Registering a business and a business name in China is a separate process from registering a trade mark. As in Australia, registering a business name does not give you any trade mark protection.
So if you are thinking of setting up or operating in China you should consider protecting your brand or business by registering them as trade marks.
Your business name and your brand do not have to be the same. In fact, many businesses choose different names so as not to expose their trade mark in China until they are ready to register their trade mark. This is because of China’s first to file rule.
Registering a foreign business in China can be a long and complicated process that can take several months in parts of China. It is fastest in the Shanghai special economic zone where it can usually be done in under a week.
Is your industry permitted?
The first step is to make sure that you are allowed to operate in your industry in China as a foreign investor. Every foreign investment in China is subject to the Foreign Investment Industrial Guidance Catalogue which sets out categories of encouraged, restricted and prohibited industries and activities for foreign investment. The catalogue will determine the permitted scope of investment and the likelihood of obtaining any tax incentives or other investment incentives.
Securing your business name
You will have to seek several government approvals to operate in China. Step one is business name pre- registration with the State Administration of Industry and Commerce (SAIC). SAIC is gradually simplifying the name pre-registration procedure and is planning to establish an enterprise name database for free online pre-searching and checking of proposed company names. At the time of writing this is not yet available.
The Chinese government is cutting red tape. This should reduce the complexity for new foreign investments and speed up approval times.
Registering the business
The next step is to file the application documents to establish the company with the Ministry of Commerce (MOFCOM). Then the business has to be registered with State Administration for Industry and Commerce.
Generally you need to register your business with the local or provincial SAIC in which it operates. For example, the ABC Trading Company in Shanghai would need to be registered in Shanghai and the ABC Trading Company in Beijing would need to be registered in Beijing.
Protecting your trade marks
Registering your company name and establishing your company in China does not give you protection for your brand. Trade mark registration is a separate process, just as it is in Australia. Registering your company is done at a state level, but registering a trade mark in China is done at a national level, via the Chinese Trademark Office.
Successful registration of your trade mark in China will give you the exclusive rights to it. This will prevent others from using your trade mark.