(Adopted at the 24th Session of the
Standing Committee of the Fifth National People‘s Congress on August 23, 1982,
as amended according to the “Decision on the Revision of the Trademark Law of the People’s Republic of China”
adopted at the 30th Session of the Standing Committee of the Seventh National
People’s Congress on February 22, 1993, and the “Decision on the Revision
of the Trademark Law of the People’s Republic of China”
adopted at the 24th Session of the Standing Committee of the Ninth
National People’s ‘Congress on October 27 2001, and amended for the third time
according to the” Decision on the Revision of the Trademark Law of the People’s Republic of China”
adopted at the 4th Session of the Standing Committee of the Twelfth
National People’s ‘Congress on August 30, 2013)
Chapter l General Provisions
Article
1 This Law is enacted for the purposes of improving the administration of
trademarks, protecting the exclusive right to use trademarks, and of
encouraging producers and operators to guarantee the quality of their goods and
services and maintaining the reputation of their trademarks, with a view to
protecting the interests of consumers, producers and operators and to promoting
the development of the socialist market economy.
Article
2 The Trademark Office of the State Administration for Industry and Commerce
under the State Council shall be responsible for the registration and
administration of trademarks throughout the country.
Industrial and commercial administrative department of the
State Council set up TRAB, responsible for handling trademark disputes.
Article
3 A registered trademark means a trademark that has been approved and
registered by the Trademark Office. A trademark registrant shall enjoy an
exclusive right to use the trademark, which shall be protected by law.
For the purposes of this law, a collective mark is a mark
registered in the name of a group, association, or any other organization and
used by its members to indicate membership.
For the purposes of this law, a certification mark is a mark
which is owned by an organization that exercises supervision over a particular
product or service and which is used to indicate that third-party goods or
services meet certain standards pertaining to place of origin, raw materials,
mode of manufacture, quality, or other characteristics.
Particulars pertaining to the registration and administration
of collective marks and certification marks shall be formulated by the State
Administration for Industry and Commerce under the State Council.
Article
4 Any natural person, legal person, or other organization desirous of acquiring
the exclusive right to use a trademark for the goods produced, or services and
activities offered by it or him shall file an application for the registration
of the goods or service mark with the Trademark Office.
The provisions
set forth in this Law concerning trademarks shall apply to service marks.
Article 5 Two or more natural persons, legal
persons, or other organizations may jointly file an application for the
registration of a trademark and jointly enjoy and exercise an exclusive right
to use the mark.
Article
6 For goods that must be used in connection with a registered trademark as
prescribed by the laws and administrative regulations, a trademark registration
must be applied for. Where no trademark registration has been granted, such
goods cannot be sold on the market.
Article
7 Any application or usage of a trademark shall abide by principles of good
faith. Any user of a trademark shall be responsible for the quality of the
goods in connection with which the trademark is used. The administrative
authorities for industry and commerce at all levels shall exercise supervision
over the quality of the goods and shall prohibit any practice that defrauds the
consumer.
Article
8 An application may be made to register as a trademark any mark, including any
word, device, any letter of the alphabet, any number, three-dimensional symbol,
colour combination and sound, or any combination thereof, that identifies and
distinguishes the goods of a natural person, legal person, or other
organization from those of others.
Article
9 A trademark seeking registration shall be so distinctive as to be
distinguishable and shall not infringe upon the prior legitimate rights of
others.
A trademark registrant shall have the right to display the
wording “Registered Trademark” or a sign indicating that it is registered.
Article
10 The following words or devices shall not be used as trademarks:
(1)
Those identical with or similar to the State name, national flag, national
emblem, national anthem, military flag, army emblem, military song, or
decorations of the People’s Republic of China; those identical with a State
Organ’s name, symbol, or the names of the specific locations that are
seats of central state organs; or those identical with the names or designs of
landmark buildings;
(2) Those identical with or similar to
the state names, national flags, national emblems or military flags of foreign
countries, except with the permission of the government of the country
involved;
(3) Those identical with or similar to
the flags, emblems, names or others of international inter-governmental
organizations, except with the permission of the organization concerned or
where no likelihood of public confusion exists;
(4) Those identical with or similar to an official mark or inspection
seal that indicates control and guarantee, except where authorized;
(5) Those identical with or similar to the symbols or names of the Red
Cross or the Red Crescent;
(6) Those that discriminate against any nationality;
(7) Those in the nature of fraud in advertising that easily confuses the
public with the quality or other characteristics or origins of the goods, or
the place of origin of the goods;
(8) Those detrimental to socialist morals or customs, or having other
unhealthy influences.
The geographical names of administrative divisions at or
above the county level and foreign geographical names well-known to the public
shall not be used as trademarks, except for geographical names that have other
meaning or constitute part of a collective mark or certification mark. Registered
trademarks that use geographical names shall continue to be valid.
Article
11 The following marks are not permitted to be registered as a trademark:
(1) Names, devices, or designs that are generic to a class or group of
goods;
(2) Marks that merely indicate the quality, principal raw materials,
function, use, weight, quantity or other features of the goods in respect of
which the marks are used;
(3)
Other marks that lack distinctive characteristics.
A mark to which the above provisions are applicable but which
has acquired distinctiveness through use and is readily distinguishable may be
registrable as a trademark.
Article
12 Registration shall be refused where a three-dimensional design merely
indicates the shape inherent in the nature of the goods concerned. Registration
also shall be refused where a three-dimensional design is only dictated by the
need to achieve technical effects or the need to give the goods substantive
value.
Article
13 Should any rights of a trademark well known to the relevant public be
infringed, the trademark holder can follow the relevant provisions in this law
to request the protection of the said famous trademark.
Where a mark is a reproduction, imitation, or translation of
a third-party’s famous trademark which has not been registered in China and
where the goods are identical or similar, which may cause public confusion and
damage the interests of the registrant of the famous mark, no registration
shall be granted and the use of the mark shall be prohibited.
Where
a mark is a reproduction, imitation, or translation of a third-party’s famous
trademark which has been registered in China and where the goods are not
identical or dissimilar, which may mislead the public and cause injury to the
interests of the registrant of the famous trademark, no registration shall be
granted and the use of the mark shall be prohibited.
Article
14 A famous trademark, based on the parties’ request, can be defined when the
facts in each case dealing with the relevant trademark support such a
conclusion. The following factors shall be considered in making such a
determination:
(l) reputation of the mark to the
relevant public;
(2) time for continued use of the mark;
(3) consecutive time, extent and geographical area of advertisement of
the mark;
(4) records of protection of the mark as a well-known mark; and
(5) any other factors relevant to the reputation of the mark.
In
examining a trademark registration and in the course of investigating cases
involving illegal use of trademarks handled down by the authorities for
industry and commerce may, upon a claim filed by the parties involved in
accordance with Article 13 of this law, the Trademark Office may make a
determination as to whether a trademark is a famous trademark.
In
the process of handling a trademark dispute, the parties may, in accordance
with Article 13 of this law,make such
claims in regard to whether a trademark is famous; The Trademark Review and
Adjudication Board may, in accordance with the needs of a specific case, make a
determination as to whether a trademark is famous.
In
the course of hearing civil and administrative trademark cases, the parties
involved may claim rights according to the provisions of Article 13 of this
Law, and according to the specific circumstances and needs of each case, the
Supreme Court-appointed People’s Courts may make a determination, based on the
specific circumstances and needs of each case, as to whether a mark is famous.
A
producer or operator shall not use the words “Famous Trademark” on its goods,
packaging, or container, or in its advertising, exhibitions or other commercial
activities.
Article 15 Where an agent or representative,
without the authorization of the principal, seeks to register in the agent’s
name the principal’s trademark and where the principal objects, registration
shall be refused and the use of the mark shall be prohibited.
Where
a trademark used on an identical or similar product that is considered for
registration and that is the same or similar to a prior user of an unregistered
trademark, the registrant, where no prior contractual agreement or business relationship
exists between the registrant and prior user, may not register its trademark
where the prior user’s mark is clearly in use and an opposition to the
trademark’s registration has been filed.
Article
16 Where a trademark includes a geographical sign that does not describe the
location or the origin of the goods in question, the term causes confusion
among members of the public and shall be refused registration. Its use as a
trademark also shall be prohibited. However, where a registration has been obtained
in goodwill, such registration shall continue to be valid.
The geographical sign referred to in the above paragraph
means that it is the place of orign on the goods at issue and that the special
qualities, reputation or other characteristics of the goods are primarily
determined by the natural conditions or other humanistic conditions of the
geographical location involved.
Article
17 Any foreigner or foreign enterprise desirous of applying for the
registration of a trademark in China shall file an application in accordance
with any agreement concluded between the People’s Republic of China and country
to which the applicant belongs, or according to the international treaty to
which both countries are parties, or on the basis of the principle of reciprocity
Article
18 An applicant may independently handle trademark registration other trademark
matters, and may also authorize a legally established trademark agency to
handle trademark matters.
Any
foreigner of foreign enterprise desirous of applying for the registration of a
trademark or processing any other trademark matters in China shall retain any
of the organizations designated by the State to be his or its agent.
Article
19 A trademark agency shall abide by
principles of good faith, abide by relevant laws and administrative
regulations, and handle trademark registration and other trademark matters
according to the instructions of its principals; a trademark agency shall also
be obliged to keep secret any confidential information and trade or business
secrets obtained through the performance of its duties.
Where a
principal applies for registration of any trademark that may not be registered
in accordance with this Law, the trademark agency shall explicitly inform the
principal.
Where a
trademark agency knows or should know that a trademark registration applied for
by the principal violates the provisions of Article 15 and Article 32 of this
law, the trademark agency shall not act as an agent for said principal in
application for registration of that trademark.
Except
for applying the use of one’s own trademark, a trademark agency shall not
register other trademarks.
Article
20 A Trademark Agency Organization shall, according to the regulations,
strictly enforce standards for qualification of membership, and severely punish
those members who violate standards of self-discipline. A Trademark Agency
Organization shall make available to the public membership information and
information related to the disciplining of membership and agency organization
who have violated its standards.
Article
21 A Trademark Agency Organization involved in the registration of
international trademarks shall abide by establishing regulations concluded to
in international treaties signed by or joined in by the People’s Republic of
China. Specific measures shall be formulated by the State Council.
Article
22 The applicant shall indicate on the application the class of goods and
describe the goods with which the mark is used, based on the prescribed
schedule of classes of goods, and shall file an application.
The
applicant can apply the same trademark for goods in different classes with an
application.
The trademark registration applications
and other relevant documents can be filed in writing or by other electronic
means of data transmission.
Article
23 Where a trademark registrant intends to use the trademark in connection with
other goods in the same class for which the registration was granted, a new
application shall be filed.
Article
24 Where any word or device of a registered trademark is to be altered, a new
application shall be filed.
Article 25 An application for registration of a mark filed by
a party that has previously duly filed an application to register the same mark
in connection with the same goods in a foreign country shall be accorded
priority in accordance with any agreement concluded between the PRC and the
foreign country concerned, or with the international treaty to which both
countries are parties, or on the basis of the principle of reciprocity,
provided that the application in China is filed within six months from the date
on which the application was first filed in the foreign country.
An applicant claiming priority in accordance with the above
provision shall so state in writing at the time of filing the application and
shall submit within three months a copy of the original trademark application.
An applicant who fails to claim priority in writing or to submit a copy of the
original trademark application by the specified time shall be deemed as not
claiming priority.
Article
26 Where an applicant uses a trademark for the first time on goods displayed at
an international exhibition organized or recognized by the Chinese Government,
it may claim priority provided it files an application to register the mark
within six months from the date of the exhibition.
An
applicant claiming priority in accordance with the above provision shall so
state in writing at the time of filing the application and shall submit within
three months the name of the exhibition, evidence proving the use of the mark
on the goods displayed, and documents validating the date of the exhibition. An
applicant who fails to claim priority in writing or to submit the papers shall
be deemed as not claiming priority.
Article
27 Matters submitted in the trademark application and all information provided
shall be truthful, accurate, and complete.
Article
28 Where a trademark application complies with the relevant provisions of this
Law, the Trademark Office shall complete its examination within nine months
from the time of its acceptance of the application, and shall publish its preliminarily
examination.
Article
29 Where the content of trademark registration application is deemed to require
further explanation or revision in the course of examination, the Trademark
Office may require the applicant to submit further explanation or revision.
Where no explanation or revision is given by the applicant, a lack of said
revision or explanation will not affect the Trademark Office’s examination
decision.
Article
30 Where a trademark application does not complies with the relevant provisions
in this Law or is identical with or similar to a registered trademark used in
connection with the same or similar goods, its registration shall be refused by
the Trademark Office after examination and the mark shall not be published.
Article
31 Where two or more applicants apply to register identical or similar
trademarks for use in connection with the same or similar goods, the Trademark
Office shall first examine and approve for publication the mark with the
earliest application date. Where the applications are filed on the same date,
the Trademark Office shall first examine and approve for publication the mark
with the earliest date of use. Registration of the other trademark applications
shall be refused and the marks shall not be published.
Article
32 No trademark application shall infringe upon another party’s existing prior
rights. Nor shall an applicant rush to register in an unfair manner a mark that
is already in use by another party and enjoys substantial influence.
Article 33 Any holder of prior rights, or interested party
may, within three months from the date of publication, in violation of the
provisions of Article 13 Paragraph 2, Article 13 Paragraph 3, Article 15,
Article 16 Paragraph 1, Article 30, Article 31, or Article 32, or any person
may, in violation of the provisions of Article 10, Article 11, or Article 12,
file to oppose a trademark application that has been published after a
preliminary examination and approval. Where no opposition is filed after three
months, the application shall be approved for registration, a certificate of
registration shall issue, and the mark shall be published.
Article 34 Where registration is refused and the mark has not
been published, the Trademark Office shall notify the applicant of the refusal
in writing. Where the applicant is dissatisfied, it may, within fifteen days
from receipt of the notification, apply for a review. The Trademark Review and
Adjudication Board shall make a final decision within nine months from the
acceptance of the application, and notify the applicant in writing. If an
extension is needed, upon the approval of the department of industry and
commerce administration under the State Council, the time limit can be extended
for a further three months.
Where the applicant is dissatisfied with the decision of the
Trademark Review and Adjudication Board, it may appeal to the People’s Court
within 30 days from receipt of the notification.
Article 35 Where an opposition is filed
against a trademark application published after a preliminary examination, the
Trademark Office shall hear the facts and grounds submitted by the opposing
party as well as the opposed, shall make a decision on whether or not to
approve the application for registration within the twelve months from the date
of publication after investigation and verification, and shall notify the
opposing party and the opposed of its decision, in writing. If an extension is
needed, upon the approval of the department of industry and commerce
administration under the State Council, the time limit can be extended a
further three months.
If
the Trademark Office makes a decision to approve an application for
registration, a certificate of registration shall be issued, and the mark shall
be published. If the opposing party is dissatisfied with the decision, it may
file a request for invalidation of the registered trademark according to the
provisions of Article 44 or Article 45 of this Law to the Trademark Review and
Adjudication Board.
Where
the Trademark Office makes a decision to approve an application for
registration, and if the opposing party is dissatisfied with the decision, it
may file its dissatisfaction, within 15 days from the receipt of notification,
in writing, to the Trademark Review and Adjudication Board for further review.
The Trademark Review and Adjudication Board shall make a review decision within
twelve months from the acceptance of the application, and notify the opposed
and the opposing party in writing. If an extension is needed, upon the approval
of the department of industry and commerce administration under the State
Council, the time limit can be extended for another three months. If the
opposing party is dissatisfied with the decision of the Trademark Review and
Adjudication Board, it may institute legal proceedings with a People’s Court
within thirty days from its receipt of notification. The People’s Court shall
notify the opposing party in the trademark review proceedings, who shall
participate in the proceedings as a third party.
In
the course of review of the Trademark Review and Adjudication Board, in
accordance with the provisions of the preceding paragraph, if determining the
relevant prior rights will be based on an outcome determined by a court, or
handled by an administrative organization, review for the trademark may be
suspended. The proceedings for the review shall resume after the causes of the
suspension have been eliminated.
Article
36 Article 36. After the expiration of the time limit, where an applicant fails
to apply to the Trademark Office for a review of the office’s overruling
decision or decision of no registration, or to institute legal proceedings with
a People’s Court contesting the decision of the Trademark Review and
Adjudication Board, the decision shall go into effect.
Where an applicant fails to apply to the Trademark Office for
a review of the Office’s decision or to institute legal proceedings with a
People’s Court contesting the decision of the Trademark Review and Adjudication
Board within the statutory time limits, the decision shall go into effect.
Where
others use an identical or similar mark for the same or similar goods are not
retroactive within the period of time from the expiration date of its
publication period to the date of making the approval application for registration.
Where the mark was used with ill will and caused damages to an applicant, the
party with ill will shall be held liable for damages.
Article 37 Trademark applications and
applications for review shall be examined promptly.
Article 38 Where a trademark applicant or
trademark registrant discovers an obvious error on the trademark application or
on the certificate of registration, it may apply to have it corrected. The
Trademark Office shall make corrections to the extent permitted by its functions
and powers in accordance with the law and shall notify the party
concerned.
Article 39 A trademark registration shall remain valid for a
period of ten years from the date of approval for registration.
Article 40 Where the registrant intends to continue to use the
registered trademark beyond the 10-year period, an application to renew the
registration shall be made within twelve months prior to the date of
expiration. Where no application for renewal is filed within the six-month
period, a grace period of six months is allowed. A trademark registration may
be renewed each time for a period of ten years within one day after the
expiration of the previous validity time. If no application for renewal is
filed at the expiration of the grace period, the registered trademark shall be
cancelled.
After a trademark registration is renewed, it shall be
published.
Article 41 Where, after the registration of a trademark, the
name, address, or other matters pertaining to the registrant change, an
application regarding the change shall be filed.
Article 42 To assign a registered trademark, the assignor and
assignee shall sign a transfer agreement and jointly file an application with
the Trademark Office. The assignee shall guarantee the quality of the goods in
connection with which the mark is used.
To
assign a registered trademark, where a trademark registrant registered a
similar trademark on the same goods, or the same or similar trademark on
similar goods, the trademark registrant shall concurrently assign its
trademarks.
The
Trademark Offices shall not approve any assignment for a trademark, which may cause public confusion or other unhealthy influence, and shall notify
the applicant of the reasons for the refusal in writing.
The
assignment of a registered trademark shall be published after it has been
approved. The assignee shall enjoy exclusive right to use the mark starting
from the date of publication.
Article
43 A trademark registrant may, by signing a trademark licensing agreement,
authorize other parties to use its registered trademark. The licenser shall
supervise the quality of the goods in connection with which the licensee uses
its registered trademark and the licensee shall guarantee the quality of the
goods in respect of which the registered trademark is used.
Where a party is licensed to use another party’s registered trademark,
the name of the licensee and the place of origins of the goods must be
indicated on the goods that bear the registered trademark.
Where
a party is licensed to use another party’s registered trademark, the licensor
shall submit the trademark license to the Trademark Office for its records. The
Trademark Office shall publish all such records received. A trademark license
without recordation with the Trademark Office cannot be used against any third
parties.
Article
44 Where a trademark registration violates the provisions of Articles 10, 11,
and 12 of this Law, or the registration of a trademark was acquired by fraud or
any other improper means, the Trademark Office shall invalidate the
registration at issue. Any organization or individual may request that the
Trademark Review and Adjudication Board make a ruling to invalidate such a
registered trademark.
To make a ruling to invalidate a registered trademark, the Trademark
Office shall notify the parties in writing. The parties who refuse to accept
the Trademark Office’s decision may apply for a review within 15 days after
receiving the decision. The Trademark Review and Adjudication Board shall make
its final decision within nine months from its acceptance of the review
application, and notify the applicant in writing. If an extension is needed,
upon approval of the department of industry and commerce administration under
the State Council, the time limit can be extended for three months. The
parties, if not satisfied with the review decision of the Trademark Review and
Adjudication Board may, within 30 days after receiving the reviewing decision,
bring suit to a People’s Court.
If any
organization or individual requests that the Trademark Review and Adjudication
Board make a ruling to invalidate such a registered trademark, the Trademark
Review and Adjudication Board shall notify the relevant parties after receiving
the request, and request them to submit arguments by a specified time. After
the Trademark Review and Adjudication Board have made a final ruling either to
maintain or to invalidate a registered trademark, it shall notify the
interested parties accordingly in writing. If an extension is needed, upon the
approval of the department of industry and commerce administration under the
State Council, the time limit can be extended for three months. Where an
interested party is dissatisfied with the ruling of the Trademark Review and
Adjudication Board, it may, within thirty days from the receipt of
notification, institute legal proceedings in a People’s Court. The People’s
Court shall notify other interested parties in the trademark adjudication
proceedings to take part in the legal proceedings as third parties.
Article
45 Where a trademark registration violates the provisions of Articles 10
Paragraph 2 and Paragraph 3, Article 15, Article 16 Paragraph 1, Article 30,
Article 31 or Article 32 of this Law, any holder of prior rights or any
interested party may, within five years from the date of registration, request
that the Trademark Review and Adjudication Board make a ruling to invalidate
the trademark’s registration. Where the registration was obtained with ill
will, the owner of a famous trademark shall not be bound by the five-year
limitation.
The
Trademark Review and Adjudication Board shall, after receipt of an application
for invalidating a trademark, notify the interested parties and request them to
submit arguments by a specified time. The Trademark Review and Adjudication
Board shall make a final ruling either to maintain or to invalidate a
registered trademark within twelve months from the acceptance of the
application, and notify the parties in writing. If an extension is needed, upon
the approval of the department of industry and commerce administration under
the State Council, the time limit can be extended for six months. Where the
interested party is dissatisfied with the ruling of the Trademark Review and
Adjudication Board, it may, within thirty days from the receipt of
notification, institute legal proceedings in a People’s Court. The People’s
Court shall notify the other interested parties in the trademark adjudication
proceedings to take part in the legal proceedings as third parties.
In the course
of review for invalidating the announcements of the Trademark Review and
Adjudication Board in accordance with provisions of the preceding paragraph, if
determining the involving prior rights shall be based on the outcome of judged
by the court, or handled by administration organization, review for the
trademark can be suspended. The proceedings for review shall resume after the
causes of the suspension have been eliminated.
Article
46 After the expiration of the time limit, where the parties fail to bring suit
to a People’s Court for a review of invalidating the registered trademark
handled by the Trademark Office, or review decisions, decisions on maintaining
the registered trademark or decisions regarding invalidating the registered
trademark handled by the Trademark Review and Adjudication Board, the decision
of the Trademark Office, review decisions or rulings of the Trademark Review
and Adjudication Board, shall go into effect.
Article
47 In the event that a registered trademark is invalidated according to the
provisions of Article 44 or Article 45, the invalidation of a registered
trademark shall be publicized by the Trademark Office, and the exclusive right
to use that trademark shall be deemed as not having existed from the very
beginning of proceedings.
A
decision or ruling pertaining to the invalidation of a registered trademark
shall not be applied retrospectively against prior rulings, nor made and
enforced by, the administrative department of industry and commerce concerning
trademark infringement cases, or contracts for the transfer of a trademark or
for an already enacted licensed use of a trademark. However, if any loss has
been caused through the ill will of a trademark registrant to any other party,
such loss shall be compensated.
The
damages for trademark infringement, transfer fees or royalties for trademark
rights, in accordance with the provision of the preceding paragraph, shall be
refunded in whole or in part.
Article
48 The use of trademarks as stipulated in this Law refers to the affixation of
trademarks to commodities, commodity packaging or containers, as well as
commodity exchange documents or the use of trademarks in advertisements,
exhibitions, and for other commercial activities, in order to identify the
source of the goods.
Article 49 Where a trademark
registrant alters a registered trademark without approval, the name, address,
or other matters concerning the registrant without approval, the Trademark
Office shall order it to rectify the situation by a specified time; If they
still fail to rectify during the specified time period, the Trademark Office
shall cancel the registered trademark.
Where a registered trademark
is becoming a generic name in a category of approved goods, and the mark has
not been used for a period greater than three years without any justifiable
reasons, any organization or individual may request that the Trademark Office
make a decision to cancel such registered trademark. The Trademark Office shall
make a decision within nine months from its acceptance of an application for
the cancellation of a registered trademark due to nonuse. If an extension is
needed, upon the approval of the department of industry and commerce
administration under the State Council, the time limit can be extended for a further
three months.
Article
50 Where a registered trademark has been cancelled, invalidated or has not been
renewed upon expiration, the Trademark Office shall not approve any application
for the registration of a trademark that is identical to or similar with the
said trademark for a period of one year from the date of cancellation,
invalidation, or the date of expiration.
Article
51 Where a party violates the provisions of Article 6 of this Law, the local
administrative authority for industry and commerce shall order it to file an
application to register the mark within a specified period and may, if the
amount of earnings of illegal operation is more than RMB 50000, impose a fine
not more than 20 percent of earnings; if there is no illegal earnings or the
amount of earnings of illegal operation is less than RMB 50000, it may be
imposed a fine less than RMB 10000.
Article
52 Where a party that uses an unregistered trademark has committed
misrepresenting the trademark as registered, or violating the provision of
Article 10 of this Law, the local administrative authority for industry and
commerce shall prohibit the use of the trademark, and order the misrepresenting
party to rectify the situation within a specified period; if the amount of
earnings in illegal operations amounts to more than RMB 50000, a fine shall be
imposed upon that party of no less than twenty percent of the illicit earnings;
if there are no illegal earnings, or the amount of the earnings is less than
RMB 50000, a fine of less than RMB 10000 shall be imposed.
Article 53 Where a party violates
the provision of Article 15 Paragraph 5, the local administrative authority for
industry and commerce shall order the party to rectify the situation and impose
a fine of RMB 100000.
Article
54 A party that is dissatisfied with the decision of the Trademark Office to
cancel or not cancel a trademark registration may, within 15 days from receipt
of notification, apply to the Trademark Review and Adjudication Board for a
review. The Trademark Review and Adjudication Board shall make a final decision
within nine mouths from the acceptance of the application, and notify the
applicant in writing. If an extension is needed, upon the approval of the
department of industry and commerce administration under the State Council, the
time limit can be extended for a further three months. Where the applicant is
dissatisfied with the decision of the Trademark Review and Adjudication Board,
it may appeal to the People’s Court within 30 days from receipt of the notification.
Article
55 After the expiration of the time limit, where an applicant fails to apply to
the Trademark Office for a review of the office’s decision to cancel a
trademark’s registration, or to institute legal proceedings with a People’s
Court contesting the review decision of the Trademark Review and Adjudication
Board, the decision of canceling the registration, or review decision, shall go
into effect.
A registered trademark that be
canceled shall be publicized by the Trademark Office, and the exclusive right
to use the registered trademark shall be suspended from the date of
publication.
Article
56 The exclusive right to use a registered trademark is limited to the
trademark which has been approved for registration and to the goods in
connection with which the trademark is to be used.
Article 57 Any of the following constitutes an infringement
of the exclusive right to use a registered trademark:
(1) Using a trademark that is identical with a registered
trademark in connection with the same goods without the authorization of the
owner of the registered trademark;
(2) Using a trademark that is similar to a registered trademark
in connection with the same goods, or that is identical with or similar to a
registered trademark in connection with the same or similar goods, without the
authorization of the owner of the registered trademark, which may cause public
confusion;
(3)
Selling goods that violate the exclusive right to use a registered trademark;
(4)
Counterfeiting, or making, without authorization, representations of another
party’s registered trademark, or selling such representations;
(5)
Altering another party’s registered trademark without authorization and selling
goods bearing such an altered trademark;
(6)
Help any others to infringe the exclusive right to use its registered trademark
with intention to provide convenience for infringing the exclusive right to use
its registered trademark;
(7)
Otherwise causing prejudice to another party’s exclusive right to use its
registered trademark.
Article 58 Where a party uses a famous
trademark as registered, or unregistered, as an enterprise name and confuses
the public, if it constitutes unfair competition, the infringer shall be
handled in accordance with the Anti Unfair Competition Law of the People’s
Republic of China.
Article 59 An exclusive rights holder of a
registered trademark shall have no right to prohibit other people from using in
normal use the common name, logo or model contained in the relevant registered
trademark or the quality, principal raw materials, functions, uses, weight,
quantity, geographic name or other features that are explicitly expressed in
the registered trademark.
Where three-dimensional registered trademarks are by the
product’s own nature essentially the shape of the product, and provide the
goods bearing the mark with a specific value, a trademark holder shall have no
right to prohibit other parties from reasonably using a similar shape to
realize a similar special or technical effect.
Where
an identical or similar trademark has been used in connection with the same
goods or similar goods by others before the registrant’s application, the
exclusive right holder of said registered trademark shall have no right to
prohibit other people from using the aforesaid trademark from continuous use of
such trademark within the original scope, but may request its users to add
proper marks for distinction.
Article 60 When a dispute arises after a party
commits any of the acts infringing upon another party’s exclusive right to use
a registered trademark as enumerated in Article 57 of this Law, the parties
involved shall settle the dispute through consultation. Where the parties
refuse to pursue consultation or where consultation has failed, the trademark
registrant or any interested party may institute legal proceedings with a
People’s Court or ask the administrative authority for industry and commerce to
handle the matter.
Upon determining that trademark infringement has taken place,
the administrative authority for industry and commerce shall order the
infringer to cease its infringing activity immediately, confiscate and destroy
the infringing goods, and any instruments mainly used to manufacture the
infringing goods and counterfeit registered trademark. If the amount of illegal
earnings is greater than RMB 50,000, a fine up to 5 times the amount of the
illicit earnings may be imposed; if there is no illicit business revenue, or
the total amount of illicit business revenue is less than RMB 50,000, a fine up
to RMB 250,000 may be imposed; if trademark infringement occurs more than 2
times within a period of 5 years or other serious circumstances, a severe
punishment shall be given. Where a seller with no knowledge of its infringing
goods can prove the legality of acquiring such goods and point out the
provider, the administrative authority for industry and commerce shall order
the seller to cease selling its goods and the latter may be ordered to stop
selling the infringing goods.
Upon
dispute of the amount of damages arising from infringing the exclusive right of
the trademark, the parties involved may request the administrative authority
for industry and commerce to mediate in settling the amount of damages, or may
appeal to a People’s Court in accordance with the Civil Procedure Law Of the
People’s Republic of China.
Article
61 The administrative authority for
industry and commerce is authorized to investigate any conduct infringing upon
the exclusive right to use a registered trademark. Where a crime is suspected
to have been committed, the administrative authority for industry and commerce
shall promptly turn over the case to the judicial department to be dealt with
in accordance with the law.
Article
62 Administrative authorities for industry and commerce above the county level
may, based upon existing evidence of illegal conduct or information supplied by
a member of the public, exercise the following powers in investigating
activities suspected of having infringed upon another party’s exclusive right
to use a registered trademark:
(1) Question the parties involved and investigate
the circumstances surrounding the infringement of another party’s exclusive
right to use a registered trademark;
(2) Study and copy the parties’ contracts,
invoices, account books, and other materials pertaining to the
trademark-infringing activities;
(3) Conduct an on-site inspection of the premises
where the party has carried out activities allegedly infringing upon another
party’s exclusive right to use a registered trademark;
(4) Inspect articles involved in trademark-infringing
activities. Articles that are proven to have infringed upon another party’s
exclusive right to use a registered trademark may be sealed and taken into
custody.
When
the administrative department of the preceding exercise powers prescribed by
law, the parties shall assist and cooperate and shall not refuse, obstruct.
Upon
the process of investigating activities suspected of having infringed upon
another party’s exclusive right to use a registered trademark, where any
dispute arises with respected to the ownership of the trademark, or the right
owner files lawsuits of trademark infringement to a People’s Court, the
administrative authorities for industry and commerce may suspend the aforesaid
process. The proceedings for review shall resume or stop after the causes of
the suspension have been eliminated.
Article
63 The amount of damages for infringing the exclusive right to use a trademark
shall be actual losses that the right owner has suffered as a result of the
infringement during the period of the infringement; where the losses suffered
by the right owner cannot be determined, the amount of damages for trademark
infringement shall be the profits that the infringer has earned as a result of
the infringement during the period of the infringement; where the losses
suffered by the right owner, or the profits earned by the infringer, cannot be
determined, the amount of damages shall be determined based on a reasonable
amount that would be paid for a licensing royalty for the trademark right. If there
is malicious infringement and an existence of serious circumstances, the amount
may be more than one up to three times the aforesaid determined amount. The
amount of damages will also include reasonable expenses the right owner has
suffered to prevent the infringement.
For
the purpose of determining the amount of damages, where the account books and
information related to the infringement are held by the infringer, and where
the rights owner has presented as much proof of its claims as is practically possible,
a People’s Court may order the infringer to submit such account books and
information. If the infringer refuses to submit such account books and
information, or submit a false version thereof, a People’s Court may determine
the amount of damages with reference to the right owner’s claims and proof.
Where
the actual losses suffered by the right owner, the profits earned by the
infringer, or the licensing royalties of trademark infringement cannot be
determined, a People’s Court shall award damages up to RMB 3,000,000, depending
on the facts of the case.
Article
64 Where the right owner of the exclusive right to use a registered trademark
claims for damages and the infringer challenged raises a counterplea that the
right owner has never used the trademark in question, a People’s Court may
order the right owner to submit proof of using the trademark over the past
three years. http://www.shenlantm.com.Where the rights owner cannot
provide the aforesaid proof or proof of losses due to the infringement, the
infringer suspected shall bear no liability for any claimed losses.
Where a party unknowingly sells goods that
infringe upon another party’s exclusive right to use a registered trademark,
but can prove that it has obtained the goods lawfully and is able to identify
the supplier, it shall not be held liable for damages.
Article 65 Where a trademark registrant or any
interested party submits evidence proving that another party is engaged in or
will soon engage in actions that infringe upon the former’s exclusive right to
use its registered trademark and that, unless they are stopped promptly, will
cause irreparable injury to its legitimate rights and interests, may, before
filing a lawsuit, apply to a People’s Court for the granting of an injunction
prohibiting the actions and protecting its assets.
Article 66 With a view towards prohibiting
trademark-infringing activities and where evidence may be destroyed or lost or
become unobtainable in the future, a trademark registrant or an interested
party may, prior to filing a lawsuit, apply to a People’s Court to have
evidence preserved.
Article 67 Where a party, without the
authorization of a trademark registrant, uses a mark identical to the
registrant’s mark and on the same goods as those in connection with which the
registered mark is used, and where the case is so serious as to constitute a
crime, the party shall be prosecuted, according to the law, for its criminal
liabilities in addition to being required to compensate the infringe for the
damages suffered by the infringe.
Where a party counterfeits, or makes, without
authorization, representations of another party’s registered trademark, or
sells such representations, and the case is so serious as to constitute a
crime, the party shall be prosecuted, according to the law, for its criminal
liabilities in addition to being required to compensate the infringe for the
damages suffered by the infringe.
Where a party sells goods that it knows bears a
counterfeit registered trademark, and the case is so serious as to constitute a
crime, the party shall be prosecuted, according to the law, for its criminal
liabilities in addition to being required to compensate the infringe for the
damages suffered by the infringe.
Article 68 Upon occurrence of the following
circumstances, the administrative authority for industry and commerce shall
order the related trademark agencies organization to rectify the same with a
specified time and giving corresponding warning. A fine more than RMB 10000 up
to RMB 100000 may be imposed on the trademark agencies organization and a fine
more than RMB 5000 and up to RMB 50000 may be imposed on its agent in charge
and other directly responsible persons. In case the case constitutes a crime,
criminal responsibilities shall be affixed:
(1)
Forging, altering or using forged or altered legal documents, seals or
signatures during the process handling trademark matters;
(2)
Soliciting trademark agency business by defaming another trademark agency or
using other unfair manners to disturb the order of the trademark agency market;
(3)
Violating the provisions of Article 19 Paragraph 3 and Paragraph 4 of this Law;
Where a trademark agency organization has
aforesaid circumstances, the administrative authorities for industry and
commerce shall record aforesaid circumstance into the credit files. In case of
serious circumstance, the Trademark Office, or the Trademark Review and
Adjudication Board may order the trademark agency organization to stop
processing business for trademark, and it shall be punished.
Where a trademark agency organization violates
the principle of good faith and infringes the principal’s legal interests, such
organization shall assume civil liability according to the law, and be punished
by the trademark trade organization according to the articles of association.
Article 69 Article 60 State personnel engaged
in trademark registration, administration, and review shall be impartial in
implementing the law, incorruptible and self-disciplined, and devoted to their
duty, and shall provide civilized services.
State personnel in the Trademark Office and the
Trademark Review and Adjudication Board and other personnel engaged in
trademark registration, management, and review shall not be involved in
trademark agency services or in the production or buying and selling of goods.
Article 70 Administrative authorities for
industry and commerce shall establish and perfect an internal supervisory
system to supervise and inspect the way state personnel responsible for
trademark registration, administration, and review implement the law and
administrative rules and regulations and observe discipline.
Article 71 Where state personnel engaged in
trademark registration, administration, and review are derelict of duty, abuse
their office, and practice fraud for personal considerations; where they handle
trademark registration, administration, and re-examination matters in violation
of the law; where they accept money or properties from a party in a trademark
matter; where they seek improper gains; and where the case is so serious as to
constitute a crime, they shall be prosecuted, according to the law, for their
criminal liabilities. Where the case does not constitute a crime, the worker
involved shall be subject to disciplinary measures.
Article 72 Any application for a trademark registration and
for the processing of other trademark matters shall be subject to the payment
of the prescribed fee. The schedule of fees shall be prescribed separately.
Article 73 This Law shall enter in force on 1
March 1983. The Regulations for Trademark Administration promulgated by the
State Council on 10 April 1963 shall be abrogated on the same date, and any
other regulations pertaining to trademarks which conflict with this Law shall
cease to be effective at the same time.
Trademarks registered before this Law enters
into force shall continue to be valid.
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