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Trademark Law of the People's Republic of China (2001)

( Adopted at the 24th Session of the Standing Committee of
the Fifth National People 's Congress on August 23, 1982, as amended 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, and
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 )
 

Protection of the Exclusive Right to Use a Registered Trademark

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:

(1) uses a trademark that is identical with or similar to a registered trademark in relation to identical or similar goods without the consent of the owner of the registered trademark;

(2) offers for sale goods that are in infringement of the exclusive right to use a registered trademark;

(3) counterfeits, or makes without authorization, representations of a registered trademark of another person, or offers for sale such representations;

(4) changes a registered trademark and put goods bearing the changed trademark on market without consent of the owner of the registered trademark; or

(5) causes, in other respects, prejudice to the exclusive right of another person to use a registered trademark.

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:

(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.

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.

Where the profit earned by the infringer or losses suffered by the infringee through the infringement mentioned in the preceding paragraph cannot be determined, the people's court shall grant a compensation not exceeding RMB 500,000 yuan, according to the circumstances of the act of infringement.

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 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.

The people's court shall apply the provisions in Article 93 to Article 96 and Article 99 of the Civil Procedural Law of the People's Republic of China in handling the application provided in the preceding paragraph.

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.

The people's court shall make a decision within forty-eight hours from receipt of the application. Where the people's court decides to provide the preservative measures, the decision shall be executed immediately.

The people's court may order the applicant to provide security. Where no security is provided, the people's court shall reject the application.

Where the applicant fails to institute legal proceedings within fifteen days from the day on which the people's court takes the preservative measures, the people's court shall revoke the measures.

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.

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 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.

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 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 62.   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 administrative disciplinary measures according to rules and regulations.