trademark law of the pEOPLE'S rEPUBLIC OF cHINA

 

2013 revision

(Adopted 30/8/13 Effective 01/05/14)


Chapter I General Provisions 

Article 1 Untouched

  This Law is enacted for the purpose of reinforcing the administration of trademarks, protecting the exclusive rights to use registered trademarks, and encouraging manufacturers and sellers to ensure the quality of their goods and services and to maintain the reputation of their trademarks, with a view to protecting the legitimate interests of consumers, manufacturers and sellers and to promoting the development of the socialist market economy.

Article 2 Untouched

The Trademark Office of the administrative department for industry and commerce under the State Council shall be responsible for the registration and administration of trademarks throughout the country.

The Trademark Review and Adjudication Board, established under the administrative department for industry and commerce under the State Council, shall be responsible for handling trademark disputes.

Article 3 Untouched

A registered trademark means a trademark, inclusive of a goods trademark, a service mark, a collective mark or a certification mark, that has been approved and registered by the Trademark Office. The trademark registrant shall enjoy an exclusive right to use the trademark, which shall be protected by law.

For the purpose of this Law the expression collective mark shall mean any mark registered in the name of an entity, association or other organization for being used by the members of this organization in their commercial activities to indicate the users qualifications in this organization.

For the purpose of this Law the expression certification mark shall mean any mark controlled by an organization in charge of the supervision over certain goods or service and used by the entity or individual outside this organization in respect of its goods or service to certify the origin, raw material, manufacturing method, quality or other specific qualities of said goods or service.

Special rules for the registration and administration of collective marks and certification marks shall be formulated by the administrative department for industry and commerce under the State Council.

Article 4 Revised

Where any natural person, legal entity or other organization, in the course of his or its production or business operations, intends to acquire the exclusive right to use a trademark for his or its goods or services, an application should be filed with the Trademark Office for registration of the goods trademark.

The provisions made in this Law concerning goods trademarks shall apply to service marks.

Article 5 Untouched

Two or more natural persons, legal entity or other organizations may jointly file an application with the Trademark Office for registration of a same trademark and shall jointly enjoy the exclusive right to use this registered trademark.

Article 6 Revised

As for any of such goods, as prescribed by the laws or administrative regulations that must bear a registered trademark, a trademark registration must be applied for. Where no trademark registration has been granted, such goods shall not be sold on the market.

Article 7 Revised

The application for registration and the use of a trademark shall be made in good faith.

Any user of a trademark shall be responsible for the quality of the goods in respect of which the trademark is used. The administrative departments for industry and commerce at different levels shall, through the administration of trademarks, exercise supervision over the quality of the goods and shall stop any practice that deceives consumers.

Article 8 Revised

Any visual mark, consisting of words, devices, letters, numbers, three-dimensional marks, combined colors, sounds, etc, or the combination of said factors, that can distinguish the goods of a natural person, legal entity or other organization from those goods of others, can be applied as a trademark for registration.

Article 9 Untouched

Any trademark applied for registration shall be so distinctive as to be distinguishable and shall not be in conflict with other persons prior-acquired legitimate rights.

The trademark registrant shall have the right to mark the indication Registered Trademark or a sign of trademark registration.

Article 10 Revised

The following signs shall not be used as a trademark:

 (1) those identical with or similar to the State name, national flag, national emblem, national anthem, military flag, military emblem, military song, or medals etc, of the Peoples Republic of China, and those identical with the name or the symbol of the Central State government organizations, as well as the name of the specific place where the Central State government organizations are located or the name, device of any symbolic building of the place;

 (2) those identical with or similar to the State name, national flag, national emblem or military flag, etc, of any foreign countries, except those approved by the government of the country concerned;

 (3) those identical with or similar to the name, flag or emblem etc, of any international intergovernmental organization, except those approved by the international intergovernmental organization concerned or unlikely to mislead the public;

 (4) those identical with or similar to the official sign or inspection mark indicating control and guarantee, except those with official authorization;

 (5) those identical with or similar to the symbols, or names, of the Red Cross or the Red Crescent;

 (6) those having the nature of discrimination against any nationality;

(7) those deceptive, which are likely to mislead the public to misidentify the quality or other characteristics or place of origin of the goods; and

 (8) those detrimental to socialist morals or customs, or having other adverse social impact.

The geographical names as the administrative divisions at or above the county level and the foreign geographical names well-known to the public shall not be used as trademarks, but those geographical names having otherwise meanings or serving as component part of a collective mark or certification mark shall be exclusive. Where a trademark using any of the above-mentioned geographical names has been approved and registered, it shall continue to be valid.

Article 11 Revised

Any of the following marks shall not be registered as a trademark:

 (1) those only having the generic names, designs or models of the goods in respect of which the trademark is used;

 (2) those only having direct reference to the quality, main raw materials, function, use, weight, quantity or other features of the goods in respect of which the trademark is used;

 (3) others lacking in distinctive features.

Any of those marks mentioned in the preceding paragraphs can be registered as a trademark only after it has acquired distinctive features in practical use and become distinguishable.

Article 12 Untouched

Those devices in the shape originating from the nature of the goods, existing for achieving technical effect of the goods or enabling the goods to keep substantive value shall not be registered as three-dimensional trademarks.

Article 13 Revised

Where the owner of a trademark that is known by the relevant public believes that his right is being infringed, he may request the protection of the well-known trademark in accordance with the provisions of this law.

Where a trademark applied for registration in respect of identical or similar goods is a duplication, imitation or translation of other persons well-known trademark which has not been registered in China and the applied trademark is likely to cause confusion, it shall not be allowed for registration and shall be forbidden from practical use.

Where a trademark applied for registration in respect of different goods is a duplication, imitation or translation of other persons well-known trademark which has been registered in China and the applied trademark is likely to mislead the public and bring harms to the interests of the registrant of the well-known trademark, it shall not be allowed for registration and shall be forbidden from practical use.

Article 14 Revised

A well-known trademark shall be recognized at the request of the party concerned in a trademark-related case where the recognition decision is a necessary fact of the case. The following factors shall be taken into account in the identification of a well-known trademark:

 (1) Extent of the relevant publics awareness of the target trademark;

 (2) Duration of the use of the target trademark;

 (3) Duration, extent and geographical scope of any publicizing work for the target trademark;

 (4) Protection records of the target trademark as a well-known trademark; and

 (5) Other factors concerning the popularity of the target trademark.

The Trademark Office, upon the request of the party concerned as per the prescription of Article 13 of this Law, may recognize the well-known trademark status in the situation when it deems such recognition is a necessary fact to the case during the trademark registration examination procedure; or when the administrative department for industry and commerce is investigating and applying a penalty to the trademark-related offence.

The Trademark Review and Adjudication Board, when handling the trademark disputes, upon the request of the party concerned as per the prescription of Article 13 of this Law, may recognize the well-known trademark status when it deems such recognition is a necessary fact to the case.

The peoples courts designated by the Supreme Peoples Court, upon the request of the party concerned as per the prescription of Article 13 of this Law, may recognize the well-known trademark status during a trademark civil or administrative litigation when it deems such recognition is a necessary fact to the case.

The manufacturer or operator is not allowed to use the Well-known Trademark expression on the commodities, the commodity packages, the containers, or in advertisement, exhibition or other commercial activities.

Article 15 Revised

Where the agent or representative of the owner of a trademark applies for registering the trademark in his own name without authorization and the owner of the trademark has raised an opposition against the same, such a trademark shall not be allowed for registration and shall be forbidden from practical use.

Where a trademark applied for registration is identical with or similar to another persons prior used but yet unregistered trademark, in respect of same or similar goods, and the applicant has contractual or business contacts, or other relations other than those prescribed by the preceding paragraph, with the prior trademark user so that the applicant definitely knows the existence of this persons trademark, if this person files an opposition, the applied trademark shall not be registered.

Article 16 Untouched

Where a trademark has a geographical sign of the designated goods which do not originate from the place where the geographical sign indicates and is likely to mislead the public, such a trademark shall not be allowed for registration and shall be forbidden from practical use. However, where such a trademark has been approved and registered out of goodwill, it shall continue to be valid.

The geographical sign mentioned in the preceding article refers to the specific sign indicating the origin, specific quality, prestige or other features of the designated goods and mainly decided by the natural factors or humanistic factors of the district.

Article 17 Untouched

Where any foreign citizen or enterprise applies for registration of a trademark in China, the application shall be handled in accordance with any agreement concluded between the country to which the applicant belongs and the Peoples Republic of China, or any international treaty to which both countries are members, or on the basis of the principle of reciprocity.

Article 18 Revised

The application for trademark registration or other trademark related matters may be handled by the applicant by himself, or through a trademark agency established by law.

Where any foreign citizen or enterprise applies for registration of a trademark or has other trademark matters to attend to in China, he or it shall entrust a State-designated trademark agency with qualifications for foreign-related trademark affairs established by law to act on his or its behalf.

Article 19 Newly added

Trademark agency shall act in good faith and abide by relevant laws and administrative regulations. Trademark agency shall handle the application for trademark registration and other trademark related matters as per the clients requests. Trademark agency is obligated to keep the confidentiality of the clients business secrets whichever it comprehends during the process of representation.

Trademark agency is obligated to advise its client wherever his applied trademark may fall under one of the non-registrable circumstances, as prescribed by this Law.

Trademark agency is forbidden to represent the client where it knows or should know the trademark to be filed for registration by such client falls under the circumstances prescribed in Article 15 or Article 32 of this Law.

Trademark agency is forbidden to file in its own name the application for registration of trademarks on anything else other than its services rendered.

Article 20 Newly added

The industry association of trademark agency shall rigorously carry out the requirement for membership enrollment and take disciplinary action against those members in violation of the code of ethics in compliance with the association regulations. The industry association of trademark agency shall announce to the public the members enrolled and those disciplined in time.

Article 21 Comes from Article 12 of Implementing Regulation of Trademark Law (2002), Revised

Trademark applications for international registration shall follow the rules established by the relevant international treaty concluded or acceded to by the Peoples Republic of China. Specific procedures shall be formulated by the administrative department for industry and commerce under the State Council.

 

Chapter II Application for Trademark Registration

Article 22 Revised

An applicant for the registration of a trademark shall, in a form, indicate, in accordance with the prescribed classification of goods, the class of the goods and the designation of the goods in respect of which the trademark is to be used.

An applicant for the registration of a trademark may file one application for the same trademark covering goods in several classes.

The documents pertaining to an application for trademark registration and so forth may be submitted in writing or in data message.

Article 23 Revised

Where a registered trademark is to acquire the exclusive right in respect of goods other than those have been approved for registration, a new application for registration shall be filed.

Article 24 Untouched

Where any sign of a registered trademark is to be altered, a new application for registration shall be filed.

Article 25 Untouched

Where any trademark applicant first filed a trademark application in a foreign country within the preceding six months and files an application in China for registration of the same trademark in respect of the goods in the same class, he or it may, in accordance with any agreement between the said foreign country and China, in accordance with any international treaty to which both countries are member countries, or on the basis of the principle of mutual recognition of the right of priority, enjoy a right of priority.

Where any trademark applicant claims the priority right in accordance with the provision in the preceding article, he or it shall make a written statement when the application is filed, and submit, within three months, a copy of the application documents for trademark registration that was first filed. Where the applicant fails to make the written statement or fails to submit a copy of the application documents for trademark registration within the time limit, the claim to the right of priority shall be deemed to have not been made.

Article 26 Untouched

Where any trademark which is used for the first time on the goods exhibited at an international exhibition sponsored or recognized by the Chinese government, the applicant for registering this trademark may enjoy the right of priority within six months after the date when the said goods was exhibited.

Where the trademark applicant claims the right of priority in accordance with the provision in the preceding paragraph, he or it shall make a written statement when the application is filed, and submit, within three months, the supporting documents concerning the name of the exhibition, the use of the trademark on the exhibited goods and the date when the goods was exhibited. Where the applicant fails to make the written statement or fails to submit the supporting documents within the time limit, the claim to the right of priority shall be deemed to have not been made.

Article 27 Untouched

The items applied for trademark registration and the materials provided should be authentic, accurate and complete.

 

Chapter III Examination for and Approval of Trademark Registration

Article 28 Revised

Where a trademark the registration of which has been applied for is in conformity with the relevant provisions of this Law, the Trademark Office shall, finish examination within nine months from the date of receipt of the application file for trademark registration, preliminarily approve the trademark and publish the same.

Article 29 Newly added

During the examination process, when the Trademark Office considers the contents of trademark application for registration shall be supplemented with description or be amended, it may request the applicant to submit description or make amendment.  The absence of the applicants description or amendment will not affect the Trademark Office making examination decision.

Article 30 Untouched

Where a trademark the registration of which has been applied for is not in conformity with the relevant provisions of this Law, or it is identical with or similar to the trademark of another person that has, in respect of the same or similar goods, been registered or, after examination, preliminarily approved, the Trademark Office shall refuse the application and shall not publish the said trademark.

Article 31 Untouched

Where two or more applicants apply for the registration of identical or similar trademarks for the same or similar goods, the preliminary approval, after examination, and the publication shall be made for the trademark which was first filed. Where applications are filed on the same day, the preliminary approval, after examination, and the publication shall be made for the trademark which was the earliest used, and the applications of the others shall be refused and their trademarks shall not be published.

Article 32 Untouched

The application for trademark registration shall not be allowed to harm other persons prior rights, and no preemptive application by any unfair means of a trademark which has been used by another person and has a certain influence shall be allowed for registration.

Article 33 Comes from the Article 30 of Trademark Law (2001), Revised

A prior right owner or interested party who deems that a preliminarily approved trademark published by the Trademark Office violates the provisions of Clause 2 and 3 of Article 13, Article 15, Article 16 Clause 1, Article 30, Article 31 and Article 32 of this Law, or any person who deems that such preliminarily approved and published trademark violates the provisions of Article 10, Article 11 and Article 12 of this Law, he may raise opposition with the Trademark Office against the said trademark within 3 months from the date of the publication by the Trademark Office. Where no opposition has been filed at the expiration of the publication period, the registration shall be approved, a certificate of trademark registration shall be issued and the trademark shall be published.

Article 34 Revised

Where the application for registration of a trademark is refused and no publication of the trademark is made, the Trademark Office shall notify the applicant of the same in written form. Where the trademark applicant is dissatisfied, he may, within fifteen days from receipt of the notification, apply with the Trademark Review and Adjudication Board for a review. The Trademark Review and Adjudication Board shall make a decision within nine months from the date of the receipt of the application and notify applicant in written form. Where under certain particular circumstances, the time limit needs to be extended, such time limit may be extended three months upon the approval of the administrative department for industry and commerce under the State Council. Where any party concerned is dissatisfied with the decision made by the Trademark Review and Adjudication Board, he may, within thirty days from receipt of the notification, institute legal proceedings with the peoples court.

Article 35 Revised

Where an opposition is filed against the trademark that has, after examination, been preliminarily approved and published, the Trademark Office shall hear the opponents and the opposed partys statements of facts and grounds and shall, after investigation and verification, make a decision within twelve months from the expiration date of the publication period on whether or not to approve registration, and notify in written form the opponent and the opposed party. Where under certain particular circumstances, the time limit needs to be extended, such time limit may be extended six months upon the approval of the administrative department for industry and commerce under the State Council.

Where the Trademark Office makes a decision to approve the registration, it shall issue a trademark registration certificate and shall make a publication.  If the opponent is dissatisfied with the decision, he may file with the Trademark Review and Adjudication Board an application to declare the registration of this trademark invalid pursuant to Article 44 and Article 45 of this Law.

Where the opposed party is dissatisfied with the decision not to approve the registration made by the Trademark Office, it may file an application for review with the Trademark Review and Adjudication Board, within fifteen days after receiving the notice.  The Trademark Review and Adjudication Board shall make a review decision within twelve months from the receipt of the application on whether or not to approve such registration and notify in written form the opponent and the opposed party. Where under certain particular circumstances, the time limit needs to be extended, such time limit may be extended six months upon the approval of the administrative department for industry and commerce under the State Council. If the opposed party disagrees with the decision made by the Trademark Review and Adjudication Board, it may, within thirty days after receipt of the Boards notification, file a lawsuit before the peoples court.  The peoples court shall notify the opponent to join in the lawsuit as the third party.

During the review procedure conducted by the Trademark Review and Adjudication Board in compliance with the preceding paragraph, where the affirmation of the prior right involved is subject to the outcome of another on-going trial of the peoples court or another on-going case handled by the administrative agencies, the Trademark Review and Adjudication Board may suspend the review procedure. However, the Trademark Review and Adjudication Board shall restore the review procedure once the cause for suspension no longer exists.

Article 36 Revised

Where, at the expiration of the legal time limit, no party concerned has applied for a review of the decision refusing an application or the decision rejecting registration made by the Trademark Office or has instituted legal proceedings with the peoples court against the decision of review made by the Trademark Review and Adjudication Board, the refusal decision of application, rejection decision of registration or decision of review shall become valid.

Where it is determined, after examination, that the opposition is not justified and that the trademark registration is approved, the valid period of the trademark registrants exclusive right to use the registered trademark shall be counted from the expiration of the three-month period after the preliminary publication. For the period between this expiration date and the date of the decision approving the registration of the opposed mark, the registration of the opposed mark shall have no retroactive effect upon another party who may have been using a mark identical with or similar to this newly registered trademark on identical or similar goods; however, the registrant of the opposed trademark is entitled to compensation where another party acts in bad faith and causes damages to the said registrant.

Article 37 Untouched

The application for trademark registration and the application for trademark review should be examined in a timely manner.

Article 38 Untouched

Where the trademark applicant or registrant finds out any obvious mistake in the trademark application documents or trademark registration documents, he may apply for correction of the mistake. The Trademark Office shall, within the limits of its functions and powers, make correction of the mistake and notify the party concerned.

The correction of mistake mentioned in the preceding paragraph shall not involve any substantive contents in the trademark application documents or trademark registration documents.

 

Chapter IV Renewal, Alteration, Assignment and Licensing of Registered Trademarks

Article 39 Untouched

The period of validity of a registered trademark shall be ten years, counted from the date of approval of the registration.

Article 40 Revised

Where the registrant intends to continue to use the registered trademark beyond the expiration of the period of validity, the registrant shall proceed with the renewal procedure of the registration as per the regulations within twelve months before the said expiration. Where the registrant fails to proceed with the renewal procedure within the said period, a grace period of six months may be allowed. The period of validity of each renewal of registration shall be ten years, commencing from the next day of the expiration date when the last period of validity of such registration expires. If the applicant fails to proceed with the renewal procedure at the expiration of the grace period, the registered trademark shall be cancelled.

The Trademark Office shall publish the renewal of registration.

Article 41 Comes from the Article 23 of Trademark Law (2001), Untouched

Where, after the registration of a trademark, the name, address or other registered matters concerning the registrant change, an application for the change shall be filed.

Article 42 Revised

Where a registered trademark is assigned, both the assignor and the assignee shall sign a contract of assignment and jointly file an application with the Trademark Office. The assignee shall guarantee the quality of the goods in respect of which the registered trademark is used.

When applying for the assignment of a registered trademark, the registrant shall, at the same time, do the same assignment in respect of all his other registered trademarks that are similar to the said registered trademark in respect of the same goods or that are identical with or similar to the said registered trademark in respect of similar goods.

Where an application for the assignment of a registered trademark may mislead the public or cause confusions or exert any other adverse social impact, the Trademark Office shall grant no approval thereof and shall notify the applicant of the reason in written form.

The assignment of a registered trademark shall be published after it has been approved. The assignee shall enjoy the exclusive right to use the assigned trademark from the publication date.

Article 43 Revised

Any trademark registrant may, by signing a trademark license contract, authorize other persons to use his registered trademark. The licensor shall supervise the quality of the goods in respect of which the licensee uses his registered trademark, and the licensee shall guarantee the quality of the goods in respect of which the registered trademark is used.

Where any party is authorized to use a registered trademark of another person, the name of the licensee and the origin of the goods must be indicated on the goods that bear the registered trademark.

Where a registered trademark is licensed to others to use, the licensor shall record the trademark license with the Trademark Office, and the Trademark Office will make publication.  A trademark license, if not recorded, cannot be used against a third party of good faith.

 

Chapter V Declaration of Invalidity of Registered Trademarks

Article 44 Revised

Where a registered trademark stands in violation of the provisions of Article 10, Article 11 and Article 12 of this Law, or the registration of a trademark was acquired by fraud or any other unfair means, the Trademark Office shall declare the invalidity of the registered trademark in question; and any other organization or individual may request the Trademark Review and Adjudication Board to make a ruling to declare such a registered trademark invalid.

Where the Trademark Office has made an invalidity declaration decision of a registered trademark, it shall notify the concerned parties of the same in written form.  Where any of the concerned party is dissatisfied with the invalidity declaration decision made by the Trademark Office, he may, within fifteen days from receipt of the notification, apply with the Trademark Review and Adjudication Board for a review. The Trademark Review and Adjudication Board shall make a decision within nine months from the date of receipt of such application and notify the concerned parties in written form. Where under certain particular circumstances, the time limit needs to be extended, such time limit may be extended three months upon the approval of the administrative department for industry and commerce under the State Council. Where any party concerned is dissatisfied with the decision made by the Trademark Review and Adjudication Board, he may, within thirty days from receipt of the notification, institute legal proceedings with the peoples court.

Where any other entity or individual requests the Trademark Review and Adjudication Board to declare the invalidity of a registered trademark, the Board shall notify the concerned parties in written form and request them to respond with arguments within a specified period. The Board shall make a decision either to maintain or to declare such registered trademark invalid within nine months from the date of the receipt of the application and notify the concerned parties of the same in written form. Where under certain particular circumstances, the time limit needs to be extended, such time limit may be extended three months upon the approval of the administrative department for industry and commerce under the State Council. Where any party concerned is dissatisfied with the ruling made by the Trademark Review and Adjudication Board, he may, within thirty days from receipt of the notification, institute legal proceedings with the peoples court. The peoples court shall notify the opposite party involved in the procedure of trademark adjudication to attend the lawsuit as the third party.

Article 45 Revised

Where any registered trademark stands in violation of the provisions of Clause 2 and 3 of Article 13, Article 15, Article 16 Clause 1, Article 30, Article 31 and Article 32 of this Law, any prior right owner or any interested party may, within five years from the registration date of the said trademark, apply with the Trademark Review and Adjudication Board to declare this registered trademark invalid. In the case of malicious registration, the registrant of the well-known trademark shall not be subject to the five-year time limit.

The Trademark Review and Adjudication Board shall, after receipt of the application for declaration of invalidity, notify the concerned parties in writing and request them to respond with arguments within a specified period. The Board shall make a decision either to maintain or to declare such registered trademark invalid within twelve months from the date of receipt of such application and notify the concerned parties of the same in written form. Where under certain particular circumstances, the time limit needs to be extended, such time limit may be extended six months upon the approval of the administrative department for industry and commerce under the State Council. Where any party concerned is dissatisfied with the ruling made by the Trademark Review and Adjudication Board, he may, within thirty days from receipt of the notification, institute legal proceedings with the peoples court. The peoples court shall notify the opposite party involved in the procedure of trademark adjudication to attend the lawsuit as the third party.

During the examination procedure of the declaration of invalidity conducted by the Trademark Review and Adjudication Board in compliance with the preceding paragraph, where the affirmation of the prior right involved is subject to the result of another on-going trial of the peoples court or another on-going case handled by the administrative agencies, the Trademark Review and Adjudication Board may suspend the examination procedure. However, the Trademark Review and Adjudication Board shall restore the examination procedure once the cause for suspension no longer exists.

Article 46 Newly Added

Where, at the expiration of the legal time limit, no party concerned has applied for a review of the decision made by the Trademark Office declaring a registered trademark invalid or has instituted legal proceedings with the peoples court against the review decision or a ruling made by the Trademark Review and Adjudication Board to maintain or declare a trademark registration invalid, the decision made by the Trademark Office or the decision/ruling made by the Board shall become valid.

Article 47 Comes from the Article 36 of Implementing Regulation of Trademark Law (2002), Revised

Where a registered trademark has been declared invalid according to Article 44 or Article 45 of this Law, a public announcement shall be made by the Trademark Office, and the exclusive right to use such registered trademark shall be deemed as non-existent from the very beginning.

The decision of declaration of invalidity of a registered trademark shall have no retroactive effect on any judgment, adjudication or mediation agreement made and enforced by the peoples court or the decision made and enforced by the administrative department for industry and commerce in a trademark infringement case and on any trademark assignment or trademark license contract that has been performed prior to the said declaration of invalidity.   But, if the bad faith of the trademark registrant has caused damages to any other party, compensation shall be made.

If not reimbursing the compensation for trademark infringement, or the trademark assignment fees, or the trademark royalties as prescribed by the preceding paragraph obviously violates the principle of fairness, total or partial refund should be made.

 

Chapter VI Administration of the Use of Trademarks

Article 48 Comes from Article 3 of Implementing Regulation of Trademark Law (2002), Revised

The use of trademarks as mentioned in this Law and the present Regulation refers to affixing trademarks to commodities, commodity packages or containers as well as commodity exchange documents or using trademarks to advertisements, exhibitions and other commercial activities to distinguish the origin of the commodities.

Article 49 Revised

Where the trademark registrant who uses his registered trademark has committed any of the following, the local administrative department for industry and commerce shall order him to rectify the situation within a specified period; where the situation is not rectified at the expiration of the said specified period, the Trademark Office may revoke the registered trademark:

(1) where a registered trademark is altered unilaterally;

(2) where the name, address or other registered matters concerning the registrant of a registered trademark are changed unilaterally.

Where the registered trademark has become the generic name of the designated goods or has not been used for three consecutive years without proper reason, any entity or individual may file an application with the Trademark Office for the revocation of the registered trademark. The Trademark Office shall make a decision within nine months from the date of receipt of such revocation application. Where under certain particular circumstances, the time limit needs to be extended, such time limit may be extended three months upon the approval of the administrative department for industry and commerce under the State Council.

Article 50 Revised

Where a registered trademark has been revoked, declared invalid, or has not been renewed at the expiration, the Trademark Office shall, during one year from the date of the revocation, declaration of invalidity, or removal thereof, approve no application for the registration of a trademark that is identical with or similar to the said trademark.

Article 51 Revised

Where any person violates the provisions of Article 6 of this Law, the local administrative department for industry and commerce shall order him to file an application for the registration within a specified period, and may, in addition, impose a fine as prescribed below:

(1) where the illegal turnover exceeds 50,000 yuan, the fine imposed shall be not more than 20% of the illegal turnover;

(2) where there is no illegal turnover or the illegal turnover is below 50,000 yuan, the fine imposed shall be not more than 10,000 yuan.

Article 52 Revised

Where any person using an unregistered trademark either poses the unregistered trademark as a registered one or stands in violation of the provision of Article 10 of this Law, the local administrative department for industry and commerce shall stop the use of the trademark, order him to rectify the situation within a specified period, and may, in addition, circulate a notice of criticism and may, in addition, impose a fine as prescribed below:

(1) where the illegal turnover exceeds 50,000 yuan, the fine imposed shall be not more than 20% of the illegal turnover;

(2) where there is no illegal turnover or the illegal turnover is below 50,000 yuan, the fine imposed shall be not more than 10,000 yuan.

Article 53 Newly added

Where any entity or individual stands in violation of the provisions of Article 14 Clause 5 of this Law, the local administrative department for industry and commerce shall order it or him to rectify the situation and may, in addition, impose a fine of 100,000 yuan.

Article 54 Revised

Any party concerned dissatisfied with the decision of the Trademark Office to revoke or not to revoke a registered trademark may, within fifteen days from receipt of the corresponding notice, apply with the Trademark Review and Adjudication Board for a review. The Trademark Review and Adjudication Board shall make a decision within nine months from the date of receipt of the application and notify the applicant in written form. Where under certain particular circumstances, the time limit needs to be extended, such time limit may be extended three months upon the approval of the administrative department for industry and commerce under the State Council. Where any party concerned is dissatisfied with the decision made by the Trademark Review and Adjudication Board, he may, within thirty days from receipt of the notification, institute legal proceedings with the peoples court.

Article 55 Newly added

Where, at the expiration of the legal time limit, no party concerned has applied for a review of the revocation decision of registered trademark made by the Trademark Office or has instituted legal proceedings with the peoples court against the review decision made by the Trademark Review and Adjudication Board, the revocation decision or the revocation review decision of registered trademark shall become valid.

In case a registered trademark is revoked, a public announcement shall be made by the Trademark Office, and the exclusive right to use the registered trademark shall be terminated as of the date of the publication.

 

Chapter VII Protection of the Right to Exclusive Use of a Registered Trademark

Article 56 Untouched

The exclusive right to use a registered trademark shall be limited to the trademark which has been approved for registration and to the goods in respect of which the use of the trademark has been approved.

Article 57 Revised

Any of the following acts shall be an infringement of the exclusive right to use a registered trademark:

 (1) to use a trademark that is identical with a registered trademark in respect of the same goods without authorization of the proprietor of the registered trademark;

 (2) to use a trademark similar to a registered trademark in respect of the same goods or to use a trademark identical with or similar to a registered trademark in respect of similar goods, without authorization of the proprietor of the registered trademark, where such use is likely to cause confusion;

 (3) to sell the goods that infringe the exclusive right to use a registered trademark;

  (4) to counterfeit, or to make, without authorization, representations of a registered trademark of another person, or to sell such representations of a registered trademark as were counterfeited, or made without authorization;

 (5) to replace, without authorization, a registered trademark and put the goods bearing the replaced trademark on the market;

 (6) to intentionally provide a person with conveniences for such person's infringement of the trademark of another person or facilitate such persons infringement of the trademark of another person;

 (7) to cause, in other aspects, prejudice to the exclusive right of another person to use a registered trademark.

Article 58 Comes from Article 53 of Implementing Regulation of Trademark Law (2002), Revised

Where the unregistered well-known trademark or registered trademark of another person is used as a trade name of enterprise name, which misleads the public, and therefore constitutes unfair competition act, Anti-Unfair Competition Law of the People's Republic of China shall apply.

Article 59 Comes from Article 49 of Implementing Regulation of Trademark Law (2002), Revised

Where an registered trademark contains the generic name, shape or model of the goods in respect of which it is used, or directly indicates the quality, main raw material, function, use, weight, quantity and other features of the goods, or contains a place name, the holder of the exc1usive right to use the registered trademark has no right to prohibit others from fairly using it.

Where a three-dimensional registered trademark contains an element that is the shape originating from the nature of the goods, or existing to achieve the technical effect of the goods or enable the goods to keep their substantive value, the holder of the registered trademark has no right to prohibit others from fairly using such element.

Where, prior to the application date of the registered trademark, a person has been using a trademark identical with or similar to such registered trademark in respect of the same or similar good, and such use has started before the registrant of the registered trademark and has acquired a certain influence, the holder of the registered trademark has no right to prohibit such person from continuing using his trademark within its previous usage range. However, the holder of the registered trademark may ask such person to properly attach distinguishable marks.

Article 60 Revised

Where any party has committed any of such acts to infringe the exclusive right to use a trademark as provided for in Article 57 of this Law, the caused dispute should be settled through negotiations between the parties concerned. If the way of negotiation is not favored by the parties concerned or the negotiation leads nowhere, the trademark registrant or any party concerned may either institute legal proceedings with the peoples court or request the administrative department for industry and commerce for actions.

If the administrative department for industry and commerce believes the infringing act is true, it may order the infringer to stop the infringing act, confiscate and destroy the infringing goods and the tools mainly used to manufacture the infringing goods or counterfeit the sign of the registered trademark, and impose a fine as prescribed below:

(1) where the illegal turnover exceeds 50,000 yuan, the fine imposed shall be not more than five times of the illegal turnover;

(2) where there is no illegal turnover or the illegal turnover is below 50,000 yuan, the fine imposed shall be not more than 250,000 yuan.

The administrative department for industry and commerce shall impose a heavier punishment on those who have committed trademark infringement twice or more within five years or on those with other serious circumstances. The seller, who does not know that the goods infringe other persons exclusive right to use a registered trademark, and has evidence to prove that he obtained the goods through legal channels and could indicate the name of the supplier, shall be ordered by the administrative department for industry and commerce to stop selling such goods.

At the request of the party concerned, the administrative department for industry and commerce for handling the case may offer mediation to solve the disputes over the amount of compensation for the infringement of a registered trademark. The party concerned may also initiate legal proceedings with the peoples court according to the provisions of the Civil Procedure Law of the Peoples Republic of China to settle the disputes. Where no agreement is reached by the parties concerned after the mediation of the administrative department for industry and commerce or the party concerned refuses to implement the mediation agreement after the agreement enters into force, the party concerned may institute legal proceedings with the peoples court pursuant to the provisions of the Civil Procedure Law of the Peoples Republic of China.

Article 61 Untouched

Where the exclusive right to use a registered trademark has been infringed, the administrative department for industry and commerce shall have the right to investigate and treat the infringing act according to law. If the infringer is suspected to have committed a crime, he should be transferred to the judicial organ in a timely manner for his criminal liabilities by law.

Article 62 Revised

On the basis of available evidence or reported facts concerning illegal acts, the administrative department for industry and commerce above county level shall, in the investigation and treatment of the infringement of the exclusive right to use a registered trademark, have the right to exercise the following functions and powers:

 (1) to inquire of the interested parties about the matters concerning the infringement of the exclusive right to use a registered trademark;

 (2) to examine or reproduce the interested partys such contracts, receipts, account books and any other materials as connected with the infringing act;

 (3) to make on-the-spot investigations of the place where any interested party is suspected to be involved in the infringement of other persons exclusive right to use a registered trademark;

 (4) to check up such articles as relate to the infringing act, and seal up or detain the articles which have been proved to have infringed other persons exclusive right to use a registered trademark;

When the administrative department for industry and commerce exercises such functions and powers as enumerated in the preceding paragraph, the interested parties shall give assistance thereto and must not refuse to do so.

During the investigation and penalization procedure of a trademark infringement case, where there is a dispute over the ownership of the trademark concerned or the right owner simultaneously institutes a trademark infringement suit with the peoples court, the administrative department for industry and commerce may suspend the investigation and penalization procedure of the case. However, the administrative department for industry and commerce shall restore or terminate the investigation and penalization process once the cause for suspension no longer exists.

Article 63 Revised

The amount of compensation for the infringement of the exclusive right to use a registered trademark shall be assessed in accordance with the actual damages that the right holder has suffered from the infringement; if it is difficult to assess the actual damages, the amount of compensation shall be equivalent to the profit that the infringer has earned through the infringement. Where it is difficult to determine either the actual damages suffered by the right holder from the infringement or the profit earned by the infringer through the infringement, the amount of compensation may be determined at a reasonable multiple of the royalty that the infringed registered trademark might have earned. In case of bad faith infringement where the circumstances are serious, the amount of compensation may be determined to a level that shall be not more than three times but also not less than one time the amount calculated according to the abovementioned approaches. The amount of compensation shall cover the rational expenses paid by the infringed for stopping the infringing act.

Where the right holder has fulfilled his obligation to supply evidence in order to enable the peoples court to determine the amount of compensation, while the account books and any other materials connected with the infringing act are mostly in the control of the infringer, the peoples court may order the infringer to provide such account books and materials. Where the infringer refuses to provide such information or provides false information, the peoples court may determine the amount of compensation at its discretion by taking into account the claims and the evidence submitted by the infringed.

Where it is difficult to determine the amount of loss suffered by the right holder from the infringing act, or the amount of the infringers profit from the infringing act or the amount of registered trademarks royalty as listed in the preceding paragraph, the peoples court shall make a decision on the amount of compensation not higher than 3,000,000 yuan, taking into account the seriousness of the infringement.

Article 64 Newly Added

Where the holder of registered trademark claims compensation and the accused infringer argues that such registered trademark has not been used by its holder, the peoples court may order the holder of the registered trademark to provide the evidence of actual use of such trademark during the last three years. Where the holder of the registered trademark fails to provide neither the evidence of actual use of such trademark during the last three years nor the evidence of the amount of loss suffered by the right holder from the infringing act, the accused infringer shall not be held liable for compensation.

The seller shall not bear the liability to make compensation if he does not know that the goods have infringed other persons exclusive right to use a registered trademark, and has evidence to prove that he obtained the goods through legal channels and could indicate the name of the supplier.

Article 65 Revised

Where the trademark registrant or the interested party has the evidence to prove that the on-going or up-coming infringement of the exclusive right to use a registered trademark will, if not stopped, bring about irretrievable loss to its legitimate rights and interests, he or it may, before instituting legal proceedings, request the peoples court to order the infringer to stop the infringing act pursuant to the law and adopt measures for property preservation.

Article 66 Revised

Where any evidence for stopping infringing act may be destroyed or cannot be obtained later, the trademark registrant or any interested party may, before instituting legal proceedings, request the peoples court to take measure to preserve evidence in accordance with the law.

Article 67 Untouched

Where any party uses, without the authorization of a trademark registrant, a trademark identical to the registered trademark in respect of the same goods, and the case is so serious as to constitute a crime, he shall be prosecuted, according to law, for his criminal liabilities in addition to his compensation for the damages suffered by the infringed.

Where any party counterfeits or makes, without authorization, the presentations of other persons registered trademark or sell such representations of a registered trademark as were counterfeited, and the case is so serious as to constitute a crime, he shall be prosecuted, according to law, for this criminal liabilities in addition to his compensation for the damages suffered by the infringed.

Where any party sells goods that he knows bear a counterfeited registered trademark and the case is so serious as to constitute a crime, he shall be prosecuted, according to law, for the criminal liabilities in addition to his compensation for the damages suffered by the infringed.

Article 68 Revised

Where any trademark agency has committed any of the following, the administrative department for industry and commerce shall order such entity to rectify the situation within a specified period, give warnings, impose a fine no more than 100,000 yuan but also no less than 10,000 yuan upon the entity; as well as give individual warnings to the executives directly in charge and other responsible personnel together with a fine not exceeding 50,000 yuan but not less than 5,000 yuan on the said individuals; the offender shall be prosecuted for his criminal liabilities according to law if the case is so serious as to constitute a crime:

 (1) to counterfeit or alter the legal document, seal or autograph, or to use the counterfeit or altered legal document, seal or autograph when handling trademark related matters;

 (2) to solicit trademark representation by slandering any other trademark agency, or to disturb the normal order of the trademark representation market in other dishonest means;

(3) to be in violation of the provisions of Clause 3 and 4 of Article 19 of this Law.

Where a trademark agency has committed any of the aforementioned offence, the administrative department for industry and commerce shall record such offence in the credibility dossier of the said trademark agency; where the circumstances is serious, the Trademark Office and the Trademark Appeal and Adjudication Board may refuse to accept the cases filed by the said trademark agency and publish such decision.

Any trademark agency that violates the principle of good faith and infringes the legitimate interests of the client, shall be held liable for the civil liability and be subject to disciplinary action taken by the industry organization of trademark agency in compliance with the organization regulations.

Article 69 Untouched

The functionaries of the Stage engaged in the matters of trademark registration, management and review shall be fair and honest in the enforcement of law and shall be devoted to their official duties and civilized services.

The Trademark Office, the Trademark Review and Adjudication Board and the functionaries of the State engaged in the matters of trademark registration, management and review shall not be engaged in the business of trademark agency or the production and marketing of goods.

Article 70 Untouched

The administrative department for industry and commerce shall establish a complete and sound system of internal supervision for inspecting the functionaries of the State engaged in trademark registration, management and review and checking up their performance of law and administrative regulations and their observation of disciplines.

Article 71 Revised

Where any functionary of the State engaged in the matters of trademark registration, management or review has committed such acts as dereliction of duty, misfeasance and favoritism or violated the official regulations on trademark registration, management and review by accepting article of property from the interest party or seeking illegal profit, the offender shall be prosecuted for his criminal liabilities if the case is so serious as to constitute a crime or shall be punished with a disciplinary sanction if the case is not so serious as to constitute a crime.

 

Chapter VIII Supplementary Provisions 

Article 72 Untouched

Any application for a trademark registration and for other matters concerning a trademark shall be subject to payment of the fee as prescribed. The schedule of fees shall be prescribed separately.

Article 73 Untouched

This Law shall enter into force on March 1, 1983. The Regulations Governing Trademarks promulgated by the State Council on April 10, 1963 shall be abrogated on the same date, and any other provisions concerning trademarks contrary to this Law shall cease to be effective at the same time.

Trademarks registered before this Law enters into force shall continue to be valid.