(Adopted at the 24th Session of the Standing Committee of the Fifth National People’s Congress on 23 August 1982, revised for the first time according to the Decision on the Amendment 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 22 February 1993 and revised for the second time according to the Decision on the Amendment 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 27 October 2001, and revised for the third time according to the Decision on the Amendment 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 30 August 2001.) Translated by CTPLO Team
Contents
Chapter I General Provisions
Chapter II Application for Trademark Registration
Chapter III Examination and Approval of Trademark Applications
Chapter IV Renewal, Modification, Assignment and Licensing of Registered Trademarks
Chapter V Announcement of Invalidation of Registered Trademark
Chapter VI Administration of the Use of Trademarks
Chapter VII Protection of the Exclusive Rights to Use Registered Trademarks
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 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 administrative authority for industry and commerce under the State Council shall be responsible for the registration and administration of trademarks throughout the country.
The Trademark Review and Adjudication Board, established under the administrative authority for industry and commerce under the State Council, shall be responsible for handling matters of trademark disputes.
Article 3 Registered trademarks mean trademarks that have been approved and registered by the Trademark Office, including trademarks, service marks, collective marks and certification marks; the trademark registrants shall enjoy the exclusive right to use the trademarks, and be protected by law.
Said collective marks mean sings which are registered in the name of bodies, associations or other organizations to be used by the members thereof in their commercial activities to indicate their membership of the organizations.
Said certification marks mean signs which are controlled by organizations capable of supervising some goods or services and used by entities or individual persons outside the organization for their goods or services to certify the origin, material, mode of manufacture, quality or other characteristics of the goods or services.
Regulations for the particular matters of registration and administration of collective and certification marks shall be established by the administrative authority for industry and commerce under the State Council.
Article 4 Any natural person, legal entity or other organization intending to acquire the exclusive right to use a trademark for the goods produced or service provided by it or him, shall file an application for the registration of the trademark 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 entities or other organizations may jointly file an application for the registration for the same trademark with the Trademark Office, and jointly enjoy and exercise the exclusive right to use the trademark.
Article 6 As for any of such goods, which prescribed by the Law and Administrative Regulation, must bear a registered trademark, a trademark registration must be applied for. Where no trademark registration has been granted, such goods cannot be marketed.
Article 7 Trademarks which apply for registration and use shall conform to the principle of honesty and credibility.
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 different levels shall, through the administration of trademarks, stop any practice that deceives consumers.
Article 8 In respect of any sign capable of distinguishing the goods or service of one natural person, legal entity or any other organization from that of others, including any word, design, letters of an alphabet, numerals, three-dimensional symbol, combinations of colors, sounds, etc., and their combination, an application may be filed for registration.
Article 9 Any trademark in respect of which an application for registration is filed shall be so distinctive as to be distinguishable, and shall not conflict with any prior right acquired by another person.
A trademark registrant has the right to use the words of “registered trademark” or a symbol to indicate that his trademark is registered.
Article 10 The following signs shall not be used as trademarks:
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, with the names and symbols of Central and State organs, with the names of the places where the Central and State organs are located, or with the names and designs of landmark buildings;
those identical with or similar to the State names, national flags, national emblems or military flags of foreign countries, except that the foreign state government agrees otherwise on the use;
those identical with or similar to the names, flags or emblems or names, etc., of international intergovernmental organizations, except that the organizations agree otherwise on the use or that it is not easy for the use to mislead the public;
those identical with or similar to official signs and hallmarks, showing official control or warranty by them, except that the use thereof is otherwise authorized;
those identical with or simi1ar to the symbols, or names, of the Red Cross or the Red Crescent;
those having the nature of discrimination against any nationality;
those having the nature of fraud, easily misleading the public on the characteristics of the goods, such as quality and production place.
those detrimental to socialist morals or customs, or having other unhealthy influences. The geographical names as the administrative divisions at or above the county level and the foreign geographical names well known to the public shall not be used as trademarks, but such geographical terms as have otherwise meanings or are a part of collective marks/or a certification marks shall be exclusive. Where a trademark using any of the above-mentioned geographical names has been approved and registered, it shall continue to be valid.
Article 11 The following signs shall not be registered as trademarks:
those only comprising generic names, designs or models of the goods in respect of which the trademarks are used;
those having direct reference to the quality, main raw materials, function, use, weight, quantity or other features of the goods in respect of which the trademarks are used; and
others those lacking distinctive features.
The signs under the preceding paragraphs may be registered as trademarks where they have acquired the distinctive features through use and become readily identifiable.
Article 12 Where an application is filed for registration of a three-dimensional sign as a trademark, any shape derived from the goods itself, required for obtaining the technical effect, or giving the goods substantive value, shall not be registered.
Article 13 Those trademarks well known by the relevant public, when the owner thinks his right is infringed, in accordance with this Law, he can apply for the protection of well-known trademark.
Where a trademark in respect of which the application for registration is filed for use for identical or similar goods is a reproduction, imitation or translation of another person’s trademark not registered in China and likely to cause confusion; it shall be rejected for registration and prohibited from use.
Where a trademark in respect of which the application for registration is filed for use for non-identical or dissimilar goods is a reproduction, imitation or translation of the well-known mark of another person that has been registered in China, misleads the pub1ic and is likely to create prejudice to the interests of the well-known mark registrant, it shall be rejected for registration and prohibited from use.
Article 14 According to the parties’ request, the well-known marks shall be managed as the fact which refers to trademark case and needs to be confirmed. Account shall be taken of the following factors in establishment of a well-known mark:
reputation of the mark to the relevant public;
time for continued use of the mark;
consecutive time, extent and geographical area of advertisement of the mark;
records of protection of the mark as a well-known mark; and
any other factors relevant to the reputation of the mark.
In the process of examination of trademark application and investigation of trademark illegal handled by the Industrial and Commercial Administrative Departments, with the parties claiming their right in accordance with the Article 13 of this Law, according to the need of examination and case settlement, the Trademark Office shall make a confirmation for the well-known mark.
In the process of dealing with trademark dispute, with the parties claiming their right in accordance with the Article 13 of this Law, according to the need of examination and case settlement, the Trademark Trial and Appeal Board shall make a confirmation for the well-known mark.
In the process of handling civil cases and administrative cases, with the parties claiming their right in accordance with the Article 13 of this Law, according to the need of examination and case settlement, the Peoples’ Court designated by Supreme Peoples’ Court can make a confirmation for the well-known mark.
The producer or operator must not mark “well-known mark” on the goods, the goods packing or their containers, or use it for advertising, exhibition or any other commercial activities.
Article 15 Where any agent or representative registers, in its or his own name, the trademark of a person for whom it or he acts as the agent or representative without authorization therefrom, and the latter raises opposition, the trademark shall be rejected for registration and prohibited from use.
Where Trademark applied for identical goods or similar goods, identical with or similar to the other people’s practical used but unregistered trademark, and the applicant has contract, business contact or any other relationship out of preceding clause with the other people and know the exits of the other people’s trademark, the opposition is raised by the other people, the trademark shall be rejected for registration.
Article 16 Where a trademark contains a geographic indication of the goods in respect of which the trademark is used, the goods is not from the region indicated therein and it misleads the public, it shall be rejected for registration and prohibited from use; however, any trademark that has been registered in good faith shall remain valid.
The geographic indications mentioned in the preceding paragraph refer to the signs that signify the place of origin of the goods in respect of which the signs are used, their specific quality, reputation or other features as mainly decided by the natural or cultural factors of the regions.
Article 17 Any foreign person or foreign enterprise intending to apply 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 the country to which the applicant belongs, or according to the international treaty to which both countries are parties, or on the basis of the principles of reciprocity.
Article 18 trademark registration or any other trademark affairs can be applied by the self or appointed to any trademark agencies which are established legally.
Any foreign person or foreign enterprise intending to apply for the registration of a trademark or for any other matters concerning a trademark in China shall appoint any trademark agencies which are established legally.
Article 19 Trademark agencies shall follow the principle of honesty and credibility, laws and administrative regulations, apply for trademark registration and any other trademark affairs according to the principal’s authorization; when knowing the business secret of the principal during the agency, the trademark agencies have the obligation of maintaining confidentiality.
The trademark registration application of the client may be refused according to the forbidden rules of registration of this law, so trademark agencies shall notice the clients clearly.
Where the trademark agency knows or shall know the trademark that the client applies is consistent with the Article 15 and Article 32 of this Law, it must not accept the entrustment.
Except for the trademarks entrusted, trademark agencies must not apply for any other trademark registration.
Article 20 Trademark agent organizations shall follow the stipulations in the regulations, strictly enforce the conditions of member acquisition; punish the members who violate industry self-regulation. The acquisition and members’ punishment of trademark agent organizations shall be announced to the public.
Article 21 International registration of trademark shall follow the regulations established in the relevant international agreement which the People’s Republic of China concludes or attends. The State Council stipulates concrete measure.
Chapter II Application for Trademark Registration
Article 22 Any applicant for registration of a trademark shall, in a form, indicate, in accordance with the prescribed classification of goods, the class of the goods and the designation of the goods in respect of which the trademark is to be used, raising a registration application.
Any applicant for registration of a trademark can apply various classes for one trademark in one application.
The trademark registration applications and other relevant documents can be sent by written paper or data message.
Article 23 Where a registered trademark is to gain the exclusive right to use trademark on the goods out of the range of application, a new application for registration shall be filed.
Article 24 Where the sign of a registered trademark is to be altered, a new registration shall be applied for.
Article 25 Any applicant for the registration of a trademark who files an application for registration of the same trademark for identica1 goods in China within six months from the date of filing the first application for the trademark registration overseas may enjoy the right of priority in accordance with any agreement concluded between the People’s Republic of China and the 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 whereby each acknowledges the right of priority of the other.
Anyone claiming the right of priority according to the preceding paragraph shall make a statement in writing when it or he files the application for the trademark registration, and submit, within three months, a copy of the application documents it or he first filed for the registration of the trademark; where the applicant fails to make the claim in writing or submit the copy of the application documents within the time limit, the claim shall be deemed not to have been made for the right of priority.
Article 26 Where a trademark is first used for goods in an international exhibition on sponsored or recognized by me Chinese Government, the applicant for the registration of the trademark may enjoy the right of priority within six months from the date of exhibition of the goods.
Anyone claiming the right of priority according to the preceding paragraph shall make a claim in writing when it or he files the application for the registration of the trademark, and submit, within three months, documents showing the title of the exhibition in which its or his goods was displayed, proof that the trademark was used for the goods exhibited, and the date of exhibition; where the claim is not made in writing, or the proof documents not submitted within the time limit, the claim shall be deemed not to have been made for the right of priority.
Article 27 The matters reported and materials submitted in the application for trademark registration shall be true, accurate and complete.
Chapter III Examination and Approval of Trademark Applications
Article 28 where a trademark registration is applied, the Trademark Office shall, within nine months from receipt of trademark registration application, complete the examination and publish it on the preliminary Gazette if it is in accordance with his Law.
Article 29 In the process of examination, where the Trademark Office considers the content of trademark registration application shall be explained or amended, it can demand applicant to explain or amend. Whether the applicant makes explanation/amends or not never affect the Trademark Office to make a decision in the examination.
Article 30 Where a trademark the registration of which has been applied for is not in conformity with the relevant provisions of this Law, or it is identical with or similar to the trademark of another person that has, in respect of the same or similar goods, been registered or, after examination, preliminarily approved, the Trademark Office shall refuse the application and shall not publish the said trademark.
Article 31 Where two or more applicants apply for the registration of identical or similar trademarks for the same or similar goods, the preliminary approval, after examination, and the publication shall be made for the trademark which was first filed. Where applications are filed on the same day, the preliminary approval, after examination, and the publication shall be made for the trademark which was the earliest used, and the applications of the others shall be refused and their trademarks shall not be published.
Article 32 An application for the registration of a trademark shall not create any prejudice to the prior right of another person, nor unfair means be used to preemptively register the trademark of some reputation another person has used.
Article 33 The prior owner of trademark or interested parties, within three months from the date of the publication, shall file an opposition against the trademark that has, after examination, been preliminarily approved but violate the paragraph 3 and 4 of Article 13, paragraph 1 of Article 15 and Article 16, Article 30, Article31 and Article 32. If no opposition has been filed after the expiration of the time limit from the publication, the registration shall be approved, a certificate of trademark registration shall be issued and the trademark shall be published.
Article 34 Where the application for registration of a trademark is refused and no publication of the trademark is made, the Trademark Office shall notify the applicant of the same in writing. Where the applicant is dissatisfied, he may, within fifteen days from receipt of the notice, file an application with the Trademark Review and Adjudication Board for a review. The Trademark Review and Adjudication Board shall make a decision and notify the applicant in writing , within nine months after receipt of the application. Where 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.
Any interested party who is not satisfied with the decision made by the Trademark Review and Adjudication Board may, within thirty days from receipt of the notice, institute legal proceedings in the People’s Court.
Article 35 Where an opposition is filed against the trademark that has, after examination, been preliminarily approved and published, the Trademark Office shall hear both the opponent and applicant state facts and grounds, and shall make a decision after investigation and verification within twelve months from the date of expiration of the time limit from the publication, and notify ‘the applicant in writing.Where extension is needed, upon approval of the Department of Industry and Commerce Administration under the State Council, the time limit can be extended for six months.
Where the Trademark Office makes a decision of registration approval, a certificate of trademark registration shall be issued and the trademark shall be published. Where the opposer is not satisfied with the decision, according to Article 44 and Article 45 of this Law, he can apply to the Trademark Review and Adjudication Board for announcing the invalidation of the registered trademark
Where the Trademark Office makes a decision of registration refusal, but the opposee is dissatisfied, it or he may within fifteen days from receipt of the notification, apply for a reexamination. The Trademark Review and Adjudication Board shall make a decision, within twelve months from receipt of the reexamination application, and notify both the opponent and applicant in writing. Where extension is needed, upon approval of the Department of Industry and Commerce Administration under the State Council, the time limit can be extended for six months. If the opposee is not satisfied with the decision made by the Trademark Review and Adjudication Board within thirty days from the date of receipt of the notice, he may institute legal proceedings in the People’s Court. The People’s Court shall notify the other party to the trademark reexamination proceeding to be a third party to the litigation.
Where the confirmation of the prior right in the reexamination that has to be justified by the result of another case that the People’s Court or Administrative Organ is handling, the Trademark Review and Adjudication Board may stop examination, and shall resume the examination after the reason of stop is eliminated.
Article 36 Where the legal time limit expires, the parties do not file for review for application rejection or registration refusal, or not institute legal proceedings in the People’s Court for the reexamination decision that made by Trademark Review and Adjudication, the registration refusal or reexamination decision goes into effect.
Where the opposition cannot be established upon examination, but the registration is approved, the time of the exclusive right the trademark registration applicant has obtained to use the trademark is counted from the date on which the three months expires from the publication of the preliminary examination. From the expiration date of publication to the days before registration is approved, any other people who use identical or similar trademark on identical or similar goods is not retroactive; but the loss of trademark registrant caused by the user’s malevolence shall be compensated.
Article 37 Any application for trademark registration and trademark reexamination shall be examined in due course.
Article 38 Where any trademark registration applicant or registrant finds any obvious errors in the trademark registration documents or application documents, it or he may apply for correction thereof The Trademark Office shall ex officio make the correction according to law and notify the interested party of the correction.
The error correction mentioned in the preceding paragraph shall not relate to the substance of the trademark registration documents or application documents.
Chapter IV Renewal, Assignment and Licensing of Registered Trademarks
Article 39 The period of validity of a registered trademark shall be ten years, counted from the date of approval of the registration.
Article 40 Where the registrant intends to continue to use the registered trademark beyond the expiration of the period of validity, an application for renewal of the registration shall be made within twelve months before the said expiration. Where no application therefore has been filed within the said period, a grace period of six months may be allowed. If no application has been filed at the expiration the grace period, the registered trademark shall be cancelled.
The period of validity of each renewal of registration shall be ten years.
Any renewal of registration shall be published after it has been approved.
Article 41 Where the registrant intends to modify the owners’s name , the address or other information of a registered trademark, an application for modification shall be made.
Article 42 Where a registered trademark is assigned, the assignor and assignee shall conclude a contract for the assignment, and jointly file an application with the trademark Office. The assignee shall guarantee the quality of the goods in respect of which the registered trademark is used.
Where a registered trademark is assigned, the assignor shall assign the similar trademark on the certain goods item, or the similar/ identical trademark on similar goods items.
Any assignment that will easily cause confusion or any other undesirable effects will not be approved by Trademark Office, and the notice of refusal will be delivered to the applicant in writing.
The assignment of a registered trademark shall be published after it has been approved, and the assignee enjoys the exclusive right to use the trademark from the date of publication.
Article 43 Any trademark registrant may, by signing a trademark license contract, authorize other persons to use his registered trademark. The licensor shall supervise the quality of the goods in respect of which the licensee uses his registered trademark, and the licensee shall guarantee the quality of the goods in respect of which the registered Trademark is used.
Where any party is authorized to use a registered trademark of another person, the name of the licensee and the origin of the goods must be indicated on the goods that bear the registered trademark.
The trademark license contract shall be submitted to the Trademark Office for record and publication. A trademark license contract without recordation with the Trademark Office cannot be used against any third parties.
Chapter V Announcement of Invalidation of Registered Trademark
Article 44 Where a registered trademark stands in violation of the provisions of Articles 10, 11 and 12 of this Law, or the registration of a trademark was acquired by fraud or any other unfair means, the Trademark Office shall cancel the registered trademark in question; and any other organization or individual may request the Trademark Review and Adjudication Board to make an adjudication to cancel such a registered trademark.
The decision of trademark invalidation that made by Trademark Office shall be delivered to the interested party in writing. Where the interested party is unsatisfied with decision, an application for review can be submit to the Trademark Review and Adjudication Board within fifteen days since the notice for invalidation is received. The Trademark Review and Adjudication Board shall make the adjudication within nine months after receiving the application and deliver the notice to the interested party in writing. Where extension is needed, upon approval of the State Administration for Industry & Commerce, the time limit can be extended for three months. If the interested party is not satisfied with the decision made by the Trademark Review and Adjudication Board within thirty days from the date of receipt of the notice, he may institute legal proceedings in the People’s Court.
Where any other organization or individual request the Trademark Review and Adjudication Board to make an adjudication to invalidate a registered trademark, the Trademark Review and Adjudication Board shall notify the interested parties in writing and request them to respond with arguments within a specified period. The Board shall make the adjudication of maintaining the registered trademark or invalidating the registered trademark within nine months after receipt of the application, and notice to the interested parties in writing. Where extension is needed, upon approval of the State Administration for Industry & Commerce, the time limit can be extended for three months. Any interested parties refuse to obey the adjudication of The Board; a suit may be brought in the People’s Court within thirty days after receipt of the notice. The People’s Court shall notify the other party of the trademark adjudication proceeding to be a third party to the legal proceedings.
Article 45 Where a registered trademark stands in violation of the provisions of Articles 13, 15, 16, 31 and 32 of this Law, any other trademark owner concerned or interested party may, within five years from the date of the registration of the trademark, file a request with the Trademark Review and Adjudication Board for adjudication to cancel the registered trademark. Where a well-known mark is registered in bad faith, the genuine owner thereof shall not be restricted by the five-year limitation.
The Trademark Review and Adjudication Board shall notify the interested parties in writing and request them to respond with arguments within a specified period after receipt of the application for invalidating the registered trademark. The Trademark Review and Adjudication Board shall make the adjudication of maintaining the registered trademark or invalidating the registered trademark within twelve months after receipt of the application, and notify the interested parties in writing. Where extension is needed, upon approval of the State Administration for Industry & Commerce, the time limit can be extended for six months. Any interested parties refuse to obey the adjudication of The Board; a suit may be brought in a people’s court within thirty days after receipt of the notice. The People’s Court shall notify the other party of the trademark adjudication proceeding to be a third party to the legal proceedings.
Where the confirmation of the prior right in the examination that has to be justified by the result of another case that the People’s Court or Administrative Organ is handling, the Trademark Review and Adjudication Board may stop examination, and shall resume the examination after the reason of stop is eliminated.
Article 46 In legal expiration of time limit, where the interested parties do not request trademark review for trademark invalidation , or do not bring a suit for the decision of review or the adjudication of either maintaining or invalidating the trademark that made by Trademark Review and Adjudication Board, those decision or adjudication will effect.
Article 47 The registered trademark that adjudicated to be invalidated according to the provisions of Articles 44, and 45of this Law, will announced by Trademark Office, and its exclusive rights are regarded as non- existed after the announcement.
The decision or adjudication of canceling a registered trademark has no retroactive effects on the judgment, adjudication or conciliation of a trademark infringement case that already made or executed by the People’s Court, and the trademark assignation or trademark license contract that has already made or executed according to the State Administration for Industry & Commerce’s decision on a trademark infringement case. Nevertheless, the losses of other person, which caused by the applicant’s malicious intention shall be compensated.
The previous stipulations of non-return compensation for trademark infringement, the fees for assignation and license contract obviously violate the principle of justice. The compensation or fees shall be fully or partial returned.
Chapter VI Administration of the Use of Trademarks
Article 48 The administration of the use of trademarks hereby means to print the trademark on products, products packing or trading documents, or to use the trademark in advertising, exhibition, or other commercial activities for distinguishing the goods resources.
Article 49 Where any person who uses a registered trademark has unilaterally altered the registered trademark, the name, address or other registered matters, the Trademark Office shall order him to rectify the situation within a specified period or even cancel the registered trademark.
Where a registered trademark refers to the Generic Name of its approved goods or doesn’t used for three consecutive years without popper reasons, any person or entities may apply to the Trademark Office for canceling that registered trademark. The Trademark office shall make the decision within nine months after receiving the application. Where the period of handling needs to be extended due to special situations, with the approval of the State Administration for Industry & Commerce, six extra months may be extended.
Article 50 Where a registered trademark is canceled, announced to be invalid or not renewed, the Trademark Office will not approve the filed trademark that identical with or similar to that registered trademark to be registered within one year from the date of cancellation or announcement of invalidation.
Article 51 Where any person violates the provisions of Article 6 of this Law, the local administrative authority for industry and commerce shall order him to file an application for the registration within a specified period. Where the illegal business revenue is above fifty thousand, the user can be imposed a fine of below twenty percent of the illegal business revenue; where no illegal business revenue or the illegal business revenue is less than fifty thousand, the user can be imposed a fine of below ten thousand.
Article 52 where the trademark is falsely represented as registered or a registered trademark violates any provision of Article 10 of this Law, the local administrative authority for industry and commerce shall stop the use of the trademark, order him to rectify the situation within a specified period, and may, in addition, circulate a notice of criticism. Where the illegal business revenue is above fifty thousand, the user can be imposed a fine of below twenty percent of the illegal business revenue; where no illegal business revenue or the illegal business revenue is less than fifty thousand, the user can be imposed a fine of below ten thousand.
Article 53 Where any person violates the provisions of Paragraph 5 of Article 14 of this Law, the local administrative authority for industry and commerce shall order him to correct, and in addition, impose a fine of 100 thousand.
Article 54 Any parties dissatisfied with the decision of the Trademark Office to cancel or not to cancel a registered trademark may, within fifteen days from receipt of the corresponding notice, apply for a review. The Trademark Review and Adjudication Board shall make a decision within nine months after the receipt of the application, and notify the applicant in writing. Where the period of review needs to be extended due to special situations may extend for three extra months with the approval of the State Administration for Industry & Commerce. Any interested parties refuse to obey the adjudication of The Trademark Review and Adjudication Board, shall bring a suit in a people’s court within thirty days after receipt of the notice. The People’s Court shall notify the other party of the trademark adjudication proceeding to be a third party to the legal proceedings.
Article 55 In legal expiration, where the interested parties do not request trademark review for trademark cancellation, or do not bring a suit for the decision of review or the adjudication of either maintaining or cancellation the trademark that made by Trademark Review and Adjudication Board, those decision or adjudication effects.
The registered trademark that adjudicated to be canceled will announced by Trademark Office, and its exclusive rights are regarded as non- existed after the announcement.
Chapter VII Protection of the Exclusive Rights to Use Registered Trademarks
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 respect of which the use of the trademark has been approved.
Article 57 Any of the following acts shall be an infringement of the exclusive right to use a registered trademark:
to use a trademark that is identical with or similar to a registered trademark in respect of the identical goods without the authorization from the trademark registrant;
to use a trademark that is similar to a registered trademark in respect of the identical or similar goods, or without the authorization from the trademark registrant;
to sell goods that he knows bear a counterfeited registered trademark;
to counterfeit, or to make, without authorization, representations of a registered trademark of another person, or to sell such representations of a registered trademark as were counterfeited, or made without authorization;
to replace, without the consent of the trademark registrant, its or his registered trademark and market again the goods bearing the replaced trademark;
to provide convenience on purpose for others' s infringement behavior, or to help others making the acts of infringement.
to cause, in other respects, prejudice to the exclusive right of another person to use a registered trademark.
Article 58 Where to use the other's registered trademark, unregistered well-known trademark as a part of corporation's name, if misleads the public and causes unfair competition, shall be disposed according to the Anti-unfair competition law of the People's Republic of China.
Article 59 The owner of a registered trademark has no rights to forbid other person to use the generic names, devices, models of goods, or the expressions that describe the quality, material, function, application, weight, quantity, geographical name and other features of goods.
The owner of a registered trademark has no rights to forbid other person to use his shape design of forming the property of the goods, the necessary shape design for achieving technical effects, or the shape design of forming the substantial values of the goods in a Three-dimensional mark.
Before applicant files a registration, where other person has used an influential trademark that identical with or similar to the applicant’s trademark, the applicant has no right to forbid the one to use his trademark original usable range, but to require adding certain signs for distinguishing.
Article 60 Where any party has committed any of such acts to infringe the exclusive right to use a registered trademark as provided for in Article 57 of this Law and has caused a dispute, the interested parties shall resolve the dispute through consultation; where they are reluctant to resolve the matter through consultation or the consultation fails, the trademark registrant or interested party may institute legal proceedings in the People’s Court or request the administrative authority for industry and commerce for actions.
Where it is established that the infringing act is constituted in handling the matter, the administrative authority for industry and commerce handling the matter shall order the infringer to immediately stop the infringing act, confiscate and destroy the infringing goods and tools specially used for the manufacture of the infringing goods and for counterfeiting the representations of the registered trademark, and impose a fine. Where the illegal profits are over 50,000RMB, the fine shall be the five times as the profits; where there are no illegal profits, or the illegal profits are below 50,000RMB, the fine shall be within 250,000RMB. Where the infringing acts happened twice in five years, or the infringing acts with serious situations, the heavier punishment shall be gave. Anyone who sells the goods that it or he does not know that it or he has infringed the exclusive right to use a registered trademark, and is able to prove that it or he has obtained the goods legitimately and indicates the supplier thereof shall be ordered to stop the infringing selling by the industry and commerce authority.
Article 61 The administrative authority for industry and commerce has the power to investigate and handle any act of infringement of the exclusive right to use a registered trademark according to law; where the case is so serious as to constitute a crime, it shall be transferred to the judicial authority for handling.
Article 62 When investigating and handling an act suspected of infringement of a registered trademark, the administrative authority for industry and commerce at or above the county level may, according to the obtained evidence of the suspected violation of law or informed offence, exercise the following functions and authorities:
to inquire of the interested parties involved, and to investigate the relevant events of the infringement of the exclusive right to use the trademark;
to read and make copy of the contract, receipts, account books and other relevant materials of the interested parties relating to the infringement;
to inspect the site where the interested party committed the alleged infringement of the exclusive right to use the trademark; and
to inspect any articles relevant to the infringement; any articles that prove to have been used for the infringement of another person’s exclusive right to use the trademark may be sealed up or seized.
When the administrative authority for industry and commerce exercises the preceding functions and authorities, the interested party shall cooperate and help, and shall not refuse to do so or stand in the way.
In the investigation of a trademark infringement case, where the ownership of the trademark is disputed, or the obligee institute legal proceedings in the People’s Court, the administrative authority for industry and commerce can pause the investigation process of the case and shall resume the process after the above reason is removed.
Article 63 The amount of damages shall be determined by the infringee's actual loss. Where the actual loss is unable to determine, it shall be determined by the profit that the infringer has earned because of the infringement; Where the profit is unable to determine, it shall determined by the reasonable times of the fee of licensee uses of the trademark. For circumstances of malicious infringement, the amount of damages shall be determined as the one time (at least) or three times (top) of the amount that set above. The compensation shall include the appropriate expenses of the infringee for stopping the infringement.
The People's Court may order infringer to provide account books or files that related with the infringement for determining the amount of damages, in the condition that the infringee has tried his best to proof, while the relevant account books or files are held by the infringer. Where the infringer doesn’t provide or provide fake account books or files, the People’s Court may determine the amount of damages by referencing the infringee’ s claim and proofs.
Where it is difficult to determine the profit that the infringer has earned by the infringement in the period of the infringement, the injury that the infringee has suffered from the infringement in the period of the infringement or the fee of licensee uses, the People’s Court shall impose an amount of damages of no more than 3,000, 000 RMB according to the circumstances of the infringement.
Article 64 Where the infringee require for compensation and the accused infringer makes a defense with the reason of non-use, the People’s Court may require the infringee to provide proofs of commercial use for three consecutive years for the trademark. Where the infringee is unable to provide the proofs and unable to prove the losses that causes by infringement, the accused infringer thereof shall not bear the liability for damages.
Anyone who sells the goods that it or he does not know has infringed the exclusive right to use a registered trademark, and is able to prove that it or he has obtained the goods legitimately and indicates the supplier thereof shall not bear the liability for damages.
Article 65 Where a trademark registrant or interested party who has evidence to show that another person is committing or will commit an infringement of the right to use its or his registered trademark, and that failure to promptly stop the infringement will cause irreparable damages to its or his legitimate rights and interests, it or he may file an application with the People’s Court to order cessation of the relevant act and to take measures for property preservation before instituting legal proceedings in the People’s Court.
Article 66 In order to stop an infringing act, any trademark registrant or interested party may file an application with the People’s Court for preservation of the evidence before instituting legal proceedings in the People's Court where the evidence will possibly be destroyed or lost or difficult to be obtained again in the future.
Article 67 Where any party uses, without the authorization from the trademark registrant, a trademark identical with a registered trademark, and the case is so serious as to constitute a crime, he shall be prosecuted, according to law, for his criminal liabilities in addition to his compensation for the damages suffered by the infringee.
Where any party counterfeits, or makes, without authorization, representations of a registered trademark of another person, or sells such representations of a registered trademark as were counterfeited, or made without authorization, and the case is so serious as to constitute a crime, he shall be prosecuted, according to law, for his criminal liabilities in addition to his compensation for the damages suffered by the infringee.
Where any party sells goods that he knows bear a counterfeited registered trademark, and the case is so serious as to constitute a crime, he shall be prosecuted, according to law, for his criminal liabilities in addition to his compensation for the damages suffered by the infringee.
Article 68 The trademark agencies with one of the following conditions will be required to make corrections within a time limit, warned or fined between ten thousand yuan and one hundred yuan by the administrative authority for industry and commerce; the direct executive person and other responsible person will also be warned or fined between five thousand yuan and ten thousand yuan; and the case is so serious as to constitute a crime, he shall be prosecuted, according to law, for his criminal liabilities:
to counterfeit or alter the legal document, seal and signature or to use the counterfeited or altered legal document, seal and signature in transacting trademark relevant matters;
to use attract trademark agency business by slandering other trademark agencies, or to disorder the market order of trademark agency by improper means; or
to violate Article 19 of this law.
The trademark agency that has the one of the above behaviors will be filed in credit file by the administrative authority for industry and commerce; as for serious circumstance, the Trademark Office and the Trademark Review and Adjudication Board may stop its trademark agency business, and make the announcement.
Article 69 The State functionaries for the registration, administration and reexamination of trademarks must handle cases according to law, are incorruptible and disciplined, devoted to their duties and courteous and honest in their provision of service.
The State functionaries of the Trademark Office and the Trademark Review and Adjudication Board and those working for the registration, administration and reexamination of trademarks shall not practice as trademark agent and engage in any activity to manufacture and market goods.
Article 70 The administrative authority for industry and commerce shall establish and amplify its internal supervision system to supervise and inspect the State functionaries for the registration, administration and reexamination of trademarks in their implementation of the laws and administrative regulations and in their observation of the discipline.
Article 71 Where any State functionary for the registration, administration and reexamination of trademarks neglects his duty, abuses his power, engages in malpractice for personal gain, handles the registration, administration and reexamination of trademarks in violation of law, accepts money or material wealth from any interested party or seeks illicit interest, which constitutes a crime, he or she shall be prosecuted for his or her criminal liabi1ity. If the case is not serious enough to constitute a crime, he or she shall be given disciplinary sanction according to law.
Chapter VIII Supplementary Provisions
Article 72 Any application for a trademark registration and for other matters concerning a trademark shall be subject to payment of the fees as prescribed. The schedule of fees shall be prescribed separately.
Article 73 This Law shall enter into force on March 1, 1983. The Regulations Governing Trademarks promulgated by the State Council on April 10, 1963 shall be abrogated on the same date, and any other provisions concerning trademarks contrary to this Law shall cease to be effective at the same time.
Trademarks registered before this Law enters into force shall continue to be valid.