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Trademark
Law of the People's Republic of China |
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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 in China. Article
3. A
registered trademark is a trademark that has been accepted and registered
by the Trademark Office, which may be a trademark used on goods,
a service mark, a collective mark or a certification mark. The owner
of a registered trademark shall have the exclusive right to use
the trademark, which shall be protected by law. Article
4. Any
natural person, legal person or other organization, intending to
acquire the exclusive right to use a trademark for goods produced,
manufactured, processed, selected or marketed by him, shall apply
for registration of the trademark used on goods to the Trademark
Office. Article 5. Two or more natural persons, legal persons or other organizations may jointly apply for registration of a trademark to the Trademark Office, and may jointly enjoy and exercise the exclusive right to use the trademark. Article
6. For
goods that, as required by the State, must bear a registered trademark,
an application for registration of a trademark shall be filed. If
no registration has been made, such goods cannot be offered for
sale in the market. Article 8. Any visually perceptible sign, capable of distinguishing the goods or services of one natural person, legal person or any other organization from those of other persons, including words, devices, letters, numerals, three-dimensional signs, combination of colours as well as the combination of such signs, shall be eligible for application for registration as a trademark. Article
9. A
trademark that is the subject of an application for registration
shall have distinctive character and be capable of being readily
identified and distinguished, and shall not be in conflict with
the legal rights obtained earlier by other persons. Article
10. The
following signs shall not be used as trademarks: Article
11. The
following signs shall not be registered as trademarks: Article
12. Where
a three-dimensional sign is the subject of an application for registration
of a trademark, the trademark shall not be registered if it consists
exclusively of the shape which results from the nature of the goods
themselves, the shape of goods which is necessary to obtain a technical
result, or the shape which gives substantial value to the goods. Article
13. A
trademark shall not be registered and its use shall be prohibited
where the trademark constitutes a reproduction, an imitation, or
a translation, of a well-known trademark of another person not registered
in China and is likely to create confusion, if the trademark is
the subject of an application for registration in respect of goods
which are identical or similar to the goods to which the well-known
trademark applies. Article
14. The
following factors shall be considered in determining a well-known
trademark: Article
15. A
trademark shall not be registered and its use shall be prohibited
if the agent or representative of the person who is the owner of
a trademark applies, without authorization, for the registration
of the trademark in his own name and if the owner raises an opposition. Article
16. A
trademark shall not be registered and its use shall be prohibited
if it consists of or contains a geographical indication in respect
of goods not originating in the region indicated, to such an extent
as to mislead the public; however, registrations made in good faith
shall continue to be valid. Article
17. Any
foreigner or foreign enterprise intending to apply for registration
of a trademark in China shall file an application in accordance
with any agreement concluded between the People's Republic of China
and his country of origin, or according to the international treaty
to which both countries are parties, or on the basis of the principle
of reciprocity. Article
18. Any
foreigner or foreign enterprise intending to apply for registration
of a trademark or for any other matters concerning a trademark in
China shall entrust a qualified trademark agency recognized by the
State to be his representative.
Article
20. Where
any applicant intends to apply for registration of a trademark for
goods in different classes, application for registration shall be
made in accordance with the prescribed classification of goods.
Article 21. A new application for registration shall be made if a registered trademark is to be used in respect of other goods of the same class than those contained in the registration. Article
22. A
new application for registration of a trademark shall be made if
the sign of a registered trademark is to be altered. Article
23. An
application for a change shall be made if the name or address of
the owner of a registered trademark, or other matters contained
in the registration, is to be changed. Article
24. An
applicant for registration of a trademark who, within six months
from the date of application for registration of his trademark in
a foreign country, applies for registration of the same trademark
in China in respect of the same goods has a right of priority in
accordance with any agreement concluded between China and the foreign
country, or with the international treaty to which both countries
are party, or on the principle of mutual recognition of the right
of priority. Article
25. If
a trademark is first used on goods exhibited at an international
exhibition sponsored or recognized by the Chinese government, an
applicant for registration of the trademark has a right of priority
for a period of six months from the date of exhibition of the goods.
Article
27. Where
an application for registration of a trademark is in compliance
with the relevant provisions of this Law, the Trademark Office shall
accept the application and publish the same. Article
28. Where
an application for registration of a trademark is not in compliance
with the relevant provisions of this Law, or if the trademark is
identical with or similar to a trademark of another person that
has been registered or accepted in respect of identical or similar
goods, the Trademark Office shall refuse to accept the application
and shall not publish the same. Article
29. Where
two or more applicants apply for registration of identical or similar
trademarks in respect of identical or similar goods, the application
filed the earliest shall be accepted and published; if the applications
are filed on the same day, the trademark which is used the earliest
shall be accepted and published, and applications of other persons
shall be refused and not be published. Article
30. Any
person may, within three months from the date of publication, file
an opposition against an accepted application for registration of
a trademark. If no opposition is filed within the specified period,
the trademark shall be registered, a certificate of registration
shall be issued, and the registration shall be published. Article
31. An
application for registration of a trademark shall not be of such
a nature as to infringe the existing earlier right of another person.
An application shall not be made with intent to register a trademark
which is used by another person and enjoys certain reputation. Article
32. Where
an application for registration of a trademark is refused and no
publication 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 notification, apply
for review to the Trademark Review and Adjudication Board, which
Board shall make a decision and notify the applicant in writing. Article
33. Where
an opposition is filed against an accepted and published application
for registration of a trademark, the Trademark Office shall hear
both the opponent and the opposed party's statement of facts and
grounds and shall, after investigation and verification, make a
decision. Where any party is dissatisfied, he may, within fifteen
days from receipt of the notification, apply for review to the Trademark
Review and Adjudication Board, which Board shall make a decision
and notify both the opponent and the opposed party in writing.
Article
35. Applications
for registration of trademarks and applications for review shall
be examined in a timely manner. Article
36. If
an applicant for registration of a trademark or a holder of a registered
trademark finds an obvious error in the documents relating to the
application or registration, he may apply for rectification of the
error. The Trademark Office shall, within the scope of its powers
in accordance with law, make the rectification and notify the interested
party.
Article
37. The
period of validity of a registered trademark shall be ten years
starting from the date of registration. Article
38. Where
a holder of a registered trademark intends to continue to use the
trademark after the expiry of the period of validity, an application
for renewal of the registration shall be made within six months
before the said expiry. Where no application is made within the
said period, a grace period of six months may be allowed. If no
application is filed at the expiry of the grace period, the registered
trademark shall be removed from the register. Article
39. Where
a registered trademark is to be assigned, the assignor and assignee
shall sign an agreement of assignment and jointly file an application
with the Trademark Office. The assignee shall guarantee the quality
of the goods in respect of which the registered trademark is used. Article
40. The
owner of a registered trademark may, by signing a trademark license
contract, authorize another person to use his registered trademark.
The licensor shall supervise the quality of the goods in respect
of which the licensee uses his registered trademark. The licensee
shall guarantee the quality of the goods in respect of which the
registered trademark is used.
Article
41. Where
a registered trademark stands in violation of the provisions of
Article 10, 11 or 12 of this Law, or the registration of a trademark
has been acquired by fraud or any other unfair means, the Trademark
Office shall cancel the registered trademark; any other organization
or individual may request the Trademark Review and Adjudication
Board to make an adjudication to cancel such a registered trademark. Article
42. Where,
before registration, a trademark has been the subject of an opposition
that has been decided, no application for adjudication based on
the same facts and grounds may be filed. Article
43. After
the Trademark Review and Adjudication Board makes an adjudication
either to maintain or cancel a registered trademark, it shall notify
the interested parties of the same in writing.
Article
44. The
Trademark Office shall order the user of a registered trademark
to rectify the situation within a specified time limit, or shall
cancel the registered trademark, if the user: Article
45. Where
a registered trademark is used on goods that are roughly or poorly
manufactured, or on goods of bad quality which pass off as those
of good quality, so as to deceive consumers, the administrative
authorities for industry and commerce at different levels shall,
according to the circumstances, order rectification of the situation
within a specified time limit, and may in addition circulate a notice
of criticism or impose a fine, and the Trademark Office may cancel
the registered trademark. Article
46. Where
a registered trademark has been canceled or has not been renewed
upon expiry of the period of validity, the Trademark Office shall,
during one year from the date of cancellation or removal, refuse
to accept any application for registration of a trademark that is
identical with or similar to the trademark. Article 47. 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 time limit, and may in addition impose a fine. Article
48. Where
any person who uses an unregistered trademark has committed any
of the following, the local administrative authority for industry
and commerce shall stop the use of the trademarks, order him to
rectify the situation within a specified time limit, and may in
addition circulate a notice of criticism or impose a fine: Article
49. Any
party dissatisfied with the decision of the Trademark Office to
cancel a registered trademark may, within fifteen days from receipt
of the notification, apply for review to the Trademark Review and
Adjudication Board, which Board shall make a decision and notify
the applicant in writing. Article
50. Any
party dissatisfied with the decision of the administrative authority
for industry and commerce to impose a fine in accordance with the
provisions of Article 45, 47 or 48 may, within fifteen days from
receipt of the notification, institute legal proceedings with the
people's court. If there have been instituted no legal proceedings
or made no performance of the decision upon the expiry of the said
period, the administrative authority for industry and commerce may
request the people's court for compulsory execution.
Article
51. The
exclusive right to use a registered trademark is limited to the
trademark which has been registered and to the goods in respect
of which the registration has been made. Article
52. A
person infringes the exclusive right to use a registered trademark
if he: Article
53. Where
a dispute arises from any of the acts of infringement of the exclusive
right to use a registered trademark provided for in Article 52 of
this Law, the parties involved shall settle the dispute through
consultation. Where any of the parties refuses to pursue consultation
or where consultation fails, the owner of the registered trademark
or an interested party may institute legal proceedings with the
people's court, or request the administrative authority for industry
and commerce for actions. The administrative authority for industry
and commerce may, upon determining the infringement has taken place,
order the infringer to immediately stop the infringing act, confiscate
and destroy the infringing goods and any implements specifically
used to manufacture the infringing goods and counterfeit representations
of the registered trademark, and may impose a fine. Where an party
is dissatisfied with the decision of the administrative authority
for industry and commerce, he may, within fifteen days from receipt
of the notification, institute legal proceedings with the people's
court in accordance with the Administrative Procedural Law of the
People's Republic of China. If there have been instituted no legal
proceedings or made no performance of the decision upon the expiry
of the said period, the administrative authority for industry and
commerce may request the people's court for compulsory execution.
Where a party so requests, the administrative authority for industry
and commerce handling a dispute may mediate in settling the amount
of damages. Where mediation fails, a party may institute legal proceedings
with the people's court in accordance with the Civil Procedural
Law of the People's Republic of China. Article
54. The
administrative authorities for industry and commerce have the power
to investigate and handle by law any act of infringement of the
exclusive right to use a registered trademark. Where a crime is
suspected to have been committed, the case shall be transferred
to the judicial authorities in a timely manner to be dealt with
in accordance with the law. Article
55. The
administrative authorities for industry and commerce at or above
the county level may, based on evidence already obtained indicating
suspected illegal conduct or information supplied by a member of
the public, exercise the following powers in investigating suspected
acts of infringement of the exclusive right of another person to
use a registered trademark: Article
56. The
amount of damages for infringement of the exclusive right to use
a registered trademark shall be the profit that the infringer has
earned through the infringement during the period of the infringement
or the losses that the infringee has suffered through the infringement
during the period of the infringement, including any reasonable
expenses the infringee has incurred in his effort to stop the infringement. Article
57. Where
the owner of a registered trademark or an interested party has evidence
indicating that another person is engaged in or will soon engage
in an act of infringement of the former's exclusive right to use
his registered trademark and that, unless the act is stopped in
a timely manner, irreparable injury will be caused to his legitimate
rights and interests, he may, before instituting legal proceedings,
apply to the people's court for measures prohibiting the act and
preserving the latter's assets. Article
58. To
stop an act of infringement, where evidence may be destroyed or
lost or become difficult to obtain in the future, the owner of a
registered trademark or an interested party may, before instituting
legal proceedings, apply to the people's court to have the evidence
preserved. Article
59. Any
person who, without the consent of the owner of a registered trademark,
uses a trademark that is identical with the registered trademark
in relation to identical goods, if it constitutes a crime, shall
be prosecuted according to law for his criminal liabilities in addition
to compensating the damages that the infringee suffers. Article
60. State
personnel responsible for 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. 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 laws and administrative rules and regulations
and observe discipline.
Article
63. An
application for registration of a trademark or for other matters
concerning a trademark shall be subject to the payment of a fee.
The schedule of fees shall be prescribed separately. Article
64. 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.
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