensable. Realistically, China is and will remain the dominant player for outsourcing production for at least the next five years. Now that Chinese factories are producing close to their full capacity, foreign investors should refocus their attention to newfound legal issues that may complicate the supply chain.