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3rd Amendment of Tra...
(2015-3-18)
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On August 30, 2013, NPC Standing Committee announced approval of the
3rd Amendment to Trademark Law of the People’s Republic of China (hereinafter
“the Amendment”).
Major changes subject
to the Amendment are highlighted as follows:
I. Geared to International trademark
systems, the Amendment introduces applicant-friendly mechanisms:
Sound mark becomes registrable.
Multi-class filing becomes
possible.
Examiner’s Opinion procedure is
resumed, and the Trademark Office may issue Notice of Examiner’s Opinion to
trademark applicants during examination, requiring applicants to make
explanation or amendment to their trademark applications.
Examination terms are set forth for
several examination procedures, such as application for registration (9
months), opposition (12 months), review of refusal (9 months), review of
opposition (12 months), non-use cancellation (9 months), to ensure examination
efficiency.
Circumstances of suspension on
examination are prescribed to give adequate consideration to fairness.
II. Significant changes take place in
trademark opposition procedure:
While oppositions based on absolute
grounds can still be filed by anyone, oppositions based on relative grounds can
only be filed by prior right owners or interested parties.
Aiming at simplifying and speeding up
opposition procedure, the Amendment stipulates that, if Trademark Office
believes that an opposition is not justified, the opposed trademark shall be
approved for registration, and the opponent being dissatisfied with the
decision shall apply for invalidation of the mark with the Trademark Review and
Adjudication Board; whereas if the Trademark Office decides that the opposition
is tenable and that the opposed mark shall not be approved for registration,
the trademark applicant can apply for review with the Trademark Review and
Adjudication Board.
III. The Amendment calls for honesty,
credit and fair play
The principle of good faith is
explicitly included into the Trademark Law.
The Amendment prohibits use of the term
“well-known mark” for promotional purposes.
Based on the existing Article 15 under
China Trademark Office, the Amendment adds a new paragraph prohibiting a party
having contractual or business relationship or other relationship with the
owner of a mark from preempting the mark without the owner’s
authorization.
Clearer rules are given on the
professional conduct of trademark agencies.
IV. Enhancing trademark protection
while defining reasonable defenses:
The Amendment broadens the category of
trademark infringement acts by upgrading “knowingly providing convenience for
acts infringing upon another person’s exclusive right to use a registered
trademark, or helping others implement acts infringing upon such exclusive
right to use a registered trademark” from the Implementing Regulations to the
Trademark Law.
The Amendment increases punishment on
trademark infringement acts. The administrative authority for industry and
commerce may impose a fine of not more than 5 times of the illegal sales
associated with trademark infringement if the amount of the illegal sales
exceeds 50,000 yuan, or a fine of less than 250,000 yuan if there are no
illegal sales or if the amount of such illegal sales is less than 50,000 yuan.
Heavier punishment shall be imposed against those who have committed two or
more trademark infringement acts within five years or fall in other serious
circumstances.
In light of the trademark right
holders’ difficulty in proof and the consequent results of low compensation
amount for damages in practice, the Amendment stipulates that, in order to
determine the amount of damages, the people’s court may order the infringer to
provide account books and materials related to the infringement, and may
determine the amount of damages with reference to the trademark right owner’s
claims and evidence if the infringer fails to provide such account books or
materials or the account books or materials provided by the infringer are
false.
Adding provision on punitive
compensation and increasing the compensation amount for trademark infringement,
the Amendment stipulates that in case of bad-faith infringement with serious
circumstances, the amount of damages may be determined between 1 to 3 times of
the actual losses suffered by the trademark right owner, profit gained by the
infringer, or the license fee of the trademark. At the same time, the limit of
statutory damage is also increased from 500,000 RMB Yuan to 3,000,000 RMB
Yuan.
The Amendment also includes a new
provision on the exemption of liability for damages: if the trademark owner
claims for damages and the alleged infringer makes defense on the ground that
the trademark owner has not used the registered trademark, the people’s court
may require the owner to present evidence of his or its actual use of the
registered trademark in the past three years. If the owner cannot prove its
actual use of the registered trademark in the past three years or any other
losses he or it has suffered as result of the infringement, the alleged
infringer shall not be held liable for damages.
"Prior-use based right": If a
person has begun using a trademark identical with or similar to a registered
trademark in respect of identical or similar goods before the filing date of
the registered mark, the registrant shall have no right to prohibit the person
from continuing use of the trademark in the original scope of use, but the
trademark registrant may require the person to attach appropriate indications
to distinguish. |
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