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Trademark Law of the People's Republic of China (2013)

( Adopted at the 24th Session of the Standing Committee of the Fifth National People 's
Congress on August 23, 1982; amended for the first time according to the "Decision on the
Revision of the ‘Trademark Law of the People's Republic of China’" adopted at the 30th
Session of the Standing Committee of the Seventh National People's Congress on
February 22, 1993; amended for the second time according to the "Decision on the Revision of the
‘Trademark Law of the People's Republic of China’" adopted at the 24th Session of the Standing Committee of the Ninth National People's' Congress on October 27 2001; amended for
the third time according to the "Decision on the Revision of the
‘Trademark Law of the People's Republic of China’" adopted at the 4th Session of the
Standing Committee of the twelfth National People's' Congress on August 30 2013 )

Protection of the Exclusive Right to Use a Registered Trademark

Article 56.  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 57.  A person infringes the exclusive right to use a registered trademark if he:

  (1) uses a trademark that is identical with a registered trademark in relation to identical goods without the consent of the owner of the registered trademark;
  (2) uses a trademark that is similar to a registered trademark in relation to identical goods, or uses a trademark that is identical with or similar to a registered trademark in relation to similar goods, without the consent of the owner of the registered trademark, and liable to create confusion.
  (3) offers for sale goods that are in infringement of the exclusive right to use a registered trademark;
  (4) counterfeits, or makes without authorization, representations of a registered trademark of another person, or offers for sale such representations;
  (5) changes a registered trademark and put goods bearing the changed trademark on market without consent of the owner of the registered trademark;
  (6) intentionally provides facilities to a person who infringes the exclusive right to use a registered trademark so as to help the person to execute an infringement on the exclusive right to use the registered trademark; or
  (7) causes, in other respects, prejudice to the exclusive right of another person to use a registered trademark.

Article 58.  Any act of using a registered trademark or a non-registered well-known trademark of another person as the trade name of an enterprise name shall constitute an act of unfair competition and shall be dealt with in accordance with the Anti-unfair Competition Law of the People’s Republic of China.

Article 59.  Where a registered trademark contains the generic name, design or model of the goods in question, or directly shows the quality, main raw materials, functions, intended purposes, weight, quantity or other characteristics of the goods in question, or contains geographical names, the proprietor of the exclusive right to use the registered trademark shall have no right to prohibit the fair use thereof by another person.

Where a registered trademark of a three-dimensional sign consists 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, the proprietor of the exclusive right to use the registered trademark shall have no right to prohibit the fair use thereof by another person.

Where, before a trademark registrant applies for the registration of a trademark, another person has used a trademark that is identical with or similar to the registered trademark in respect of identical or similar goods and has a certain influence, the proprietor of the exclusive right to use the registered trademark shall have no right to prohibit the person to continue to use the said trademark within the original scope. However, the proprietor of the exclusive right to use the registered trademark may require the other person to add a proper distinguishable sign on his goods.

Article 60.  Where a dispute arises from any of the acts of infringement of the exclusive right to use a registered trademark provided for in Article 57 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. Where the volume of the illegal business is more than RMB50,000 yuan, a fine of less than five times of the volume of illegal business may be imposed. Where there is no volume of illegal business or the volume of illegal business is less than RMB50,000 yuan, a fine of less than RMB250,000 yuan may be impose. Any person who commits trademark infringement acts more than two times within five years or has other serious circumstances shall be given heavier punishment. Where any person unknowingly sells goods that have infringed the exclusive right to use a registered trademark and can prove that he obtains the good from a legitimate channel and can indicate the suppliers of the goods, the administrative authority for industry and commerce shall order him to stop selling the infringed goods.

The parties concerned may request the administrative authority for industry and commerce handling the infringement dispute to mediate in settling the amount of damage for the infringement of the exclusive right to use a registered trademark, and may institute legal proceedings with the people's court in accordance with the Civil Procedural Law of the People's Republic of China. Where, after the mediation of the administrative authority for industry and commerce, the parties concerned fail to reach an agreement or there is no performance after the mediation decision becomes effective, any 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 61.  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 62.  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:

  (1) to inquire of an interested party about the case; to investigate into the circumstances relating to the infringement of the exclusive right of another person to use a registered trademark;

  (2) to examine or reproduce an interested party's contracts, invoices and account books and other materials relating to the infringement;

  (3) to conduct an on-site inspection of the premises where an interested party has carried out a suspected act of infringement of the exclusive right of another person to use a registered trademark; or

  (4) to examine the articles relating to the act of infringement, and may seal or seize the articles if there is evidence proving that the articles are in infringement of the exclusive right of another person to use a registered trademark.

When the administrative authorities for industry and commerce exercises the powers as provided for in the preceding paragraph, the interested parties shall give assistance and cooperate, and must not refuse or obstruct to do so.

Where, in the procedure of investing and prosecuting a trademark infringement, there is a dispute over the ownership of a trademark or the owner of the trademark institutes a legal proceedings again a trademark infringement with the People’s court simultaneously, the administrative authority for industry and commerce may suspend the investigation and prosecution procedure. After the causes for suspension is eliminated, the procedures of investigation and prosecution shall be resumed or terminated.

Article 63.  The amount of damage for infringement of the exclusive right to use a registered trademark shall be assessed on the basis of the actual losses suffered by the right holder because of the infringement; where it is difficult to determine the actual losses, the amount may be assessed on the basis of the profits the infringer has earned because of the infringement. Where it is difficult to determine the losses the right holder has suffered or the profits the infringer has earned, the amount may be assessed by reference to the appropriate multiple of the amount of using the registered trademark under a contractual license. Where the infringement of the exclusive right to use a registered trademark is committed in bad faith and the circumstance is serious, the amount of damage shall be more than one time but less than three times of the amount assessed by referring to the above calculation. The amount of the damage shall also include the reasonable expenses of the right holder incurred for stopping the infringing act.

When the right holder has tried his best to provide the evidence, but account books and materials relating to the infringement act are mainly under the control of the infringer, to determine the amount of damage, the People’s court may order the infringer to provide the account books, materials relating to the infringement act. Where the infringer refuses to provide or provides false account books and materials, the People’s court may determine the amount of damage by reference to the claim and evidences provided by the right holder.

Where it is difficult to determine the losses suffered by the right holder, the profits the infringer has earned and the fees of licensing a registered trademark, the people's court shall grant a compensation not exceeding RMB 3,000,000 yuan, according to the circumstances of the act of infringement.

Article 64.  When the proprietor to exclusively use a registered trademark requests a compensation, but the accused infringer makes a defense on the grounds that the proprietor to exclusively use a registered trademark fails to use the registered trademark, the People’s court may require the proprietor to exclusively use the registered trademark to provide the evidences that he has actually used the registered trademark for three years before the legal proceedings is initiated. Where the proprietor fails to prove his actual use of the registered trademark in the previous three years and fails to prove that he has suffered other losses from the infringement act, the accused infringer shall not be held liable for damages.

Where a party unknowingly offers for sale goods that are in infringement of the exclusive right of another person to use a registered trademark, but is able to prove that he has obtained the goods lawfully and to identify the supplier, he shall not be held liable for damages.

Article 65.  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 in accordance with relevant laws.

Article 66.  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 in accordance with relevant laws.

Article 67.  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.

Any person who counterfeits, or makes without authorization, representations of a registered trademark of another person, or offers for sale such representations, if it constitutes a crime, shall be prosecuted according to law for his criminal liabilities.

Any person who knowingly sells goods that bear a counterfeited registered trademark, if it constitutes a crime, shall be prosecuted according to law for his criminal liabilities in addition to compensating the damages the infringee suffers.

Article 68.  Where a trademark agency commits any of the following acts, the administrative authority for industry and commerce shall order it to rectify within specified time limit, give a warning, or impose of a fine of more than RMB10,000 yuan but less than 100,000 yuan, and shall give warnings to the executives directly responsible and other staff directly responsible and impose them a fine of more than RMB5,000 yuan but less than RMB50,000 yuan, and if a crime is constituted, a criminal liability shall be investigated according to the provisions of the criminal law:

(1) to forge, alter or use forged or altered legal documents, seals or signatures in handling trademark matters;
(2) To attract trademark business by defaming other trademark agencies or to disturb the trademark agency market order by other unfair means; or
(3) To violate the provisions of Article 19 paragraph 3 or 4.

Where a trademark agency has an act as provided in the provision of the preceding paragraph, the administrative authority for industry and commerce shall record it into the credit archives, and if the circumstance is serious, the Trademark Office or the Trademark Review and Adjudication Board may in addition order it to stop its trademark agency business and shall publish it.

Where a trademark agency, violates the principle of good faith and infringes the legitimate interests of the clients, it shall bear the civil liability in accordance with laws and regulations and shall be punished by the trademark agency association based on its articles.

Article 69.  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.

State personnel in the Trademark Office and the Trademark Review and Adjudication Board and other personnel responsible for trademark registration, administration and review shall not be involved in trademark agency services or in the production or trading of goods.

Article 70.  Administrative authorities for industry and commerce shall establish and perfect an internal supervisory system to supervise and inspect the way state personnel responsible for trademark registration, administration, and review implement laws and administrative rules and regulations and observe discipline.

Article 71.  Where a member of state personnel responsible for trademark registration, administration and review is derelict of duty, abuses power, or practices fraud for personal considerations, or handles trademark registration, administration, and review matters in violation of the law, or accepts money or property from an interested party, or seeks improper gains, if the case is so serious as to constitute a crime, he shall be prosecuted according to law for his criminal liabilities; where the case does not constitute a crime, he shall be subject to disciplinary actions according to rules and regulations.