2002-1-8
(Adopted at the 24th
Session of the Standing Committee of the Fifth National People's Congress on
August 23, 1982, and amended according to the "Decision on the Revision
of the 'Trademark Law of the People's Republic of China'" adopted at the
3Oth~ Session of the Standing Committee of the Seventh National People's
Congress, on February 22, 1993)
Chapter I. General Provisions
Article 1. This Law is enacted for the purposes of
improving the administration of trademarks, protecting the exelusive right to
use a trademark, and of encouraging producers to guarantee the quality of
their goods and maintain the reputation of their trademarks, with a view to
protecting consumers' interests and to promoting the development of socialist
commodity 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.
Article 3. A registered trademark means a trademark
that has been approved and registered by the Trademark Office. The trademark
registrant shall enjoy an exclusive right to use the trademark, which shall
be protected by law.
Article 4. Any cnterprise, institution, or
individual producer or trader, intending to acquire the exclusive right to
use a trademark for the goods produced, manufactured, processed, selected or
marketed by it or him, shall file an application for the registration of the
goods trademark with the Trademark Office.
Any enterprise, institution, or individual producer
or trader, intending to acquire the exclusive right to use a service mark f6r
the services provided by it or him, shall file an application for the
registration of the service mark with the Trademark Office.
The provisions made in this Law concerning goods
trademarks shall apply to service marks.
Article 5. As for any of such goods, as prescribed
by the State, that must bear a registered trademark, a trademark registration
must be applied for. Where no trademark registration has been granted, such
goods cannot be sold on the market.
Article 6. 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, exercise supervision over
the quality of the goods and shall stop any practice that deceives consumers.
Article 7. Any word, device or their combination
that is used as a trademark shall be so distinctive as to be distinguishable.
Where a registered trademark is used, it shall carry the indication of
"Registered Trademark" or a sign indicating that it is registered.
Article 8. In trademarks, the following words or
devices shall not be used:
(1) those identical with or similar to the State
name, national flag, nalional emblem, military flag, or decorations, of the
People's Republic of China;
(2) those identical with or similar to the State
names, national flags, national emblems or military flags of foreign
countries;
(3) those identical with or similar to the flags,
emblems or names, of international intergovernmental organizations;
(4) those identical with or similar to the symbols,
or names, of the Red Cross or the Red Crescent;
(5) those relating to generic names or designs of
the goods in respect of which the trademark is used;
(6) 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 trademark is used;
(7) those having the nature of discrimination against
any nationality;
(8) those having the nature of exaggeration and
fraud in advertising goods; and
(9) 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 names as
have otherwise meanings 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 9. Any foreigner 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 principle of reciprocity.
Article 10. Any foreigner or foreign enterprise
intending to apply for the registration of a trademark or for any other
matters concerning a trademark in China shall entrust any of such
organizations as designated by the State to act as his or its agent.
Chapter II. Application for Trademark Registration
Article 11. An applicant for the registration of
trademark shall, in a form, indicate, in accordance with the prescribed
classification of goods, the class of the goods are the designation of the goods
in respect of which the trademark is to be used.
Article 12. Where any applicant intends to use the
same trademark for goods in different classes, an application for
registration shall be filed in respect of each class of the prescribed classification
of goods.
Article 13. Where a registered trademark is to be
used in respect of other goods of the same class, a new application for
registration shall be filed.
Article 14. Where any word or device of a registered
trademark is to be altered, a new registration shall be applied for.
Article 15. Where, after the registration of a
trademark, the name, address or other registered matters concerning the
registrant change, an application regarding the change shall be filed.
Chapter III. Examination for and Approval Trademark
Registration
Article 16. Where a trademark the registration of
which has been applied for is in conformity with the relevant provisions of
this Law, the Trademark Office shall, after examination, preliminarily
approve the trademark and publish it.
Article 17. 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 18. 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 19. Any person may. within three months from
the date of the publication, file an opposition against the trademark that
has, after examination, been preliminarily approved. If no opposition has
been filed, or if it is decided that the opposition is not justified, the
registration shall be approved, a certificate of trademark registration shall
be issued and the trademark shall be published. If it is decided that the
opposition is justified, no registration shall be approved.
Article 20. The Trademark Review and Adjudication
Board, established under the administrative authority for industry and
commerce under the State Council, shall be responsible for handling trademark
disputes.
Article 21. 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
notification, apply for a review. The Trademark Review and Adjudication Board
shall make a final decision and notify the applicant in writing.
Article 22. 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, after investigation and verification, make
a decision. Where any party is dissatisfied, he may, within fifteen days from
receipt of the notification, apply for a review, and the Trademark Review and
Adjudication Board shall make a final decision and notify both the opponent
and applicant in writing.
Chapter IV. Renewal, Assignment and Licensing of
Registered Trademarks
Article 23. The period of validity of a registered
trademark shall be ten years, counted from the date of approval of the
registration.
Article 24. 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
six months before the said expiration. Where no application therefor 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 of 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 25. Where a registered trademark is
assigned, both the assignor and assignee shall 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.
The assignment of a registered trademark shall be
published after it has been approved.
Article 26. 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.
Chapter V. Adjudication of Disputes Concerning
Registered Trademarks
Article 27. Where a registered trademark stands in
violation of the provisions of Article 8 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.
In addition to those cases as provided for in the
preceding paragraph, any person disputing a registered trademark may, within
one year from the date of approval of the trademark registration, apply to
the Trademark Review and Adjudication Board for adjudication.
The Trademark Review and Adjudication Board shall,
after receipt of the application for adjudication, notify the interested
parties and request them to respond with arguments within a specified period.
Article 28. Where a trademark, before its being
approved for registration, has been the object of opposition and decision, no
application for adjudication may be filed based on the same facts and
grounds.
Article 29. After the Trademark Review and
Adjudication Board has made a final adjudication either to maintain or to
cancel a registered trademark, it shall notify the interested parties of the
same in writing.
Chapter VI. Administration of the Use of Trademarks
Article 30. Where any person who uses a registered
trademark has committed any of the following, the Trademark Office shall
order him to rectify the situation within a specified period or even cancel
the registered trademark:
(1) Where any word, device or their combination of a
registered trademark is altered unilaterally (that is, without the required
registration);
(2) where the name, address or other registered
matters concerning the registrant of a registered trademark are changed
unilaterally (that is, without the required application);
(3) where the registered trademark is assigned
unilaterally (that is, without the required approval); and
(4) where the registered trademark has ceased to be
used for three consecutive years.
Article 31. Where a registered trademark is used in
respect of the goods that have been roughly or poorly manufactured, or whose
superior quality has been replaced by inferior quality, so that consumers are
deceived, the administrative authorities for industry and commerce at
different levels shall, according to the circumstances, order rectification
of the situation within a specified period, and may, in addition, circulate a
notice of criticism or impose a fine, and the Trademark Office may even
cancel the registered trademark.
Article 32. Where a registered trademark has been
cancelled or has not been renewed at the expiration, the Trademark Office
shall, during one year from the date of the cancellation or removal thereof,
approve no application for the registration of a trademark that is identical
with or similar to the said trademark.
Article 33. Where any person violates the provisions
of Article 5 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, and may, in addition, impose a fine.
Article 34. 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
trademark, order him to rectify the situation within a specified period, and
may, in addition, circulate a notice of criticism or impose a fine:
(1) where the trademark is falsely represented as
registered;
(2) where any provision of Article 8 of this Law is
violated; and
(3) where the manufacture is rough or poor, or where
superior quality is replaced by inferior quality, so that consumers are
deceived.
Article 35. Any party dissatisfied with the decision
of the Trademark Office 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 final decision and
notify the applicant in writing.
Article 36. Any party dissatisfied with the decision
of the administrative authority for industry and commerce to impose a fine
under the provisions of Article 31, Article 33 or Article 34 may, within
fifteen days from receipt of the corresponding notice, institute legal
proceedings with the people's court. If there have been instituted no legal
proceedings or made no performance of the decision at the expiration of the
said period, the administrative authority for industry and commerce may
request the people's court for compulsory execution thereof.
Chapter VII. Protection of the Exclusive Rights to
Use Registered Trademarks
Article 37. 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 38. Any of the following acts shall be an
infringement of the exclusive right to use a registered trademark:
(1) to use a trademark that is identical with or
similar to a registered trademark in respect of the same or similar goods
without the authorization of the proprietor of the registered trademark;
(2) to sell goods that he knows bear a counterfeited
registered trademark;
(3) 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;
(4) to cause, in other respects, prejudice to the
exclusive right of another person to use a registered trademark.
Article 39. Where any party has committed any of
such acts to infringe the exclusive right to use a registered trademark as
provided for in Article 38 of this Law, the infringee may request the
administrative authority for industry and commerce at or above the county
level for actions. The administrative authority for industry and commerce
shall have the power to order the infringer to immediately stop the
infringing act and to compensate the infringee for the damages suffered by
the latter. The amount of compensation shall be the profit that the infringer
has earned through the infringement during the period of the infringement or
the damages that the infringee has suffered through the infringement during
the period of the infringement. Where the infringement of the exclusive right
to use a registered trademark is not serious enough to constitute a crime,
the administrative authority for industry and commerce may impose a fine.
Where any interested party is dissatisfied with the decision of handling made
by the administrative authority for industry and commerce to order him to
stop the infringing act or to impose a fine, he may, within fifteen days from
receipt of the notice, institute legal proceedings with the people's court.
If there have been instituted no legal proceedings or made no performance of
the decision (to impose a fine) at the expiration of the said period, the
administrative authority for industry and commerce shall request the people's
court for compulsory execution thereof.
Where the exclusive right to use a registered
trademark has been infringed, the infringee may institute legal proceedings
directly with the people's court.
Article 40. Where any party passes off a registered
trademark of another person, 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.
Chapter VIII. Supplementary Provisions
Article 41. Any application for a trademark
registration and for other matters concerning a trademark shall be subject to
payment of the fee as prescribed. The schedule of fees shall be prescribed
separately.
Article 42. The Implementing Regulations under this
Law shall be drawn up by the administrative authority for industry and
commerce under the State Council. They shall enter into force after they have
been submitted to and approved by the State Council.
Article 43. 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.
(Translation by the Trademark Office of the State
Administration for Industry and Commerce of the People's Republic of China)
(In case of discrepancy, the original version in
Chinese shall prevail.)
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