(Adopted at the 24th Meeting of the Standing Committee of the Fifth National People's Congress on August23,1982, amended for the first time in accordance with the Decision on Revising the Trademark Law of the People's Republic of China adopted at the 30th Meeting of the Standing Committee of the Seventh National People's Congress on February 22, 1993, and amended for the second time in accordance with the Decision on Revising the Trademark Law of the People's Republic of China adopted at the 24th Meeting of the Standing Committee of the Ninth National People's Congress on October27, 2001) TABLE OF CONTENTS CHAPTER I General Provisions CHAPTER II Application for Trademark Registration CHAPTER III Examination and Approval of Trademark Registration Trademarks CHAPTER IV Renewal, Assignment and Licensing of Registered CHAPTER V Determination of Disputes Concerning Registered Trademarks CHAPTER VI Administrative Control of the Use of Trademarks CHAPTER VII Protection of the Right to Exclusive Use of a Registered Trademark CHAPTER VIII Supplementary Provisions CHAPTER I General Provisions Article 1 This Law is enacted for the purposes of improving the administration of trademarks, protecting the exclusive right to use a trademark, and encouraging producers to guarantee the quality of their goods and maintain the reputation of their trademarks, with a view to protecting the interests of consumers, producers and proprietors and promoting the development of a socialist market economy. Article 2 The Trademark Office of the administrative department for industry and commerce under the State Council shall be in charge of the work of trademark registration and administration throughout the country. The administrative department for industry and commerce under the State Council shall establish a Trademark Review and Adjudication Board to be responsible for handling trademark disputes. Article 3 Registered trademarks refer to trademarks that have been approved and registered by the Trademark Office, including goods marks, service marks, collective marks and certification marks. 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 refers to a mark registered in the name of a group, association, or any other organization and used in business by its members to indicate membership. For the purposes of this law, a certification mark refers to 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 administrative authorities 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, manufactured, processed, selected, or marketed by it or him shall file an application for the registration of the goods mark with the Trademark Office. Any natural person, legal person, or other organization desirous of acquiring the exclusive right to use a service mark for the services provided by it or him shall file an application for the registration of the service mark with the Trademark Office. Provisions Regarding the goods trademarks in this Law shall be applicable to service trademarks. 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 With respect to goods that the State has designated as requiring the use of a registered trademark, an application for trademark registration must be filed; the goods may not be sold on the market before registration is granted. Article 7 Any user of a trademark shall be responsible for the quality of the goods in respect of which the trademark is used. The administrative authorities for industry and commerce at all levels shall, through the administration of trademarks, exercise supervision over the quality of the goods and shall prohibit any practice that defrauds the consumers. Article 8 Any visible sign able to distinguish the goods of a natural person, legal person, or other organization from those of others, including any word, device, any letter of the alphabet, any number. three-dimensional symbol, and color combination, or any combination thereof, may be applied for registration as a trademark. Article 9 A trademark seeking registration shall be so distinctive as to be distinguishable and shall rot conflict with the prior legitimate rights of others. A trademark registrant shall have the right to indicate the wording Registered Trademark' or a sign indicating that it is registered. Article 10 The following signs shall not be used as trademarks: (1) those identical with or similar to the State name, national flag, national emblem, military flag, or decorations, of the People's Republic of China; those identical with 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 the permission of the government of the country involved (3) those identical with or similar to the flags, emblems, or names 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 having the nature of discrimination against any nationality (7) those having the nature of exaggeration and fraud in advertising (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 meanings or constitute part of a collective mark or certification mark. Where a trademark using any of the above-mentioned geographical names has been registered, it shall continue to be valid. Article 11 The following marks shall not be registered as trademarks: (1) names, devices, or model numbers 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) marks that lack distinctive characteristics Any mark referred to in the preceding paragraph, may be registered as a trademark where it has acquired distinctiveness through use and is readily distinguishable. Article 12 Where a three-dimensional sign is applied for registration as a trademark, registration shall be refused if the three-dimensional sign merely indicates the shape inherent in the nature of the goods concerned or if the three-dimensional sign is only dictated by the need to achieve technical effects or the need to give the goods substantive value. Article 13 Where a mark is a reproduction, imitation, or translation of a third-party's well-known trademark which has not been registered in China in respect of identical or similar goods, which may cause public confusion and damage the interests of the registrant of the well-known 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 well-known trademark which has been registered in China in respect of different or dissimilar goods, which may mislead the public and cause injury to the interests of the registrant of the well-Known trademark, no registration shall be granted and the use of the mark shall be prohibited. Article 14 The following factors shall be considered in determining whether or not a mark is a well-known trademark: (1) the degree of public recognition of the mark in its trading areas (2) how long the mark has been in use (3) the duration and extent of advertising and publicity of the mark, and the geographical extent of the trading areas in which the mark is used (4) the protection of the mark as a well-known trademark (5) other reasons for the fame of the trademark Article 15 Where an agent or representative, without the authorization of the client, seeks to register in the agent's name the client's trademark and where the client opposes, registration shall not be granted and the use of the mark shall be prohibited. Article 16 Where a trademark includes a geographical indication that does not describe the location or the origin of the goods in question, and causes confusion to the public, registration shall not be granted and the use of the mark shall be prohibited. However, where a registration has been obtained in goodwill such registration shall continue to be valid. The geographical indication referred to in the preceding paragraph means that it is the place of origin of 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 Where a foreigner or foreign enterprise applies for trademark registration in China. the matter shall be handled in accordance with any agreement concluded between the country to which the applicant belongs and the People's Republic of China, or any international treaty to which both countries are parties, or on the basis of the principle of reciprocity. Article 18 Any foreigner or foreign enterprise desirous of applying for the registration of a trademark or handling any other trademark matters in China shall entrust any of the organizations designated by the State to be his or its agent. CHAPTER II Application for Trademark Registration Article 19 An applicant for trademark registration shall report, in accordance with the prescribed classification of goods. the class of the goods and the designation of the goods on which the trademark is to be used. Article 20 Where the applicant intends to use the same trademark for goods in different classes. an application shall be filed for each class based on the prescribed schedule of classes of goods. Article 21 If a registered trademark needs to be used on other goods of the same class. a new application for registration shall be filed. Article 22 Where any word or device of a registered trademark is to be altered, a new application shall be filed. Article 23 If a change needs to be made in the name, address or any other registered matter concerning the registrant of a registered trademark, an application to make the change shall be filed. Article 24 An application for registration of a mark filed by a panty 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 People's Republic of China 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 preceding paragraph 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 25 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 that 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 preceding paragraph 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 26 Matters submitted in the trademark application and all information provided shall be truthful, accurate, and complete. CHAPTER III Examination and Approval of Trademark Registration Article 27 When an application has been made to register a trademark that is in conformity with the relevant provisions of this Law, the Trademark Office shall make a preliminary examination and approval of that trademark and shall publicly announce it. Article 28 If an application has been made to register a trademark that is not in conformity with the relevant provisions of this Law or that is identical with or similar to another person's trademark which has already been registered or given preliminary examination and approval for use on the same kind of goods or similar goods, the Trademark Office shall reject the current application and shall not publicly announce that trademark. Article 29 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 earlier 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 earlier date of use. Registration of the other trademark applications shall be refused and the marks shall not be published. Article 30 Any person may, within three months from the date of publication, 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 31 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 that enjoys substantial influence, Article 32 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 decision and notify the applicant in writing. Where the applicant is dissatisfied with the decision of the Trademark Review and Adjudication Board, it may, within 30 days from receipt of the notification, appeal to the People's Court. Article 33 Where an opposition is filed against a trademark published after preliminary examination, the Trademark Office shall hear the facts and grounds submitted by the protestor and the opposed and shall make a decision after investigation and verification. Where a party is dissatisfied with the decision, it may, within 15 days from the receipt of notification, apply in writing to the Trademark Review and Adjudication Board for a review. The Trademark Review and Adjudication Board shall rule on the case and shall notify both the protestor and the opposed in writing accordingly. Where a 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 with the People's Count. The People's Count shall notify the other party in the trademark review proceedings, which shall participate in the proceedings as the third panty. Article 34 Where an applicant fails to apply to the Trademark Office for a review of the Office's decision or fails to institute legal proceedings with the 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 the opposition is rejected, the mark shall be approved for registration, a certificate of registration shall issue, and the mark shall be published. Where the opposition is upheld, registration of the mark shall be refused. Where the Board or the count rules against the protestor and approves the trademark for registration, the applicant may date its exclusive right to use the mark from three months after the date of publication of the mark following its preliminary examination. Article 35 Trademark applications and applications for review shall be examined promptly. Article 36 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 panty concerned. The correction of errors provided for in the preceding paragraph shall not involve substantive matters in the application or registration documents. CHAPTER IV Renewal, Assignment and Licensing of Registered Trademarks Article 37 The period of validity of a registered trademark shall be ten years, counted from the day the registration is approved. Article 38 If a registrant needs to continue to use the registered trademark after the period of validity expires, an application for renewal of registration shall be made within six months before the expiration. If the registrant fails to make such an application within that period, an extension period of six months may be granted. If no application has been filed before the extension period expires, the registered trademark shall be cancelled. The period of validity for each renewal of registration shall be ten years. After a renewal of registration has been approved, it shall be publicly announced. Article 39 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. 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 40 A trademark registrant may, by concluding a trademark licensing contract, authorize another person to use its registered trademark. The licensor shall supervise the quality of the goods on which the licensee uses the licensor's registered trademark, and the licensee shall guarantee the quality of the goods on which the registered trademark is to be used. If 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. The trademark licensing contract shall be submitted to the Trademark Office for the record. CHAPTER V Determination of Disputes Concerning Registered Trademarks Article 41 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 cancel the registration at issue. Any organization or individual may request that the Trademark Review and Adjudication Board make a ruling to cancel such a registered trademark. Where a registration violates the provisions of Articles 13,15,16, or 31 of this Law, the owner of a trademark or any interested panty may, within five years from the date of registration, request that the Trademark Review and Adjudication Board make a ruling to cancel the registration. Where the registration was obtained with ill will, the owner of a well-known trademark shall not be bound by the five-year limitation. In addition to those cases as provided for in the two preceding paragraphs, any panty desirous of contesting a trademark registration, may, within five years from the date of approval of the registration, apply to the Trademark Review and Adjudication Board for adjudication. The Trademark Review and Adjudication Board shall after receipt of the application for adjudication, notify the interested parties and request them to submit arguments by a specified time. Article 42 If an opposition was filed and a ruling already made prior to the approval of the registration of a trademark, the same facts and reasons may not be used in an another application for a ruling. Article 43 After the Trademark Review and Adjudication Board has made a final ruling either to maintain or to cancel a registered trademark, it shall notify the interested parties accordingly in writing. 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 the 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 panties. CHAPTER VI Administrative Control of the Use of Trademarks Article 44 Where a trademark registrant commits any of the following, the Trademark Office shall order it to rectify the situation by a specified time or cancel the registered trademark: (1) altering the registered trademark without approval (2) altering the name, address, or other matters concerning the registrant without approval (3) assigning the trademark without approval (4) ceasing to use the registered trademark for three consecutive years Article 45 If a registered trademark is used on crudely manufactured goods that are passed off as being of high quality, thus deceiving consumers, the administrative departments for industry and commerce at various levels shall, according to the circumstances, order rectification of the situation within a specified period and may. in addition, circulate a notice on the matter or impose a fine, or the Trademark Office may revoke the registered trademark. Article 46 If a registered trademark is revoked or is not renewed after its period of validity expires, the Trademark Office shall not approve any application for the registration of a trademark identical with or similar to the said trademark within one year from the day of the revocation or cancellation. Article 47 In the event of a violation of the provisions of Article 5 of this Law, the local administrative department for industry and commerce shall order the violator to file an application for registration within a specified period and may, in addition, impose a fine. Article 48 In the event of any of the following acts concerning the use of an unregistered trademark, the local administrative department for industry and commerce shall stop the use of the trademark. order rectification of the situation within a specified period and may, in addition, circulate a notice on the matter or impose a fine: (1) if the trademark is falsely represented as being a registered one (2) if the trademark violates the provisions of Article 8 of this Law (3) if the trademark is used on crudely manufactured goods that are passed off as being of high quality thus deceiving consumers Article 49 A party that is dissatisfied with the decision of the Trademark Office to cancel a registration may, within fifteen 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 and notify the applicant in writing. Where the party is dissatisfied with the decision of the Trademark Review and Adjudication Board. it may institute legal proceedings with the People's Court within 30 days from receipt of notification. Article 50 Where the party involved is dissatisfied with the decision of the administrative authorities for industry and commerce to impose a fine under Articles 45, 47, or 48 of this Law, it may, within 15 days from receipt of notification, institute legal proceedings with the People's Count. Where the party neither complies with the decision nor institutes legal proceedings within a specified period, the administrative authorities for industry and commerce concerned may request the People's Court to enforce the decision. CHAPTER VII Protection of the Right to Exclusive Use of a Registered Trademark Article 51 The right to exclusive use of a registered trademark shall be limited to trademarks which have been approved for registration and to goods on which the use of a trademark has been approved. Article 52 Any of the following conducts constitutes an infringement of the exclusive right to use a registered trademark: (1) using a trademark 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 (2) selling goods that violate the exclusive right to use a registered trademark (3) counterfeiting, or making, without authorization, representations of another panty's registered trademark, or selling such representations (4) altering another party's registered trademark without authorization and selling goods bearing such an altered trademark (5) otherwise causing prejudice to another panty's exclusive right to use its registered trademark Article 53 When a dispute arises after a party commits any of the acts infringing upon another panty's exclusive right to use a registered trademark as enumerated in Article 52 of this Law, the panties 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 the People's Court or ask the administrative authorities for industry and commerce to handle the matter Upon determining that trademark infringement has taken place, the administrative authorities for industry and commerce shall order the infringer to cease its infringing activity immediately, shall confiscate and destroy the infringing goods and any instruments specifically used to manufacture the infringing goods and counterfeit registered trademark, and even shall impose a fine. Where the panty is dissatisfied with the decision of the administrative authorities for industry and commerce, it may, within 15 days from the receipt of notification, institute legal proceedings with the People's Court in accordance with the Administrative Procedural Law of the People's Republic of China. Where the infringer neither institutes legal proceedings nor complies with the decision within the specified period, the administrative authorities for industry and commerce may request that the People's Court enforce its decision. Where a panty so requests, the administrative authorities for industry and commerce handling a dispute may mediate in settling the amount of damages. Where mediation fails, a panty may institute legal proceedings with the People's Count in accordance with the Civil Procedural Law of the People's Republic of China. Article 54 Administrative authorities for industry and commerce are 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 authorities for industry and commerce shall promptly turn over the case to the judicial department to be dealt with in accordance with the law. Article 55 Administrative authorities for industry and commerce at or 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 panty's exclusive right to use a registered trademark: (1) question the panties 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, books, and other materials pertaining to the trademark-infringing activities (3) conduct an on-site inspection of the premises where the panty 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 panty's exclusive right to use a registered trademark may be sealed and taken into custody The panties involved shall assist and cooperate with the administrative authorities for industry and commerce as the latter exercise the powers provided for in the preceding paragraph in accordance with the law and shall not refuse or obstruct questioning or inspection. Article 56 The amount of damages for trademark infringement shall be the profit that the infringer has earned as a result of the infringement during the period of the infringement or the losses that the infringed has suffered as a result of the infringement during the period of the infringement, including any reasonable expenses the infringer has incurred in its effort to ~op the infringement. Where the profits earned by the infringer or losses suffered by the infringed referred to in the preceding paragraph cannot be determined, the People's Court shall award damages up to 500,000 yuan, depending on the facts of the case. 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 57 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 its exclusive right to use its registered trademark and that, unless they are stopped promptly, will cause irreparable injury to its legitimate rights and interests, the trademark registrant or the interested party may, before filing a lawsuit, apply to the People's Count for the granting of an injunction prohibiting the actions and protecting its assets. The People's Court shall apply the provisions in Articles 93 through 96 and in Article 99 of the Civil Procedural Law of the People's Republic of China in handling the application provided for in the preceding paragraph. Article 58 With a view to prohibiting trader nark-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 the People's Court to have evidence preserved. The People's Court shall make a ruling within 48 hours from the acceptance of the application. A ruling to have evidence preserved must be enforced immediately. The People's Court may order the applicant to provide security. Where no security is provided, the People's Count may reject the application. Where the applicant fails to institute legal proceedings within 15 days after the People's Court grants the protective measure, the People's Court shall rescind the protective measure. Article 59 Where a party, without the authorization of a trademark registrant, uses a mark identical with 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 panty shall be prosecuted, according to the law. for its criminal liabilities in addition to being required to compensate the infringed for the damages suffered by the infringed. Any person who forges or makes without authorization representations of a registered trademark of another .person or sells representations of a registered trademark which are forged or made without authorization shall, if the act constitutes a crime, be investigated for criminal responsibility according to law in addition to compensating for the losses suffered by the infringed. Any person who knowingly sells goods bearing counterfeit registered trademarks shall, if the act constitutes a crime, be investigated for criminal responsibility according to law in addition to compensating for the losses suffered by the infringed. CHAPTER VIII Supplementary Provisions 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 61 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 62 Where state personnel engaged in trademark registration, administration, and review are derelict of duty, abuse their official power, 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 personnel involved shall be subject to administrative disciplinary measures. Article 63 Applicants for trademark registration and the handling of other trademark matters shall pay a fee, the specific standards shall be prescribed separately. Article 64 This Law shall go into effect as of March 1, 1983. On that same day, the Regulations on Trademark Administration promulgated by the State Council on April 10,1963 shall simultaneously be repealed, and any other provisions concerning trademark administration that conflict with this Law shall be invalidated. Trademarks registered before this Law goes into effect shall continue to be valid. Endnotes
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