Trademark Law of China
Sep 07,2021
Chapter I General Provisions
Article 1 The Trademark Law of the People's Republic of China (hereinafter referred to as "the Law") is enacted for the purposes of improving the administration of trademarks, protecting the exclusive right to use a trademark, encouraging producers or operators to guarantee the quality of their goods or services and maintain thereputation of their trademarks, with a view to protecting the interests of consumers,producers and operators and promoting the development of the socialist market economy.
Article 2 The administrative department for industry and commerce under the StateCouncil has established a Trademark Office to take charge of matters concerningtrademark registration and administration throughout the country.The administrative department for industry and commerce under the State Council hasestablished a Trademark Review and Adjudication Board to be responsible forhandling of trademark disputes.
Article 3 "Registered trademark" refers to trademarks that have been approved by andregistered with the Trademark Office, including goods marks, service marks,collective marks and certification marks. The registrant of a trademark enjoys theexclusive right to use the trademark, which shall be protected by law."Collective mark" in the Law refers to a mark registered in the name of a group,association, or any other organization and used in business activities by its membersto indicate their membership."Certification mark" in the Law refers to a mark which is controlled by anorganization that exercises supervision over particular goods or services and which isused to indicate that third-party goods or services meet certain standards pertaining toplace of origin, raw materials, mode of manufacture, quality, or other specificcharacteristics.Special matters pertaining to the registration and administration of collective marksand certification marks shall be specified by the administrative department forindustry and commerce under the State Council.
Article 4 Any natural person, legal person, or other organizations that needs to acquirethe exclusive right to use a trademark in the production and operation activities shallfile an application for trademark registration with the Trademark Office. Theapplication for trademark registration that is malicious and not filed for the purpose ofuse shall be refused.Provisions of the Law regarding goods marks apply to service marks.
Article 5 Two or more natural persons, legal persons, or other organizations mayjointly file an application for the registration of the same trademark with theTrademark Office, jointly enjoying and exercising the exclusive right to use thetrademark.
Article 6 With respect to goods requiring the use of a registered trademark accordingto the laws and administrative laws and regulations, an application for trademarkregistration shall be filed; the goods may not be sold on the market before theregistration thereof is approved.
Article 7 The application for registration and use of a trademark shall be based on theprinciple of good faith.Users of a trademark shall be liable for the quality of the goods on which thetrademark is used. The administrative department for industry and commerce at alllevels shall, through the administration of trademarks, prohibit any practice thatdefrauds the consumers.
Article 8 Any sign that distinguishes the goods of a natural person, legal person, orother organizations from those of others, including any word, device, letter, number,three-dimensional sign, color combination, sound and combination thereof, may beregistered as a trademark.
Article 9 The trademark applied for registration shall have distinctive characteristicsfor identification, and shall not conflict with the prior legitimate rights of others.The registrant of a trademark has the right to indicate the wording 'RegisteredTrademark' or a sign indicating that it is registered.
Article 10 The following signs shall not be used as trademarks:1. Those identical with or similar to the State name, national flag, national emblem,national anthem, military flag, army emblem, military songs, medals and others of thePeople's Republic of China; those identical with the names and signs of central stateorgans, names of the specific locations thereof, or those identical with the names ordevice of landmark buildings;2. Those identical with or similar to the state names, national flags, national emblemsor military flags of foreign countries, unless permitted by the government of thecountry;3. Those identical with or similar to the names, flags, or emblems of internationalinter-governmental organizations, unless permitted by the organization concerned orunlikely to mislead the public;4. Those identical with or similar to an official sign or inspection seal that indicatescontrol and guarantee, unless it is authorized;5. Those identical with or similar to the names or signs of the Red Cross or the RedCrescent;6. Those of discrimination against any race;7. Those of fraud that may easily mislead the public in the characteristics such as thequality of goods, or place of production; and8. Those detrimental to socialist morals or customs, or having other unhealthyinfluences.The geographical names of administrative divisions at or above the county level andforeign geographical names well-known to the public shall not be used as trademarks,except for geographical names that contain other meanings or constitute parts of acollective mark or certification mark. Where a trademark bearing any of the abovementionedgeographical names has been registered, it shall continue to be valid.
Article 11 The following signs shall not be registered as trademarks:1. Marks that only bear the generic names, devices, or model numbers of the goods;2. Marks that simply indicate the quality, main raw materials, function, use, weight,quantity or other features of the goods;3. Marks that lack distinctive characteristics.The signs referred to in the preceding paragraph may be registered as a trademarkwhere it has acquired distinctiveness through use and is readily distinguishable.
Article 12 Where a three-dimensional sign is applied for registration as a trademark,application shall be rejected if the three-dimensional sign merely indicates the shapeinherent in the nature of the goods concerned or if the three-dimensional sign is onlydictated by the need to achieve technical effects or the need to give the goodssubstantive value.
Article 13 Holders of trademarks known to the public may seek for protection of wellknowntrademarks in accordance with the provisions hereof, when they believe thattheir rights have been infringed.Where a mark is a reproduction, imitation, or translation of a third party's well-knowntrademark that has not been registered in China in respect of identical or similargoods, which is likely to lead to confusion, such mark shall not be registered and shallbe prohibited from being used.Where a mark is a reproduction, imitation, or translation of a third party's well-knowntrademark that has been registered in China in respect of different or other types ofgoods, which may mislead the public and damage the interests of the registrant of thewell-known trademark, such mark shall not be registered and shall be prohibited frombeing used.
Article 14 Well-known trademarks shall be, as requested by the party involved,determined as those facts that are required to be determined when handlingtrademark-related cases. The following factors shall be considered in determining awell-known trademark:1. The popularity degree of the trademark in its trading areas;2. The duration the trademark has been in use;3. The duration, extent and geographical range of advertising and publicity of thetrademark;4. The records on the protection of the trademark as a well-known trademark; and5. Other reasons for the reputation of the trademark.During the process of registered trademark review or investigation of cases inviolation of laws concerning trademarks by the administrative department for industryand commerce, where the parties involved claim their rights in accordance with theprovisions of Article 13 hereof, the Trademark Office may, as required by such reviewor handling, determine whether the trademarks are well-known trademarks or not.During the settlement of disputes in connection with trademarks, where the partiesinvolved claim their rights in accordance with the provisions of Article 13 hereof, theTrademark Review and Adjudication Board may, as required by case handling,determine whether the trademarks are well-known trademarks or not.During the process of hearing civil or administrative cases concerning trademarks,where the parties involved claim their rights in accordance with the provisions ofArticle 13 hereof, the people's court designated by the Supreme People's Court may,as required by case hearing, determine whether the trademarks are well-knowntrademarks or not.Producers and operators shall neither use characters such as "Well-known Trademark"in the goods, on the packaging or vessels nor apply the same for advertising,exhibition or other commercial activities.
Article 15 In the event that an agent or a representative seeks to register the client'strademark in its own name without the authorization of the client and faces objectionfrom the client, such trademark shall not be registered and be prohibited from beingused.Where a trademark that the applicant applies for registration with respect to the sameor similar goods is the same as or similar to an unregistered trademark that has beenused by others, and there is contractual, business or any other relation between theapplicant and others in addition to previous provisions, such trademark shall not beregistered when the others raise objections.
Article 16 In the event that a trademark containing a geographical indication of goodsmisleads the public for the goods does not come from the location as stated in theindication, such trademark shall not be registered and shall be prohibited from beingused. However, if the registration has been obtained in goodwill, such registrationshall continue to be valid.The geographical indication set forth in the preceding paragraph refers to a signindicating the place of origin of the goods of which the special quality, reputation orother characteristics are primarily determined by the natural conditions or otherhumanistic conditions of the location involved.
Article 17 A foreigner or foreign enterprise applying for trademark registration inChina shall be subject to the agreement concluded by and between the country towhich the applicant belongs and the People's Republic of China, or the internationaltreaty to which both countries are parties, or on the basis of the principle ofreciprocity.
Article 18 Matters concerning application for trademark registration or other issues inconnection with trademarks may be handled independently, or a qualified trademarkagency that has been established in accordance with laws may be entrusted.The foreigner or foreign enterprise that needs to apply for the registration of atrademark or handle any other trademark matters in China shall authorize anorganization qualified as a trademark agency.
Article 19 The trademark agency shall apply for registered trademarks or handle anyother trademark matters authorized by the clients based on the principle of integrity,honesty and credibility and in accordance with laws and administrative rules andregulations; and the trademark agency shall assume confidentiality obligations fortrade secrets of the client obtained during the agency.The trademark that the client applies for registration may not be registered inaccordance with the Law, in which case the trademark agency shall explicitly notifythe client.The trademark agency knows or has already known that, where the client applies for atrademark that falls into Article 4, Article 15 and Article 32 hereof, the trademarkagency shall not accept the entrustment.Except for the registration of trademarks on behalf of client, the trademark agencyshall not apply for the registration of any other trademarks.
Article 20 The industry organization of trademark agency shall strictly implementconditions on absorption of members in accordance with the provisions its articles ofassociation, and shall impose penalty on those members that have breached the selfdisciplinestandards of the industry. Such absorption of or penalty on members by theindustry organization shall be made available to the public on a timely basis.
Article 21 International registration of trademarks shall be subject to the system thathas been established by conclusion or participation in relevant international treatywith specific measures subject to the provisions of the State Council.
Chapter II Application for Trademark Registration
Article 22 An applicant for trademark registration shall fill in the class and thedesignation of the goods on which the trademark is to be used in accordance with theprescribed classification of goods and file the registration application.An applicant for trademark registration may apply for registering the same trademarkfor several classes of goods through one application.Documents concerning application for trademark registration may be filed in writingor via data message.
Article 23 If a registered trademark needs to secure the exclusive rights to use aregistered trademark on goods beyond the verified range of use, a separate applicationfor registration shall be filed.
Article 24 If a registered trademark needs to change its sign, a new registrationapplication shall be filed.
Article 25 Where an applicant for trademark registration files an application fortrademark registration in China within six months of filing the first application forregistering the same trademark for the same goods in a foreign country, the applicantmay have priority in accordance with any agreement concluded by and between thePeople's Republic of China and the foreign country concerned, or with theinternational treaty to which both countries are parties, or on the basis of the principleof reciprocity.An applicant claiming priority in accordance with the preceding paragraph shall statein writing at the time of filing the trademark registration application and shall submita copy of the first-filed trademark registration application within three months. Anapplicant who neither claims priority in writing nor submits a copy of the saidtrademark registration application shall be deemed as not claiming priority.
Article 26 In the event that an applicant uses a trademark for the first time on goodsdisplayed at an international exhibition organized or recognized by the ChineseGovernment, the applicant may be entitled to priority provided that it files anapplication to register the trademark within six months from the date of the exhibition.An applicant claiming priority in accordance with the preceding paragraph shall statein writing at the time of filing the trademark registration application and shall submitthe name of the exhibition within three months, evidence showing the use of the markon the goods displayed, and documents validating the date of the exhibition. Anapplicant who neither claims priority in writing nor submit the necessary documentsshall be deemed as not claiming priority.
Article 27 Matters and all the information submitted for trademark application shall be authentic, accurate, and complete.
Chapter III Examination and Approval of Trademark Registration
Article 28 For a trademark applied for registration, the Trademark Office shall, within
nine months upon receipt of application documents for trademark registration, complete the examination. Where the provisions of the Law have been complied with,the Trademark Office shall make an announcement on preliminary examination anddetermination.
Article 29 During the process of examination, where the Trademark Office considersthat the contents of the application for trademark registration are required to beexplained or revised, it may ask the applicant to make explanation or correction; thefailure of the applicant to make such explanation or correction will exert no effort onthe decision made by the Trademark Office.
Article 30 Where a trademark to be applied for registration is in nonconformity withthe relevant provisions of the Law, or it is identical with or similar to the trademark ofanother person that has, in respect of the same or similar goods, been registered orpreliminarily approved, the Trademark Office shall refuse the application withoutannouncement.
Article 31 Where two or more applicants apply for the registration of identical orsimilar trademarks for the same or similar goods, the preliminary approval and theannouncement shall be made for the trademark that was first filed. Where applicationsare filed on the same day, the preliminary approval, and the announcement shall bemade for the trademark that is used the earliest, and the applications of the others shallbe refused without announcement.
Article 32 The trademark application shall neither infringe upon another party's priorexisting rights, nor be an improper means to register a trademark that is already in useby another party and enjoys substantial influence.
Article 33 Where any prior right owner or interested person believes that provisionsof Paragraphs 2 and 3 of Article 13, Article 15, Paragraph 1 of Article 16, Article 30,Article 31 or Article 32 of the Law have been breached or any person believes that theprovisions of Article 4, Article 10, Article 11, Article 12 or Paragraph 4 of Article 19have been violated, it may raise an objection to the Trade Office against a trademarkthat has been published after a preliminary examination within three months from thedate of announcement. When no objections have been raised upon expiration of suchperiod, the application shall be approved for registration with issuance of a certificateof trademark registration and announcement of the trademark.
Article 34 The Trademark Office shall notify the applicant in writing of the trademarkthat has been rejected and has not been published. The applicant who is dissatisfiedwith the decision may apply to the Trademark Review and Adjudication Board for areview within 15 days from receipt of the notice. The Trademark Review andAdjudication Board shall make a ruling within nine months from receipt of theapplication, and notify the applicant in writing. In case of prolonging such period forcertain special situations, it may be prolonged for three months after the approval ofthe administrative department for industry and commerce under the State Council. Inthe event that the party concerned is dissatisfied with the ruling of the TrademarkReview and Adjudication Board, it may appeal to the People's Court within 30 daysfrom receipt of the notice.
Article 35 In the event that an objection is raised against a trademark published afterpreliminary examination, the Trademark Office shall consider the facts and groundssubmitted by both the dissenting party and the person challenged and shall decide onwhether the registration is allowed within 12 months upon the expiration ofannouncement after investigation and verification, and notify the dissenting party andthe person challenged in writing. In case of prolonging such period for certain specialsituations, it may be prolonged for six months after the approval of the administrativedepartment for industry and commerce under the State Council.Where the Trademark Office decides to approve the registration, it shall grant acertificate of trademark registration to the person challenged and publish the same. Incase the dissenting party is dissatisfied, it may request to the Trademark Review andAdjudication Board for nullification of the registered trademark according to Article44 and Article 45 hereof.Where the Trademark Office decides not to approve the registration and the personchallenged is dissatisfied, it may apply to the Trademark Review and AdjudicationBoard for review within 15 days upon receipt of the notice, which shall, with 12months upon receipt of the notice, make a ruling for the review and notify thedissenting party and the person challenged in writing. In case of prolonging suchperiod for certain special situations, it may be prolonged for six months after theapproval of the administrative department for industry and commerce under the StateCouncil. In the event that the person challenged is still dissatisfied with the ruling ofsuch review, it may file a lawsuit before the People's Court within 30 days uponreceipt of the notice. The People's Court shall notify the dissenting party ofparticipation in the proceedings as a third party.During the review by the Trademark Review and Adjudication Board in accordancewith previous provisions, where the determination of prior rights involved is based onanother case that the people's court is hearing, or the administrative organization ishandling, such review may be suspended. After the cause for such suspension iseliminated, the review shall be resumed.
Article 36 Upon expiry of the legal term, in the event that no party concerned appliesfor review against the rejection or refusal decision by the Trademark Office or filesany lawsuit with respect to the ruling of review by the Trademark Review andAdjudication Board before the People's Court, such rejection, refusal decision orruling of review shall come into force.Where the above-mentioned objection is disconfirmed upon examination and thus theregistration of the trademark in question is approved, the date of acquiring theexclusive right to use a trademark by the applicant shall be calculated as of theexpiration of three-month announcement period of preliminary examination. From theexpiry of the announcement period of the trademark till the ruling on approval ofregistration, there will be no retroactive effects for uses of symbols the same as orsimilar to the trademark or on the same or similar goods by others; however, wheresuch hostility of users causes losses to the trademark registrant, the users shallcompensate the same.
Article 37 The application for registration and review of trademarks shall beexamined on a timely basis.
Article 38 When the trademark application applicant or the registrant finds obviousmistakes in the trademark application documents or registration documents, it mayapply for correction. The Trademark Office shall make corrections within its power ofauthorities and notify the party concerned.The corrections referred to in the last paragraph shall not involve material contents ofthe trademark application or registration documents.
Chapter IV Renewal , Alteration, Assignment and Licensing of Registered Trademarks
Article 39 The period of validity of a registered trademark shall be ten years, startingfrom the day the registration is approved.
Article 40 When it is necessary to continue using the registered trademark uponexpiration of period of validity, an application for renewal shall be made within 12months before the expiration. If such an application cannot be filed within that period,an extension period of six months may be granted. The period of validity for eachrenewal of registration shall be ten years as of the next day of the previous period ofvalidity. If the formalities for renewal have not been handled upon expiration ofperiod of validity, the registered trademarks will be deregistered.The Trademark Office shall announce the registered trademarks for renewal.
Article 41 An application for alteration shall be filed if the name, address or the otherregistered matters of the registrant is required to be altered.
Article 42 In case of assignment of registered trademark, the transferor shall sign atransfer agreement with the transferee and jointly file an application with theTrademark Office. The transferee shall guarantee the quality of the goods on whichthe trademark is used.For assignment of registered trademarks, the trademark registrant shall assign similartrademarks on the same goods or the same or similar trademarks on similar goods.The Trademark Office shall not approve assignment of registered trademarks that mayeasily lead to confusion or other adverse effects, and notify the applicant in writingstating reasons thereof.The assignment of a registered trademark shall be published after it has beenapproved. The transferee enjoys exclusive right to use the trademark as of the date ofannouncement.
Article 43 The trademark registrant may, by concluding a trademark licensingcontract, authorize other persons to use the registered trademark. The licensor shallsupervise the quality of the goods on which the licensee uses the licensor's registeredtrademark, and the licensee shall guarantee the quality of the goods on which theregistered trademark is used.The party authorized to use others' registered trademark shall indicate the name of thelicensee and the place of origin on the goods that bear the registered trademark.When granting others to use the registered trademarks, the licensor shall file thelicense of the trademarks with the Trademark Office for records, which shallannounce the same. Without putting the licensing of the trademark on records, thetrademark shall not be used to defend the bona fide third party.
Chapter V Nullification of Registered Trademarks
Article 44 The Trademark Office shall annul the registered trademark if it violates the provisions of Articles 4, 10, 11, 12 or Paragraph 4 of Article 19 of the Law, or it was acquired by fraud or any other improper means. Other units or individuals mayrequest the Trademark Review and Adjudication Board for a ruling to annul such aregistered trademark.The Trademark Office shall notify the party concerned in writing of the nullificationof the registered trademarks. Where the party concerned is dissatisfied with the rulingmay apply to the Trademark Review and Adjudication Board for a review within 15days from the receipt of the notice. The Trademark Review and Adjudication Boardshall make a ruling within nine months from the receipt of the application, and notifythe party concerned in writing. In case of prolonging such period for certain specialsituations, it may be prolonged for three months after the approval of theadministrative department for industry and commerce under the State Council. In theevent that the party concerned is dissatisfied with the ruling of the Trademark Reviewand Adjudication Board, it may appeal to the People's Court within 30 days fromreceipt of the notice.Where other units or individuals request the Trademark Review and AdjudicationBoard for nullification of a registered trademark, the Trademark Review andAdjudication Board shall notify relevant parties upon receipt of the application, andrequest them to submit arguments within a specified time. The Trademark Review andAdjudication Board shall make a ruling on maintaining or nullification of registeredtrademark, and notify the party concerned of such ruling. Where the period is requiredto be prolonged in special circumstances, it may be extended by three months after theapproval of the administrative department for industry and commerce under the StateCouncil. In the event that the party concerned is dissatisfied with the ruling of theTrademark Review and Adjudication Board, it may appeal to the People's Courtwithin 30 days from receipt of the notice. The people's court shall notify thecounterparty of the trademark ruling procedures of participation in the proceedings asa third party.
Article 45 Where a registered trademark stands in violation of the provisions ofParagraphs 2 and 3 of Article 13, Article 15, Paragraph 1 of Article 16, Article 30,Article 31 and Article 32 hereof, the prior right owner or interested party may, withinfive years upon the registration date of such trademark, apply to the TrademarkReview and Adjudication Board for nullifying the same. In the event of maliciousregistration, owners of well-known trademark may exempt from the aforesaid fiveyearduration.The Trademark Review and Adjudication Board shall, upon receipt of the applicationfor nullification, notify the party concerned and request the same to respond witharguments within a specified period. The Trademark Review and Adjudication Boardshall, within 12 months upon receipt of such application, make a ruling onmaintaining or nullification of registered trademark, and notify the party concerned ofsuch ruling in writing. In case of prolonging such period for certain special situations,it may be prolonged for six months after the approval of the administrativedepartment for industry and commerce under the State Council. In the event that theparty concerned is dissatisfied with the ruling of the Trademark Review andAdjudication Board, it may appeal to the People's Court within 30 days from receiptof the notice. The people's court shall notify the counterparty of the trademark rulingprocedures of participation in the proceedings as a third party.During the review of nullification by the Trademark Review and Adjudication Boardin accordance with previous provisions, where the determination of prior rightsreferred to is based on another case that the people's court is hearing or theadministrative authority is handling, such review may be suspended. After the causefor such suspension is eliminated, the review shall be resumed.
Article 46 Upon expiry of the legal term, in the event that no party concerned appliesfor review against the decision of nullification of the registered trademark by theTrademark Office or files any lawsuit with respect to maintaining or nullification ofthe registered trademark by the Trademark Review and Adjudication Board before thePeople's Court, the decision of the Trademark Office or review decisions or ruling ofthe Trademark Review and Adjudication Board shall come into force.
Article 47 The registered trademark deemed as invalid according to Article 44 andArticle 45 shall be announced by the Trademark Office and the exclusive right to usesuch registered trademark deemed as inexistence ab initio.The decision or adjudication of nullifying a registered trademark has no retroactiveeffect upon trademark infringement verdicts, adjudications or mediation agreementsmade by the People's Court that have been enforced, trademark infringementdecisions made by the administrative department for industry and commerce that havebeen made and enforced or trademark assignment or license contracts which havebeen performed; provided, however, where the hostility of the trademark registrantcauses losses to others, the trademark registrant shall compensate the same.When the trademark infringement damages, assignment fee and trademark royalties will not be returned according to previous regulations, which is obviously contrary tofairness, the trademark infringement damages, assignment fee and trademark royaltiesshall be returned in whole or part.
Chapter VI Administration of the Use of Trademarks
Article 48 The use of trademarks herein refers to such activities as using trademarks on goods, goods packaging or containers and goods transaction documents, or using trademarks in advertising, exhibits and other commercial events so as to identify the sources thereof.
Article 49 Where a trademark registrant, at his/her discretion, alters the registered trademark, name or address of the registrant or other information during use of the registered trademark, the local administrative department for industry and commerce shall order such registrant to rectify the same. Where no rectification has been made upon expiration of the prescribed period, the Trademark Office shall revoke the registered trademark in question.
Where a registered trademark has become the generic name of the designated goods or stays unused for three consecutive years, any unit or individual may apply to the Trademark Office for revoking the same, which shall make decision within nine months upon receipt of such application. In case of prolonging such period for certain special situations, it may be prolonged for three months after the approval of the administrative department for industry and commerce under the State Council.
Article 50 If a registered trademark is revoked, nullified or subject to no renewal upon expiration of the period of validity, the Trademark Office shall not approve any application for the registration of a trademark identical with or similar to the said trademark within one year as of the day of the revocation, nullification or cancellation.
Article 51 In the event of a violation of the provisions of Article 6 hereof, the local administrative department for industry and commerce shall order the violator to file an application for registration within a specified period; in the event of illegal business revenue of over CNY50,000, a fine up to 20% of such revenue may be imposed; in the event of no illegal business revenue or illegal business revenue of less than CNY50,000, a fine up to CNY10,000 may be imposed.
Article 52 If the unregistered trademark is falsely represented as a registered one, or use of an unregistered trademark is in violation of Article 10 hereof, the local administrative department for industry and commerce shall stop such use, order rectification of the situation within a specified period, and may circulate a notice; in the event of illegal business revenue of over CNY50,000, a fine up to 20% of such revenue may be imposed; in the event of no illegal business revenue or business revenue of less than CNY50,000, a fine up to CNY10,000 may be imposed.
Article 53 In the event of a violation of provisions of Paragraph 5 of Article 14 hereof, the local administrative department for industry and commerce shall order a correction and impose a fine of CNY100,000.
Article 54 The party concerned that is dissatisfied with the decision of the Trademark Office to repeal or refuse to repeal the registered trademark may, within 15 days from the receipt of notice, apply to the Trademark Review and Adjudication Board for a review. The Trademark Review and Adjudication Board shall make a decision within nine months upon receipt of such application and notify the party concerned in writing. In case of prolonging such period for certain special situations, it may be
prolonged for three months after the approval of the administrative department for industry and commerce under the State Council. The party concerned is dissatisfied with the decision of the Trademark Review and Adjudication Board may institute legal proceedings with the People's Court within 30 days from the receipt of notice.
Article 55 Upon expiry of the legal term, in the event that no party concerned applies for review against revocation of the registered trademark or files any lawsuit with respect to the decision of review by the Trademark Review and Adjudication Board before the People's Court, such decision of revocation and the decision of review of registered trademark shall come into force.
The Trademark Office shall publish the revoked registered trademark and the exclusive right to use the same shall cease as of the date of announcement.
Chapter VII Protection of the Exclusive Right to Use a Registered Trademark
Article 56 The exclusive right to use a registered trademark shall be limited totrademarks that have been approved for registration and to goods on which the use of the trademark has been approved.
Article 57 Any of the following conducts shall constitute an infringement of theexclusive right to use a registered trademark:
1. Using a trademark that is identical with a registered trademark on the same goodswithout the licensing of the trademark registrant;
2. Using a trademark that is similar to a registered trademark on the same goods, orusing a trademark that is identical with or similar to a registered trademark on similargoods, which may be easily confusing, without the licensing of the trademarkregistrant;
3. Selling goods that violate the exclusive right to use a registered trademark;
4. Counterfeiting or arbitrarily forging others' registered trademark, or selling thecounterfeited or arbitrarily forged trademarks;
5. Altering the trademark registrant's registered trademark without authorization of thesame and selling goods bearing such altered trademark;
6. Providing convenience for or even help others to infringe the exclusive right to usea registered trademark on purpose;
7. Other conducts causing prejudice to others' exclusive right to use its registeredtrademark.Article 58 Using characters of the registered or unregistered well-known trademarksof others in the name of an enterprise to mislead the public that constitutes unfaircompetition shall be subject to the Anti-Unfair Competition Law of the People'sRepublic of China.Article 59 The exclusive right owner of a registered trademark may not prohibitothers from rightful use of the generic names, models or designs of the goods, ordirect reference to the quality, main raw materials, function, use, weight, quantity orother features of the goods, or geographical names as included in the registeredtrademark.The exclusive right owner of a registered trademark of 3D symbols may not prohibitothers from rightful use of the shapes generated from the nature of the goods inrespect of which the trademark is used, or shapes of the goods to realize certaintechnical effects, or shapes to provide the goods with substantive values.Where an identical or similar trademark with certain influence has been used, prior tothe use by the trademark registrant, with respect to the same goods or similar goodsby others before the trademark registrant's application for trademark registration, theexclusive right owner may not prohibit the user of the aforesaid trademark fromcontinuous use of such trademark within the original scope but may request its userfor addition of proper logos for distinction purpose.Article 60 In the event of infringement of the registered trademark as specified inArticle 57 hereof that leads to disputes, the parties concerned shall settle such disputesthrough negotiations; where no negotiation is prospective or fails, the trademarkregistrant or any interested party may file a lawsuit before the People's Court orrequest the administrative department for industry and commerce for handling.Where the foresaid infringement is confirmed, the administrative department forindustry and commerce shall order the infringer to cease such infringement, confiscateand destroy the infringing goods and tools used in producing such goods or forginglogos of the registered trademark. In the event of illegal business revenue of overCNY50,000, a fine up to five times of the revenue may be imposed; in the event of noillegal business revenue or illegal business revenue of less than CNY50,000, a fine upto CNY250,000 may be imposed; in the event of trademark infringement of more thantwo times within five years or other serious circumstances, a heavier punishment shallbe given. Where a seller with no knowledge of its infringing goods can prove thelegality of acquiring such goods and point out the provider, the administrativedepartment for industry and commerce shall order the seller to cease selling its goods.Where there is dispute concerning the amount of compensation for infringing theexclusive right to use the trademark, the party concerned may request theadministrative department for industry and commerce for mediation or file a lawsuitbefore the People's Court pursuant to the Civil Procedure Law of the People'sRepublic of China; In case of absence of agreements or nonperformance of mediationagreement upon effectiveness after the mediation by the administrative department forindustry and commerce, any party concerned may file a lawsuit before the People'sCourt pursuant to the Civil Procedure Law of the People's Republic of China.Article 61 The administrative department for industry and commerce has the power toinvestigate any conduct that infringes the exclusive right to use a registeredtrademark. In the event that a crime is suspected to have been committed, theadministrative department for industry and commerce shall promptly transfer the caseto the judicial department to be dealt with in accordance with the law.
Article 62 The administrative department for industry and commerce at or above thecounty level may, based on the available evidence of illegal conduct or informationsupplied by a member of the public, may exercise the following power ininvestigating activities suspected of infringing upon others' exclusive right to use aregistered trademark:1. Question the parties concerned and investigate the circumstances in connectionwith the infringement of others' exclusive right to use a registered trademark;2. Look up and copy the contracts, invoices, books, and other materials pertaining tothe trademark-infringing activities of the parties concerned;3. Conduct an on-site inspection of the premises where the party concerned issuspected of carrying out activities that have infringed upon others' exclusive right touse a registered trademark;4. Inspect the articles involved in trademark-infringing activities. Articles that areproven to have infringed upon others' exclusive right to use a registered trademarkmay be sealed and taken into custody.The parties concerned shall assist in and cooperate with the administrative departmentfor industry and commerce when the latter exercises the powers provided for in thepreceding paragraph in accordance with the law and shall not refuse or obstruct.During the process of investigating and handling a trademark infringement case, incase that any dispute arises with respect to the trademark ownership or the right ownerfiles a lawsuit regarding such infringement before the People's Court, theadministrative department for industry and commerce may suspend the aforesaidprocess. As the cause for suspension is eliminated, the process shall be restored orclosed.
Article 63 The amount of compensation for infringing the exclusive right to use thetrademark shall be determined based on the right owner's actual losses due toinfringement or the infringer's actual interests obtained due to the same if the actuallosses are hard to be determined, or may be determined based on times of the royaltiesof the registered trademark when both the losses or the infringer's actual interestsobtained are hard to be determined. For seriously malicious infringement, the amountof compensation may be between one time to five times the aforesaid amountdetermined in light of the foregoing regulations. The amount of compensation shallinclude reasonable expenses of the right owner to prevent the infringement.For the purpose of determining the amount of compensation, where the account booksand information regarding the infringement are held by the infringer while the rightowner has put to the proof as practical as possible, the People's Court may order theinfringer submit such account books and information; in case the infringer refuses tosubmit the account books and information or submit a false version thereof, thePeople's Court may determine the amount of compensation with reference to the rightowner's claim and proof.Where it is hard to determine the right owner's actual losses due to infringement, theinfringer's actual interests obtained due to the same or the royalties of the registeredtrademark, the People's Court shall, based on the actual circumstance of infringement,bring in a verdict of amount up to CNY5 million.In hearing a case of trademark dispute, the People's Court may, at the request of theright owner, order to destroy the goods bearing counterfeit registered trademark,unless under special circumstances; order to destroy the materials and tools mainlyused to manufacture the goods bearing counterfeit registered trademarks, withoutcompensation; or, under special circumstances, order to prohibit the aforesaidmaterials and tools from entering any commercial channel without compensation.Goods bearing counterfeit registered trademarks shall not be put into any commercialchannel by merely having their counterfeit registered trademarks removed.Article 64 Where the owner of the exclusive right to use a registered trademark claimsfor compensation and the infringer challenge raises a plea that such owner has neverused the registered trademark in question, the People's Court may request such ownerto provide the proof of using the trademark over the past three years. In case suchowner fails to neither provide the aforesaid proof nor the proof of losses due toinfringement, the infringer challenged shall bear no liability for compensation.Where a seller selling goods who is ignorant of infringing others' registered trademarkcan prove the legality of acquiring such goods and point out the provider, such sellershall be exempted from liabilities for compensations.
Article 65 Where a trademark registrant or any interested party could prove that theinfringement in process or to be conducted on the exclusive right to use the registeredtrademark will cause irretrievable losses to their legal interests if lack of prevention ina timely manner, they may apply to the People's Court for taking such measures asordering the infringer to cease relevant behaviors and property preservation beforefiling any lawsuit.
Article 66 In order to stop trademark infringing activities, a trademark registrant or aninterested party may, prior to filing a lawsuit, apply to the People's Court for evidencepreservation when such evidence may be destroyed or lost or become unobtainable inthe future.
Article 67 Any person who, without the permission of trademark registrants, uses atrademark identical with the registrant's trademark for the same goods, where the caseconstitutes a crime, shall be prosecuted according to the law for its criminal liabilities,in addition to compensation of the losses suffered by the infringed.Any person who forges or counterfeits others' registered trademark or sells registeredtrademarks that are forged or counterfeited shall, if the act constitutes a crime, beinvestigated for criminal responsibility according to the law in addition tocompensation of the losses suffered by the infringed.Any person who knowingly sells goods bearing counterfeit registered trademarksshall, if the act constitutes a crime, be investigated for criminal responsibilityaccording to the law in addition to compensation of the losses suffered by theinfringed.
Article 68 If a trademark agency has any one of the following conducts, theadministrative department for industry and commerce shall order the agencyorganization to rectify the same within a specified time, give corresponding warningand impose a fine of more than CNY10,000 up to CNY100,000; and give warnings tomanagement in direct charges and the other persons in direct charge and impose a fineof more than CNY5,000 up to CNY50,000; those who have committed crimes shallbe held for criminal responsibilities:1. Forging/altering legal documents, seals or signatures or using forged/altered legaldocuments, seals or signatures during the process of handling trademark-relatedmatters;2. Soliciting agency business by slandering other trademark agencies or disturbing thetrademark agency market order by other unjust means; and3. Violating the provisions of Article 4, Paragraphs 3 and 4 of Article 19 of the Law.4. In the event of any malicious application for trademark registration, suchadministrative penalties as giving a warning and imposing a fine shall be given,depending on the specific circumstance; in the event of maliciously lodging a lawsuitregarding trademark, the People's Court shall impose penalties in accordance with thelaw.Where a trademark agency has had conducts stipulated in the previous paragraph, itwill be recorded by the administrative department for industry and commerce in thefiles of credits; in case of serious circumstances, the Trademark Office and theTrademark Review and Adjudication Board may cease accepting its agency businessand make relevant announcement.Where a trademark agency violates the principle of good faith and thus infringes theclient's legal interests, such organization shall bear relevant civil liability according tolaw and be punished by the industry organization of trademark agency in accordancewith the articles of association.
Article 69 State personnel engaging in trademark registration, administration, andreview 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 AdjudicationBoard and other personnel engaging in trademark registration, administration, andreview shall not be involved in trademark agency services, production, or the tradingof goods.
Article 70 The administrative department for industry and commerce shall establish acomprehensive internal supervisory system to supervise and inspect the statepersonnel responsible for trademark registration, administration, and review in the lawand administrative rules and regulations implementation and discipline observance.
Article 71 The state personnel engaging in trademark registration, administration, andreview who neglect their duty, abuse their official power, commit fraud for personalconsiderations, handle trademark registration matters in violation of laws, acceptmoney or properties from a party concerned or seek improper gains, shall beprosecuted according to the law for their criminal liabilities if the case constitutes acrime. For the case that does not constitute a crime, the personnel involved shall besubject to sanctions.
Chapter VIII Supplementary Provisions
Article 72 Applicants for trademark registration and the handling of other trademark matters shall be subject to fee payment, the specific charging standards of which will be prescribed separately.
Article 73 The Law shall come into force as of March 1, 1983. The Administrative Regulations on Trademark promulgated by the State Council on April 10, 1963 shall simultaneously be repealed, and any other provisions concerning trademark administration that conflict with the Law shall be ineffective simultaneously.
Trademarks registered before the implementation of the Law shall continue to be valid.