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| Know-How->Trademark->Laws
and Regulations |
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STIPULATIONS FOR RECOGNITION AND PROTECTION OF
WELL-KNOWN TRADEMARKS
Rule 1 These stipulations are hereby formulated in
accordance with the Trademark Law of the People¡¯s
Republic of China (hereinafter referred to as the
Trademark Law) and the Implementing Regulations of the
Trademark Law of the People¡¯s Republic of China
(hereinafter referred to as the Implementing
Regulations).
Rule 2 The ¡°well-known trademark¡± prescribed in the
stipulations refers to a trademark which the relevant
general public is very well aware of and which enjoys
the high prestige.
The ¡°relevant general public¡± shall include
consumers who use some products or services bearing the
trademark, merchants who produce the above-mentioned
products or furnish the service and relevant sellers and
employees concerned in their business channels
Rule 3 The following documentation could be used as the
evidence to prove well-known nature of a trademarks:
(1) Documentation to prove the extent to which the
relevant general public is aware of the trademark,
(2) Documentation to prove the duration of the use of
trademark, including the history and sphere of the use
and registration of trademark.
(3) Documentation to prove the duration, geographical
areas and extent to which the knowledge of the trademark
covers, including but not limited to the mode and
geographical areas of advertising and sales promotion,
the types of promoting media as well as the budget fixed
for the advertising.
(4) Documentation showing the record of the trademark
protected as a well-known trademark, including the
trademark being protected as a well-known trademark in
China or other countries and regions.
(5) Other documentation to prove the well-known nature
of the trademark, including the output, sales volume,
sales income, profit and taxes paid as well as sales
areas and so forth of the principal products bearing the
trademark.
Rule 4 If the party concerned holds that others¡¯
preliminarily approved and published trademark
contravenes the regulation of Article 13 of the
Trademark Law, he could, under the Trademark Law and the
Implementing Regulations thereof, file an opposition
with the Chinese Trademark Office and submit the
evidential documents to prove the well-known nature of
the trademark involved.
If the party concerned holds that other¡¯s registered
trademark contravenes the regulation of Article 13 of
the Trademark Law, he could, under the Trademark Law and
the Implementing Regulations thereof, request the
Trademark Review and Adjudication Board of the State
Administration for Industry and Commerce (hereinafter
referred to as the Trademark Review and Adjudication
Board) adjudicate on the cancellation of the registered
trademark and submit the evidential documents to prove
the well-known nature of the trademark involved.
Rule 5 During the process of administrating the
trademark, if the party concerned holds the trademark
used by others falls into the circumstances prescribed
by Article 13 of the Trademark Law and pleads for
protecting the well-known trademark, he could submit a
written application for prohibiting the use of the
trademark together with the evidential documents proving
the well-known nature of the trademark involved to the
municipal (provincial) administrative authority for
industry and commerce at the location where the case is
carried out, and at the same time reports to the
provincial administrative authority for industry and
commerce.
Rule 6 Upon receiving the application for the protection
of a well-known trademark, the administrative authority
for industry and commerce should examine whether the
case falls into the circumstances as provided in Article
13 of the Trademark Law:
(1) Whether others arbitrarily use the trademark similar
to or identical with an unregistered well-known
trademark in China with respect to the identical or
similar goods of the party concerned, and the likelihood
for the creation of confusion;
(2) Whether others arbitrarily use the trademark similar
to or identical with a registered well-known trademark
in China with respect to goods not identical or similar
to which the well-known trademark covers, and is likely
to mislead the public and damage the interests of the
owner of the registered well-known trademark;
The municipal (provincial) administrative authority for
industry and commerce should, as soon as it decides that
the case falls into the above-prescribed circumstances,
transfer all materials in the case file to the
provincial (autonomous region, municipality directly
under the Central Government) administrative authority
for industry and commerce at the location with fifteen
(15) working days from the date of accepting the filed
application of the party concerned, and issue a
Notification of Case Accept (notice of filing of the
application) to the party concerned; the provincial
(autonomous region, municipality directly under the
Central Government) administrative authority for
industry shall transfer all materials in the case file
to the Chinese Trademark Office within fifteen (15)
working days from the date of accepting the application
filed by the party concerned. The provincial
administrative authority for industry and commerce at
the location of the party concerned could also, if it
decides that a case falls into the above-prescribed
circumstances, transfer all the materials in the case
file to the Chinese Trademark Office.
If a case is decided to not fall into the
above-prescribed circumstances, it should be, under the
Trademark Law and the Implementing Regulations thereof,
settled without delay.
Rule 7 The provincial (autonomous region, municipality
directly under the Central Government) administrative
authority for industry shall examine the materials in
the case file transferred by the municipal (provincial)
administrative authority for industry and commerce
within the area under its jurisdiction.
The provincial (autonomous region, municipality directly
under the Central Government) administrative authority
for industry shall, if it decides a case falls into the
circumstances prescribed by Rule 6, Item 1 of the
Stipulations, transfer all the materials in the case
file to the Chinese Trademark Office within fifteen (15)
days from the date receiving the same transferred by the
municipal (provincial) administrative authority for
industry and commerce with the area under its
jurisdiction.
The provincial (autonomous region, municipality directly
under the Central Government) administrative authority
for industry shall, if decides a case does not fall into
the circumstances prescribed by Rule 6, Item 1 of the
Stipulations, return the relevant materials to the
original case accepting authority, which should, under
the Trademark Law and the Implementing Regulations
thereof, settle the case without delay.
Rule 8 The Chinese Trademark Office shall make the
recognition within six (6) months from the date the
relevant materials were received, inform the recognition
result to the provincial (autonomous region,
municipality directly under the Central Government)
administrative authority for industry at the location
the case is carried out, and copy to the provincial
(autonomous region, municipality directly under the
Central Government) administrative authority for
industry at the location the party concerned locates.
The Chinese Trademark Office shall, except the
evidential materials to prove the well-known nature of
the trademark, return all other materials in the case
file to the provincial (autonomous region, municipality
directly under the Central Government) administrative
authority for industry at the location the case is
carried out.
Rule 9 As to the trademark which is not recognized as a
well-known trademark, the party concerned shall not,
within one (1) year from the date the recognition was
made, plead for recognizing the same well-known nature
of the trademark on the basis of the same facts and
grounds.
Rule 10 The Chinese Trademark Office and the Trademark
Review and Adjudication Board shall, when recognizing
the well-known nature of a trademark, take into
comprehensive consideration the factors prescribed in
Article 14 of the Trademark Law, but is not required
that a trademark should fit all the factors prescribed
in Article 14.
Rule 11 The Chinese Trademark Office, the Trademark
Review and Adjudication Board and the local
administrative authority for industry shall, when
protecting a well-known trademark, take into
consideration the extent to which the trademark is
well-known and the distinctiveness thereof.
Rule 12 Where the party concerned pleads for the
protection for its trademark in accordance with Article
13 of the Trademark Law, he should furnish the
documentation of record showing the trademark was
protected by the Chinese competent authority as a
well-known trademark.
Where the accepted case shares a similar scope of
protection as the case in which the trademark was
protected as a well-known trademark, and the opposite
party has no objection to the well-known nature of the
trademark involved, or even raised an objection but
could not furnish the evidential documentation against
the well-known nature of the trademark involved, the
administrative authority for industry accepting the case
could, according to the conclusion drawn from the
protection record, pass judgment.
Where the scope of protection of the accepted case is
different from that of the case in which the trademark
was protected as a well-known trademark, or the opposite
party raised an objection and furnished evidential
documentation against the well-known nature of the
trademark involved, the Trademark Office or the
Trademark Review and Adjudication Board should
re-examine the documentation proving the well-known
nature of the trademark involved and make the
recognition.
Rule 13 Where the party concerned holds that others
record its well-known trademark as the name of others¡¯
enterprise, and the public are liable to be deceived or
misled, he could apply to the enterprise name recording
authority to cancel such enterprise name. The enterprise
name recording authority should settle the case
according to Enterprise Name Recordal Management
Regulations.
Rule 14 The administrative authority for industry at all
levels shall reinforce the protection for the well-known
trademarks, and duly transfer to the relevant authority
the case being suspected of the crime of counterfeit
trademark.
Rule 15 The provincial (autonomous region, municipality
directly under the Central Government) administrative
authority for industry at the location of an authority
settling a case should report the decision on protection
of the well-known trademarks to the Chinese Trademark
Office.
Rule 16 The administrative authority for industry at all
levels shall establish a corresponding supervisory
system and formulate the supervisory and restraint
measure so as to reinforce the supervisory management
during the procedure of recognition of the well-know
nature of the trademark.
Where a member of the state personnel responsible for
recognizing the well-known nature of trademarks abuses
power or practices fraud for personal considerations, or
reaps the unlawful profits or handles the case in
violation of the stipulations of well-known trademark
recognition, he shall be subject to administrative
disciplinary measures according to rules and
regulations; if the case is so serious as to constitute
a crime, he shall be prosecuted according to law for his
criminal liabilities.
Rule 17 These Stipulations shall enter into force on
June 1, 2003. The Interim Stipulations for Well-Known
Trademark Recognition and Management shall be abrogated
on the same date. |
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