Your supplier registered your trade mark in China and is blocking your shipment

The case, in five lines

What is brought

Opposition or invalidation before CNIPA (China's trade mark and patent office) against the mark registered by your factory, your agent or your former distributor (arts. 4, 15, 32, 44 and 45 of China's Trademark Law); release of the shipment held by Chinese customs through the shipper's statement of non-infringement; and a contractual claim against the factory: an additional period for performance, avoidance of the contract, refund of the advance and damages (arts. 47, 49, 74, 81 and 84 of the Vienna Convention), with assignment of the mark if the contract provides for it. If it also registered the mark in Spain or the EU, opposition, invalidation or a claim to ownership (arts. 2(2), 10, 51 and 52 of Ley 17/2001, Spain's Trade Marks Act).

Before which court

In China, CNIPA for opposition and invalidation, and the customs office at the port of departure, which releases the goods unless an order from a Chinese people's court reaches it in time. Under the contract, the agreed arbitral tribunal (CIETAC, the China International Economic and Trade Arbitration Commission, or another institution) or, with a clause submitting to the Spanish courts, the sección civil del Tribunal de Instancia (civil section of the court of first instance); a foreign award is recognised under the New York Convention and a Spanish judgment is recognised in China under the 1992 Spain-China Treaty. In Spain, the OEPM, the EUIPO and the Sección de lo Mercantil del Tribunal de Instancia (commercial section of the court of first instance), which for EU trade marks is exclusively the one in Alicante.

Deadline

Opposition before CNIPA: three months from publication of the preliminary approval (art. 33), two from 1 January 2027 (art. 36 of the new law). Invalidation on relative grounds: five years from registration, without that limit for a well-known mark registered in bad faith (art. 45); for bad faith with no intention to use, or fraud, the provision sets no time limit (art. 44). Chinese customs: the right holder must request detention within three working days of the notice, and the goods are released if no court order arrives within 20 working days (detention on the holder's application) or if, within 50 (detention after notice), none arrives and customs cannot establish infringement (arts. 15, 16 and 24 of Decree 395). Contract: under Chinese law, four years to sue or start arbitration (art. 594 of China's Civil Code); under Spanish law, five (art. 1964(2) of the Spanish Civil Code). In Spain, invalidation for bad faith is not time-barred and the ownership action must be brought within five years (arts. 51(2) and 2(2) of Ley 17/2001).

Who can bring it

Before CNIPA, on the ground of an agent registering without authorisation (art. 15) or of a mark already in use with a certain influence (art. 32), you as holder of prior rights or interested party; on the ground of bad faith under art. 4, anyone. Always through a trade mark agency established in China, as Chinese law requires, which we coordinate. Before Chinese customs, the statement of non-infringement is filed by the shipper, usually the factory (art. 18 of Decree 395). Under the contract, the buyer that signed the order against the seller named in it.

Financial risk

Nobody can promise you that CNIPA will invalidate the registration or that customs will release the shipment by a given date. While the Chinese registration and its customs recordal stand, goods bearing your mark may be detained again on every export, whether or not you change factory. Paying for a "licence" without a recorded assignment does not give you the mark back. And whatever is won in arbitration or in court has to be enforced where the factory has assets, usually in China, at a cost in time and money.

Why your own trade mark stops your goods leaving China

Trade marks are territorial: your registration with the OEPM or the EUIPO does not protect you in China, where the Chinese register governs. Chinese customs protect trade marks, copyright and patents registered in China on import and also on export (arts. 2 and 3 of the Regulations on Customs Protection of Intellectual Property Rights, Decree 395 of China's State Council). If whoever registered your mark also recorded it with the General Administration of Customs of China, that recordal lasts ten years, renewable for another ten (art. 10), and your container is flagged at the port of departure even though you do not sell a single unit in China.

The mechanism is fast. When customs detect goods suspected of infringing a recorded mark, they notify the right holder in writing; if the holder requests detention within three working days and provides security, the goods are detained, and if not, customs cannot detain them (arts. 14 and 16). They are released if no order from a Chinese people's court arrives within 50 working days and customs cannot establish infringement, or within 20 where detention was requested on the holder's own application (arts. 15 and 24), and also if the shipper sufficiently proves that there is no infringement (art. 24). If in the end there was no infringement, whoever requested detention is liable for the damage (art. 28).

What nobody tells you is that manufacturing to order and only for export does not save you. China's Supreme People's Court held in 2019 that contract manufacturing for a foreign customer is not an automatic exception to trade mark infringement and that a mark registered outside China does not exempt anyone from liability in China. And for trade marks there is no counter-security that releases the goods: that route exists only where the suspicion concerns a patent (art. 19); against a trade mark, the shipper can only file a written statement with evidence that there is no infringement (art. 18). If the shipper is the same factory that registered your mark, it will not file one.

Factory, distributor or an unrelated third party: who registered it decides the defence

If your factory, your agent or your former distributor registered it, China's Trademark Law of 2019, in force until 31 December 2026, has a rule designed for you: a mark that an agent or representative applies for in its own name without authorisation is refused, and its use prohibited, if the principal objects, and so is the mark of anyone who knew of an unregistered mark already used by another through a contractual or business relationship with it (art. 15). The manufacturing or distribution contract, the orders with your artwork and the emails are the evidence of that relationship.

If someone with no connection to you registered it, the arguments are different. A bad faith application not made for the purpose of use is refused (art. 4); no applicant may infringe another's existing prior rights or use illegitimate means to pre-empt the registration of a mark already used by another with a certain influence (art. 32); and a mark registered in breach of art. 4 or by fraudulent or other illegitimate means is declared invalid (art. 44). Certain influence is proved by what your mark has done in China: trade fairs, catalogues, sales, advertising. If it has never been heard of there, art. 32 carries little weight and the fight turns on bad faith.

From 1 January 2027 the law revised on 26 June 2026 applies, and the numbering changes: the agent rule moves to art. 22, prior rights and marks in use with a certain influence to art. 24, and applications without intention to use to art. 19, which now also requires that the application clearly exceed normal production and business needs. It specifies the sanction, which the 2019 law already provided for without setting an amount (a warning and a fine, art. 68): a bad faith application that causes negative effects is punished with a warning and, at the authority's discretion, a fine of up to 100,000 yuan (art. 54), which counts in negotiation even though it does not compensate you. But marks already registered remain valid (art. 87): the new law does not by itself cancel the one taken from you.

Opposition or invalidation before CNIPA: the time limits that are running

If the other party's application is not yet registered, the route is opposition: three months from publication of the preliminary approval (art. 33 of the 2019 law). On the grounds of art. 15 or art. 32 only the holder of prior rights or an interested party may oppose; on the ground of bad faith under art. 4, anyone may. Under the new law the period drops to two months (art. 36). CNIPA's official fee for opposition is 500 yuan per class, 450 if filed online.

If the mark is already registered, invalidation remains. On relative grounds, such as the agent under art. 15 or the mark in use under art. 32, the holder of prior rights or the interested party has five years from registration, and the owner of a well-known mark is not bound by that limit if the registration was made in bad faith (art. 45; art. 51 from 2027). On absolute grounds, bad faith under art. 4 or fraud, anyone may apply and the provision sets no time limit (art. 44; art. 50 from 2027). The invalidation fee is 750 yuan per class, 675 online.

A Spanish company with no subsidiary in China cannot file any of this itself: until 31 December 2026 a foreigner acts before CNIPA through a trade mark agency established in China (art. 18), and from 1 January 2027 the obligation applies to foreigners with no habitual residence or place of business there (art. 11 of the new law). It is a legal requirement: the agency in China files, and the firm directs the matter from Spain with our partners with offices in China, who gather the evidence there; if a Chinese people's court is involved, a lawyer qualified in China acts, also coordinated from here. What nobody tells you: the five years run from registration, not from when you find out.

What you can claim from the factory under the contract

If the party that registered the mark is your own factory and the order does not ship, the problem is also one of performance. A sale between a company in Spain and one in China is governed by the 1980 Vienna Convention on Contracts for the International Sale of Goods (CISG), unless the contract excludes it, and an obstacle the seller itself has created is not an impediment beyond its control that exempts it (art. 79). You may fix an additional period for delivery (art. 47) and, if it does not deliver within it or declares that it will not, avoid the contract (art. 49(1)(b)) and claim repayment of the advance with interest from the date of payment (arts. 81 and 84(1)), plus the damages foreseeable at the time of contracting (art. 74).

What nobody tells you is that the Convention's warranty against third-party industrial property rights (art. 42) does not help against the Chinese mark. The seller must deliver free of rights it knew of or could not have been unaware of under the law of the State where the goods were to be resold, if that was contemplated when contracting, or under the law of the buyer's State; if the goods were to be sold in Spain, a Chinese mark falls outside it. It might apply if a third party, for instance your former distributor, also registered the mark in Spain or the EU and the factory knew or could not have been unaware of it when contracting, but the warranty does not cover what you knew or could not have been unaware of, nor a claim arising from the factory having followed your designs and specifications (art. 42(2)), and affixing the mark according to the artwork you sent may fall within that; if you still rely on it, you must give notice within a reasonable time, specifying the claim, or lose the right (art. 43). That is why, here, the contract's intellectual property clause is what saves you.

The forum is set by the contract. With an arbitration agreement, the dispute goes to the agreed arbitral tribunal; if the seat is in China, the agreement must name the institution or it is void unless a supplementary agreement is reached (arts. 27 and 29 of China's revised Arbitration Law, in force since 1 March 2026), and that law allows applications for preservation of evidence and for orders to do or refrain from doing something, also before arbitration in urgent cases (arts. 39 and 58). Without arbitration, you sue in Spain if there is a clause submitting to its courts (art. 25 of the Brussels I bis Regulation) or if the obligation was to be performed here (art. 22 quinquies(a) of the Ley Orgánica del Poder Judicial, Spain's Organic Law on the Judiciary), which with delivery agreed in China rarely happens, and first the negotiation required by Ley Orgánica 1/2025 (Organic Law 1/2025) is attempted. The detail of each forum is in "You want to sue your Chinese supplier: arbitration or the courts?".

If it also registered the mark in Spain or the European Union

A former distributor that registers in China sometimes does so here too, and that hits you directly: with a registered Spanish trade mark it can prohibit the import or export of goods bearing the sign (art. 34(3)(c) of Ley 17/2001, Spain's Trade Marks Act). If a container of yours is detained on that basis, the matter is covered in "Your goods detained at Spanish customs as suspected counterfeits". But Spanish law gives you weapons: an agent or representative may not register its principal's mark in its own name without consent, unless it justifies its conduct, and the owner may oppose it or bring actions for invalidity, for a declaration of ownership or for cessation, also under art. 6 septies of the Paris Convention (art. 10).

Invalidity on the ground of art. 10 is relative (art. 52(1)), but if the application was made in bad faith it is absolute and not time-barred (art. 51(1)(b) and 51(2)), and the five-year acquiescence rule of art. 52(2), which only affects the rights under arts. 6, 7, 8 and 9(1), does not apply to invalidity on the ground of art. 10. The ownership action lets you keep the mark instead of cancelling it: it is brought before registration or within five years of its publication or of the start of its use (art. 2(2)). Invalidity is sought before the OEPM, with a fee of 170 euros online, or by counterclaim; before the EUIPO, opposition runs for three months from publication of the application (320 euros; invalidity, 630). For EU trade marks, the Court of Justice has held that a commercial cooperation agreement creating a duty of loyalty is enough to be an "agent or representative" (case C-809/18 P, of 11 November 2020).

Litigation over the Spanish mark goes to the Sección de lo Mercantil del Tribunal de Instancia (commercial section of the court of first instance) (art. 87(6)(a) of the Organic Law on the Judiciary), and over EU trade marks, exclusively for the whole of Spain, to the Alicante section acting as EU Trade Mark Court (art. 87(10)); since 31 December 2025 there are no longer Juzgados de lo Mercantil (commercial courts). Before suing in civil proceedings, the negotiation under Organic Law 1/2025 must be attempted, which is not required for interim measures sought before the claim. And your own mark can be protected at Spanish customs with an application for action, free of charge (art. 8 of Regulation 608/2013), valid for up to a year and renewable.

The evidence is gathered in China, before you pay the balance

What decides the matter before CNIPA, Chinese customs or the arbitrator is a documented chronology: since when and where you have used your mark, when you registered it in Spain and the EU, when the relationship with the factory or distributor began and when it applied for the mark in China. Orders bearing your logo, the artwork you sent, moulds and labels with the mark, technical data sheets and emails in which the factory calls it "your brand" are worth more than any later statement. If the factory also refuses to return your moulds, see "The Chinese factory is holding your moulds or using them for others".

This is where our network comes in. The firm works with partners with offices in China and with expert engineers in Spain and in China who examine the goods and their specifications before shipment, on arrival and, if a claim has to be made, as expert evidence: they record how the goods are marked, whether they match your drawings and artwork, how many units there are and whether there are signs that the factory is overproducing under your mark. They do not guarantee the outcome, but they give you the evidence before you release the balance of the price, which is your best leverage. In a Spanish trial the expert report is signed by an expert holding an official qualification and is filed with the claim (arts. 335, 336 and 340 of the Ley de Enjuiciamiento Civil, Spain's Civil Procedure Act); the reports, photographs and samples from China are its basis. And formal judicial evidence-taking in China for foreign proceedings goes through the treaties (art. 12 of Decree 801, since 1 May 2025).

Many of these matters are settled by negotiation: whoever registered the mark assigns the Chinese registration and withdraws the customs recordal in exchange for the relationship continuing. If you negotiate, the assignment is signed and filed with CNIPA, and the customs recordal withdrawn, before anything is paid; a payment on account for a "licence" of your own mark only finances the next blockage. In parallel the opposition or invalidation is kept alive, so the time limit is not lost if negotiation fails. And the clause that would have prevented it: that the mark is yours in every country, China included; that the manufacturer will not register the mark or similar signs or sell goods bearing it to third parties; that it will assign free of charge any registration made in breach, with a penalty; and arbitration before a named institution.

How we run the case, step by step

1. 1

   Find out what is registered in China

   With our partners in China we check the register: owner, filing and publication dates, goods and classes, whether it is in opposition, registered or recorded with Chinese customs, and whether the same owner has applied for the mark in Spain or the EU. That date decides whether opposition is still possible or only invalidation.

2. 2

   Get the detained container moving

   If a third party requested the detention, the written statement with evidence for Chinese customs (art. 18 of Decree 395) is prepared with your factory, which is the shipper, and the 20 or 50 working days of art. 24 are monitored. If the factory itself is causing the blockage, the battleground is the contract.

3. 3

   Send a formal demand to whoever registered it

   A letter demanding free assignment of the Chinese mark, withdrawal of the customs recordal and, if it is your factory, delivery within an additional period with a fixed date (art. 47 of the Vienna Convention), with an express reservation of all your rights. Framed as a request to negotiate with a defined subject matter, it serves as the prior attempt that Organic Law 1/2025 requires before suing in Spain.

4. 4

   Oppose or seek invalidation before CNIPA

   Within the time limit, on the grounds of the agent or contractual relationship (art. 15), bad faith (art. 4) or a mark in use with a certain influence (art. 32). As Chinese law requires, a trade mark agency established in China files it, and the firm directs the matter and prepares the evidence with our partners there.

5. 5

   Inspect the goods before paying the balance

   Our partners with offices in China and our expert engineers examine the goods and their specifications at origin and on arrival: marking, units, moulds and labels bearing your mark and conformity with your drawings. Those reports support the case before CNIPA and in arbitration, and form the basis of the report that an expert with an official qualification would sign in Spain.

6. 6

   Claim, and protect future orders

   Without agreement, arbitration or a claim in the contractual forum for the advance, damages and, if agreed, the assignment. For the future, your own registration in China, also in Chinese characters if you will use them, recordal with Chinese customs, and a contract with an intellectual property clause, a penalty and arbitration before a named institution. We draft it for you.

The law that applies

• Arts. 10, 51 y 52 de la Ley 17/2001, de Marcas. An agent or representative of the owner may not register the mark in its own name without consent, unless it justifies its conduct, and the owner may oppose it or bring actions for invalidity, ownership or cessation. Invalidity on that ground is relative; if the applicant acted in bad faith it is absolute and not time-barred, and the five-year acquiescence rule of art. 52(2) does not extend to this ground. BOE-A-2001-23093
• Arts. 2.2 y 34 de la Ley 17/2001, de Marcas. A person whose mark has been applied for in fraud of its rights or in breach of a legal or contractual obligation may claim ownership of it in court before registration or within five years of its publication or of the start of its use. Registration confers an exclusive right that allows, among other acts, the import or export of goods bearing the sign to be prohibited. BOE-A-2001-23093
• Arts. 42 y 43 de la Convención de Viena de 1980. The seller must deliver free of third-party industrial property rights it knew of or could not have been unaware of when contracting, under the law of the State of contemplated resale or that of the buyer's place of business; it is not liable if the buyer knew of them or if it followed specifications supplied by the buyer. The buyer loses that right if it does not give notice of the third party's claim within a reasonable time, unless the seller knew of it. BOE-A-1991-2552
• Arts. 47, 49, 79, 81 y 84 de la Convención de Viena de 1980. Where the goods are not delivered, the buyer may fix an additional period and avoid the contract if the seller does not deliver within it or declares that it will not. Exemption for an impediment beyond the seller's control only excludes damages and requires notice. Avoidance releases both parties, save for damages and dispute resolution clauses, and what was paid is refunded with interest from the date of payment. BOE-A-1991-2552
• Arts. 22 quinquies y 87 de la LO 6/1985, del Poder Judicial. Absent a choice of court, the Spanish courts hear contractual obligations that were or should have been performed in Spain, even if the defendant is not domiciled here. The commercial sections of the courts of first instance hear industrial property matters, and the Alicante section, exclusively for the whole of Spain, actions on EU trade marks. BOE-A-1985-12666
• Arts. 3.1 y 5 de la LO 1/2025, de medidas en materia de eficiencia del Servicio Público de Justicia. Before suing in civil and commercial matters, an appropriate dispute resolution method must be attempted, also in cross-border disputes, and direct negotiation between lawyers qualifies. It is not needed for interim measures before the claim, preliminary inquiries or enforcement proceedings. BOE-A-2025-76
• Arts. 8.6, 11.3 y 46 de la Ley 60/2003, de Arbitraje. Recognition of a foreign award is governed by the 1958 New York Convention and is a matter for the Civil and Criminal Chamber of the Tribunal Superior de Justicia (High Court of Justice of the region). An arbitration agreement does not prevent applying to a Spanish court for interim measures, also in support of an arbitration conducted outside Spain. BOE-A-2003-23646
• Arts. 17, 18, 21 y 24 del Tratado entre España y China sobre asistencia judicial en materia civil y mercantil de 1992. Civil and commercial judgments are recognised and enforced in the other State; in China the application goes to the Intermediate People's Courts, provided the court of origin had jurisdiction under art. 21, for example through the defendant's written submission or because the contract was signed, performed or to be performed in the State of origin. Arbitral awards are recognised under the New York Convention. BOE-A-1994-2077

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

Frequently asked questions