| |
Implementing
Regulations under the Trademark Law of
the
People's Republic of China
Implementing Regulations under the Trademark Law of the
People's Republic of China
(approved by the State Council on 3 August 2002)
Chapter I General Provisions
Rule 1. These Implementing Regulations are drawn up in
accordance with the Trademark Law of the People¡¯s
Republic of China (hereafter referred to as the
¡°Trademark Law¡±).
Rule 2. The provisions made in these Implementing
Regulations concerning goods trademarks shall also apply
to service marks.
Rule 3. The use of a trademark referred to in both the
Trademark Law and these Implementing Regulations shall
include the use of the trademark on goods, packaging or
containers of the goods as well as trading documents, or
the use of the trademark in advertisement, exhibition,
or any other business activities.
Rule 4. As indicated in Article 7 of the Trademark Law,
the goods prescribed by the State that must use a
registered trademark refer to those goods stipulated by
relevant law and administrative regulations that must
use a registered mark.
Rule 5. In accordance with the provisions of the
Trademark Law and these Implementing Regulations, where
a dispute arises in the course of trademark registration
or trademark examination, any party claiming its
trademark as a well-known trademark may request the
China Trademark Office or the Trademark Review and
Adjudication Board to identify its trademark as a
well-known trademark to refuse the application for
registration of a trademark violating Article 13 of the
Trademark Law or cancel the registered trademark
violating Article 13 of the Trademark Law. When filing
such an application, the party concerned is required to
provide evidential documents to prove its trademark as a
well-known trademark.
At the request of the party concerned, the China
Trademark Office and the Trademark Review and
Adjudication Board should, in accordance with Article 14
of the Trademark Law, identify whether its trademark has
constituted a well-known trademark when ascertaining
relevant facts.
Rule 6. The geographical sign prescribed in Article 16
of the Trademark Law can be applied for registration as
certification trademarks or collective trademarks in
accordance with the Trademark Law and these Implementing
Regulations.
Where a geographical sign is registered as a
certification trademark, any natural person, juridical
person or any other organization whose goods are
qualified for using the geographical sign may request
for use of the certification trademark. The organization
that supervises the certification trademark should
permit such use. Where a geographical sign is registered
as a collective trademark, any natural person, juridical
person or any other organization whose goods are
qualified for use of the geographical sign may apply for
joining the group, association and other organization
that registers the geographical sign as a collective
trademark. The said society, association and other
organization should admit the said applicant to be its
member according to its rules. Those who have not
request for membership of the group, association and
other organization that has registered the geographical
sign as a collective trademark may also use the
geographical sign legitimately, and the group,
association and organization shall have no right to
forbid such use.
Rule 7. Where a trademark applicant entrusts a trademark
agency in filing any application for the registration of
a trademark or for any other matters concerning a
trademark, he shall submit a Power of Attorney. The
Power of Attorney shall indicate such contents and
competence as authorized. Where the applicant is a
foreigner or a foreign enterprise, the Power of Attorney
shall, in addition, indicate the nationality of the
applicant.
The notarization and legalization of the Power of
Attorney executed by a foreigner or a foreign enterprise
and the relevant certificates concerned shall be done
based on the principle of reciprocity.
¡°Foreigner¡± or ¡°Foreign Enterprise¡± indicated in
Article 18 of the Trademark law refers to the foreigner
or the foreign enterprise who has no regular residence
or business office in China.
Rule 8. Where any trademark registration is applied for,
or any other matters concerning a trademark are handled,
the Chinese written language is required.
Where a supporting document, certificate or evidence
required for submission according to the Trademark Law
or these Implementing Regulations is in a foreign
language, the Chinese translation of the same must also
be submitted. Where the applicant fails to submit the
translation, the required supporting document,
certificate or evidence shall be deemed to have not been
submitted.
Rule 9. Any person who is involved in the service of the
Trademark Office or the Trademark Review and
Adjudication Board shall, on his own initiative or upon
the request of the party concerned or any other
interested party, avoid being present in any of the
following situations:
(1) where he is a close relative of the party concerned
or the latter¡¯s agent;
(2) where he has such other kinds of relations with the
party concerned or the latter¡¯s agent that might
influence the impartial examination and hearing; and
(3) where he has an interest in the registration of the
applied trademark or in other matters concerning the
trademark application.
Rule 10. Except otherwise provided in these Implementing
Regulations, for any document or written material
submitted by the party concerned to the Trademark Office
or the Trademark Review and Adjudication Board, the date
of personal delivery shall be the date of filing. For
any document or written material sent by mail, the date
of the mailing indicated by the postmark shall be the
date of filing. For the absence of postmark or illegible
postmark, the date on which the Trademark Office or the
Trademark Review and Adjudication Board receives the
document shall be the date of filing, except where the
addresser can provide evidence to prove the actual
postmark.
Rule 11. Any document of the Trademark Office or the
Trademark Review and Adjudication Board may be served by
mail, by personal delivery or by other means. Where any
party concerned appoints a trademark agency, upon the
delivery of the document to the trademark agency the
document shall be deemed to have been served.
For any document sent by mail by the Trademark Office or
the Trademark Review and Adjudication Board, the date of
the arrival postmark shall be the date on which the
addressee receives the document. For the absence of
postmark or illegible postmark, the 16th day from the
date of mailing shall be deemed as the date on which the
addressee receives the document. For any document
delivered personally, the date of delivery is the date
on which the addressee receives the document. Where any
document cannot be sent by mail or cannot be delivered
personally, the document may be served by making an
announcement in the Trademark Gazette. At the expiration
of 30 days from the date of the announcement, the
document shall be deemed to have been served.
Rule 12. Trademark applications for international
registration shall be handled in accordance with
relevant international treaty of which China is a
member. Specific procedures shall be formulated by the
administrative department for industry and commerce
under the State Council.
Chapter II. Application for Trademark Registration
Rue 13. When applying for the registration of a
trademark, the applicant shall file one application with
respect to each class of goods according to the
Classification of Goods/Services as published. For each
filing, an ¡°Application for Trademark Registration¡±
shall be submitted to the Trademark Office, accompanied
by five copies of reproductions of the trademark (if
color is claimed, five copies of the color reproductions
of the trademark shall be attached thereto) and one copy
of the black and white design thereof.
The reproductions of a trademark must be clear and easy
to be pasted up, and shall be printed on smooth and
clear durable paper or substituted by photographs, the
length and breadth of which shall be less than 10 cm but
more than 5 cm each.
When applying for registration of three-dimensional
trademark, the applicant should declare it in the
application form and submit the reproduction of the
trademark, which could show the shape of the
three-dimension.
When applying for registration of a trademark in colors,
the applicant should declare it in the application form
and submit the relevant description on the color.
When applying for registration of Collective trademark
or Certification trademark, the applicant should declare
it in the application form and submit the certificate of
qualification of the applicant and the administrative
rules for using the trademark.
When a trademark is in foreign language or containing
foreign language, the applicant should point out its
meaning.
Rule 14 When applying for trademark registration, the
applicant should submit a copy of the valid certificate,
which can prove his identity. The applicant¡¯s name in
the trademark application form should be identical with
that of the submitted certificate.
Rule 15 The goods/service items shall be listed in the
application according to the Classification of
Goods/Services. If any goods/service items are not
included in the Classification of Goods/Services, a
description of the goods/service items shall be attached
to the application.
The forms relating to an application for trademark
registration or for any other matters concerning a
trademark shall be filled out with typewriter or in
printed form.
Rule 16 When applying for registration of a trademark as
multi-applicants, the applicants should designate a
representative among them. If there is not such a
designation, the first applicant as listed in the
application form shall be taken as the representative.
Rule 17. When the applicant¡¯s name, address or agency
changes, or some designated goods are to be deleted, the
applicant may file applications for recording these
changes with the Trademark Office.
When the applicant agrees to assign his application for
registering the trademark, he should file an application
for recording of the relevant assignment.
Rule 18. The date of filing of an application for
trademark registration shall be the date on which the
Trademark Office receives the application. If the formal
formalities for the application are completed and the
application form is filled out according to the relevant
provisions, the Trademark Office shall accept the
application and issue a ¡°Notification of Acceptance¡±
to the applicant. If the formal formalities are not
complete or the application form is not filled out
according to the relevant provisions, the application
shall not be accepted and the Trademark Office shall
notify the applicant in a formal document and illustrate
the reasons.
Where formalities are basically complete or the
application form is basically in conformity with the
relevant provisions, but there is still a need for the
applicant to make necessary supplements thereto or
corrections thereof, the Trademark Office shall notify
the applicant to make such supplements or corrections as
advised and require the latter to resubmit the
supplemented or corrected application to the Trademark
Office within thirty days from receipt of the
notification. If it is supplemented or corrected and
resubmitted to the Trademark Office within the time
limit, the filing date shall be retained; but if no such
supplements or corrections have been made at the
expiration of the specified period or they are made
beyond the time limit, the application will be taken as
automatically given up. The Trademark Office should
notify the applicant in a formal document.
Rule 19. Where two or more applicants respectively apply
for the registration of the identical or similar
trademarks in respect to the same or similar goods on
the same day, each of the applicants shall, as notified
by the Trademark Office, furnish it, within thirty days,
with the proof of the date of first use of the said
trademark. If the first use started on the same day, or
if neither of them has been in use, all the applicants
involved therein shall hold consultations among
themselves. If they have reached an agreement, they
shall submit their agreement in writing to the Trademark
Office within thirty days. If no agreement has been
reached through consultations or the applicants do not
agree to make consultation within thirty days, both or
all the applicants involved therein shall draw lots to
decide it. The Trademark Office shall refuse the other
party¡¯s application. If applicant does not come to
draw lots when receiving the notification of the
Trademark Office, his application will be taken as given
up automatically. The Trademark Office should notify the
applicant in formal documents who did not attend the
drawing of lots.
Rule 20. Where the priority right is claimed in
accordance with the prescription of Article 24 of the
Trademark Law, the applicant should present to the
Trademark Office a copy of the first filed trademark
application form, which should be certified by the
Trademark Administrative authority who accepted the
application used for priority right. The priority filing
date and filing number should be indicated in the
certified priority documents.
Where the priority right is claimed in accordance with
the prescription of Article 25 of the Trademark Law, the
certification documents submitted by the applicant
should be legalized by the relevant authority as
prescribed or accepted by the Administration for
Industry and Commerce of the State Council. But if the
products exhibited in the international exhibition were
held beyond the territory of China, the applicant is not
required to present said certification documents.
Chapter III Examination of Trademark Application for
Registration
Rule 21. The Trademark Office shall, according to the
Trademark Law and the prescription of this Implementing
Regulation, examine all the applications it has
accepted. Where a trademark is distinctive and in
conformity with the relevant provisions of the Trademark
Law with respect to all the designated goods or some
part of the designated goods, the Trademark Office
shall, after examination, preliminarily approve the
trademark and published it in the ¡°Trademark
Gazette¡±. Where a trademark application is not in
conformity with the relevant provisions of the Trademark
Law with respect to all the designated goods or part of
the designated goods, the Trademark Office shall refuse
the application or refuse part of the goods designated
by the application and send a ¡°Notification of
Refusal¡± to the applicant with explanations.
Where the application is preliminarily approved by the
Trademark Office with respect to part of the designated
goods, the applicant may, before the expiration of
opposition period, file an application for giving up the
application with respect to part of the designated
goods. Where the applicant gives up the application with
respect to part of the designated goods, the Trademark
Office should withdraw the former preliminary approval
and terminate the examination procedure, and publish the
fact in the Trademark Gazette.
Rule 22. Where an opposition is filed against a
trademark which has, after examination, been
preliminarily approved and so published by the Trademark
Office, the opponent shall send two copies of the same
¡°Application for Trademark Opposition¡± to the
Trademark Office. The ¡°Application for Trademark
Opposition¡± shall indicate both the issue number of
the ¡°Trademark Gazette¡± in which the opposed
trademark was published and the number of the
preliminarily approval. The ¡°Application for Trademark
Opposition¡± should have specific claims and facts, and
should be accompanied by the relevant evidence
materials.
The Trademark Office shall send one copy of the
¡°Application for Trademark Opposition¡± to the
opposed party for a response to be made within thirty
days from receipt of the notification. Where the opposed
party makes no response at the expiration of the
specified period, it will not affect the adjudication on
opposition to the Trademark Office.
Where the parties concerned need to submit the relevant
supplementary evidence materials after filing the
opposition or making a response to the opposition, they
should claim this point in the application form or in
the relevant response, and submit these supplementary
evidence materials within three months after filing the
application form or response letter. If these
supplementary evidence materials were submitted beyond
the prescribed period, they will be taken as that the
parties gve up the right of submitting the supplementary
documents.
Rule 23. The opposition, which is adjudicated as being
tenable, as indicated in paragraph 2 of Article 34 of
the Trademark Law, includes those which are tenable in
part of the designated goods. Where an opposition is
tenable with respect to part of the designated goods,
the trademark application with respect to the part of
the designated goods shall not be approved for
registration.
If an opposed trademark has, prior to the entry into
force of the adjudication on the opposition, been
announced as a registered trademark in the ¡°Trademark
Gazette¡±, the announcement thereof shall be withdrawn
and the opposed trademark, which has been approved for
registration through the opposition procedure, will be
published in the ¡°Trademark Gazette¡± once again.
Where a trademark, which has been approved for
registration through the opposition procedure, shall,
from the expiration date of the opposition period to the
entry of force of the adjudication on the opposition,
have no tracing force in relation to the other party¡¯s
use of the same or similar trademark with respect to the
same or similar products. But, if the bad faith of the
party who uses the trademark has caused damages to the
trademark registrant, a claim shall be made for the
compensation therefor.
Where a trademark, which has been approved for
registration through the opposition procedure, against
which the expiration period for filing an application
for review shall begin from the publication date of the
adjudication on the trademark opposition.
Chapter IV Modification, Assignment and Renewal of a
Registered Trademark
Rule 24. When applying for modification of the name,
address or other matters concerning a registered
trademark, the registrant shall submit an ¡°Application
for Modification of a Registered Trademark¡± to the
Trademark Office. If the application is approved, the
Trademark Office shall issue a relevant certificate to
the trademark registrant and publish the same in the
¡°Trademark Gazette¡±. If the application is not
approved, the Trademark Office shall notify the
applicant of the decision and the reason in written
form.
When applying for modification of his name, the
trademark registrant shall furnish the certification
document issued by the competent authority in charge of
the name change. Said certification document can be
furnished within 30 days from the application date for
name change. Where the certification document has not
been furnished at the expiration of the prescribed
period, the application for name change shall be deemed
to have been abandoned, and the Trademark Office shall
notify the applicant in written form.
When applying for modification of his name and address,
the registrant shall do the same modification with
respect to all his registered trademarks. Where the
registrant fails to do so, the application for name
change shall be deemed to have been abandoned, and the
Trademark Office shall notify the applicant in written
form.
Rule 25. When applying for the assignment of a
registered trademark, both the assignor and the assignee
shall submit an ¡°Application for Assignment of
Registered Trademark¡± to the Trademark Office. The
assignee shall complete the formalities required for the
assignment of a registered trademark. Where the
assignment of a registered trademark is approved, the
Trademark Office shall issue a certificate to the
assignee and publish the assignment in the ¡°Trademark
Gazette¡±.
When applying for the assignment of a registered
trademark, the registrant shall, at the same time, do
the same assignment with respect to all his other
registered trademarks that are identical with or similar
to the said registered trademark with respect to the
same or similar goods. Where the registrant fails to do
so, the Trademark Office shall require him to do as
required within a prescribed period. Where the
registrant fails to fulfill said requirement, he shall
be deemed to have abandoned the application for the
assignment of the registered trademark, and the
Trademark Office shall notify the applicant of the same
in written form.
Where an application for the assignment of a registered
trademark may mislead the public or cause confusion or
exert any other unhealthy influences, the Trademark
Office shall grant no approval thereof and shall notify
the application of the reason in written form.
Rule 26. Where the exclusive right to use a registered
trademark is transferred due to the issue other than
trademark assignment, the party accepting the
transferred exclusive right shall submit relevant
certification document or legal document to the
Trademark Office and complete the required formalities
for the transfer of the registered trademark.
Where the exclusive right to use a registered trademark
is transferred, the owner of the exclusive right to use
the registered trademark shall, at the same time,
complete the required formalities for the transfer of
all his other registered trademarks that are identical
with or similar to the said registered trademark with
respect to the same or similar goods. Where the
registrant fails to do so, the Trademark Office shall
require him to do as required within a prescribed
period. Where the owner of the exclusive right to use
the registered trademark fails in fulfilling the said
requirement, he shall be deemed to have abandoned the
application for the transfer of the registered
trademark, and the Trademark Office shall notify the
applicant of the same in written form.
Rule 27. When it is necessary to renew a registered
trademark, the registrant shall submit an ¡°Application
for Renewal of Trademark Registration¡± to the
Trademark Office. When approving the application for
renewal of a registered trademark, the Trademark Office
shall issued a certificate and make a publication in the
¡°Trademark Gazette¡±.
The valid period of a renewed trademark registration
shall be calculated as from the next day to the date of
expiration of the previous period of validity of said
trademark.
Chapter V Review of Trademark
Rule 28. The Trademark Review and Adjudication Board
accepts the applications for trademark review filed in
accordance with the provisions in Article 32, Article
33, Article 41 and Article 49 of the Trademark Law. The
Trademark Review and Adjudication Board shall, on the
basis of facts, review trademarks according to law.
Rule 29. The dispute over a registered trademark
mentioned in Paragraph 3, Article 41 of the Trademark
Law refers to the situation that the registrant of a
prior-registered trademark believes that other
people¡¯s later-applied trademark is identical with or
similar to his registered trademark with respect to the
same or similar goods.
Rule 30. When applying for trademark review, the
applicant shall submit an application to the Trademark
Review and Adjudication Board and provide the same
number of duplicate copies of the application as the
number of opposing parties concerned. Where the
application for trademark review is based on a decision
or adjudication made by the Trademark Office, the
applicant shall submit, at the same time, a duplicate
copy of the decision or adjudication made by the
Trademark Office.
After receiving an application for trademark review, the
Trademark Review and Adjudication Board shall have a
formal examination of the application. Where the
application has satisfied the requirements for trademark
review, it shall be accepted. Otherwise, the Trademark
Review and Adjudication Board shall refuse the
application and notify the applicant of the reason in
written form. Where any supplementary document or
necessary correction is required for satisfying the
requirement, the Trademark Review and Adjudication Board
shall notify the applicant to furnish the same within 30
days from the receipt of the notification. Where the
application still cannot satisfy the filing requirement
after the supplementary document or necessary correction
is furnished, the Trademark Review and Adjudication
Board shall refuse the application and notify the
applicant of the reason in written form. Where the
supplementary document or correction has not been
furnished at the expiration of the prescribed period,
the application for trademark review shall be deemed to
have been withdrawn, and the Trademark Review and
Adjudication Board shall notify the applicant of the
same in written form.
When finding out that an accepted application for
trademark review cannot satisfy the requirement, the
Trademark Review and Adjudication Board shall refuse the
application and notify the applicant of the reason in
written form.
Rule 31. After accepting an application for trademark
review, the Trademark Review and Adjudication Board
shall deliver a copy of the accepted application to the
opposite party without delay and require the opposite
party to make a response within 30 days from the receipt
of the copy of the application. Where no response is
made by the opposite party at the expiration of the
prescribed period, the Trademark Review and Adjudication
Board shall review the application without being
influenced.
Rule 32. Where the party concerned deems it necessary to
furnish supplementary evidence after submitting the
application for trademark review or making a response,
he shall make a relevant statement in the application
for trademark review or in the response in advance and
furnish the supplementary evidence within three months
after the application for trademark review or the
response to the same is filed. Where the supplementary
evidence has not been submitted at the expiration of the
prescribed period, the party concerned shall be deemed
to have abandoned the chance to submit the supplementary
evidence.
Rule 33. The Trademark Review and Adjudication Board
may, at the request of the party concerned or for
practical need, decide to hold a public hearing and
review the application.
Where a decision is made to hold a public hearing and
review the application, the Trademark Review and
Adjudication Board shall, at least 15 days before the
public hearing and review, notify in writing the parties
concerned of the date, place of the public hearing and
the participating examiners. The party concerned shall
make a reply within the time limit as prescribed in the
notification.
Where the applicant fails in making a reply and
attending the public hearing, his application for
trademark review shall be deemed to have been withdrawn,
and the Trademark Review and Adjudication Board shall
notify the applicant in written form. Where the opposite
party fails in making a reply and attend the public
hearing, the Trademark Review and Adjudication shall
make a adjudication by default.
Rule 34. Where the applicant requests withdrawal of the
application for trademark review before a decision or
adjudication is made by the Trademark Review and
Adjudication Board, the application can be withdrawn
provided that a written explanation is submitted to the
Trademark Review and Adjudication Board. Along with the
withdrawal of the application for trademark review, the
procedure of hearing and review shall be terminated.
Rule 35. Where the applicant has withdrawn his
application for trademark review, he shall not be
allowed to resubmit an application for trademark review
for the same facts and arguments. Where the Trademark
Review and Adjudication Board has made a decision or
adjudication on the reviewed trademark, no one shall be
allowed to submit another application for review of the
trademark for the same facts and arguments.
Rule 36. Where a registered trademark has been cancelled
according to Article 41 of the Trademark Law, the
exclusive right to use it shall be deemed as having no
existence from the very beginning. Where a registered
trademark has been cancelled according to a decision or
adjudication, there shall be no tracing force in any
such judgement or adjudication on any trademark
infringement case as made and enforced by the
administrative authority for industry and commerce and
in any such trademark assignment or trademark license
contract as performed prior to the said cancellation.
But, if the bad faith of the trademark registration has
caused damages to any other party, a claim shall be made
for the compensation therefor.
Chapter VI Administration of the Use of Trademarks
Rule 37. Where a registered trademark is used, it shall
carry the indication of ¡°×¢²áÉ̱ꡱ (Registered
Trademark) or the registration signs on the designated
goods, the packages or descriptions of or any other
attachments to the goods.
The registration signs include ×¢ and ® . In
practical use, the registered sign shall be marked on
the right upper corner or right lower corner of the
trademark.
Rule 38. Where a ¡°Certificate of Trademark
Registration¡± is lost or damaged, it is necessary to
apply for the reissuance before the Trademark Office
thereof. Where a ¡°Certificate for Trademark
Registration¡± is lost, the owner shall declare the
loss thereof in the ¡°Trademark Gazette¡±. Where a
¡°Certificate for Trademark Registration¡± is damaged,
it shall be sent back to the Trademark Office when an
application is filed for reissuance of the same.
Where any party has committed any act in forging or
altering a ¡°Certificate of Trademark Registration¡±,
he shall be prosecuted for his criminal liabilities in
accordance with the provisions on the crime of forging,
altering credentials issued by the State authority or
other crimes in the Criminal Law of the People¡¯s
Republic of China.
Rule 39. Where any party has committed any of the such
acts as referred to in Article 44 (1), (2) and (3) of
the Trademark Law, the administrative authority for
industry and commerce shall order the trademark
registrant to rectify the situation within a specified
period. If the registrant refuses to make said
rectification, the administrative authority for industry
and commerce at the registrant¡¯s location shall submit
the case to the Trademark Office for the cancellation of
the registered trademark.
Where any party has committed the act referred to in
Article 44 (4) of the Trademark Law, any person may
apply to the Trademark Office for the cancellation of
the registered trademark in question and state the facts
related thereto. The Trademark Office shall notify the
trademark registrant and require the latter to furnish,
within two months from receipt of the said notification,
proof of the prior use of the trademark before the
application for cancellation is filed or otherwise fair
reasons for non-use thereof. If no proof of use has been
furnished at the expiration of the prescribed period or
the furnished proof is invalid, the Trademark Office
shall cancel the registered trademark.
The proof mentioned in the proceeding paragraph shall
include proving the trademark registrant¡¯s use of the
registered trademark and the evidence proving the
trademark registrant¡¯s authorizing other persons to
use his registered trademark.
Rule 40. Where any trademark is cancelled by the
Trademark Office according to Article 44 and Article 45
of the Trademark Law, the Trademark Office shall publish
the same in the Trademark Gazette. The exclusive right
to use the registered trademark shall cease on the day
when the decision to cancel is made by the Trademark
Office.
Rule 41. Where the grounds for cancellation of a
registered trademark in the decision made by the
Trademark Office or the adjudication made by the
Trademark Review and Adjudication Board involve only
some of the designated goods, such registration of the
trademark with respect to the involved goods shall be
cancelled.
Rule 42. The amount of fine imposed according to Article
45 and Article 48 of the Trademark Law shall not exceed
20% of the illegal business volume or two times the
profit earned in the infringement.
The amount of fine imposed according to Article 47 of
the Trademark Law shall not exceed 10% of the illegal
business volume.
Rule 43. When any other person is authorized to use a
registered trademark, the trademark registrant shall,
within three months from the conclusion of the trademark
license contract, submit a copy of the contract to the
Trademark Office for record.
Rule 44. Where any party uses a trademark in violation
of the provisions of Paragraph 2, Article 40 of the
Trademark Law, the administrative authority for industry
and commerce shall order him to rectify the situation
within a specified period. If the said party has not
rectified the situation at the expiration of the
specified period, the administrative authority for
industry and commerce shall seize the representations of
the trademark. If the representations cannot be
separated from the goods, both the representations and
the goods shall be seized and destroyed.
Rule 45. Where any party uses a trademark in violation
of the provisions of Article 13 of the Trademark Law,
the party concerned may request the administrative
authority for industry and commerce to forbid such use.
When submitting such an application, the applicant shall
furnish evidence to prove its trademark as a well-known
trademark. Where the said trademark is identified as a
well-known trademark by the Trademark Office according
to the provisions in Article 14 of the Trademark Law,
the administrative authority for industry and commerce
shall order the infringing party to stop the use of the
well-known trademark which is in violation of the
provisions of Article 13 of the Trademark Law, seize and
destroy the representations of the well-known trademark.
If the representations cannot be separated from the
goods, both the representations and the goods shall be
seized and destroyed.
Rule 46. Where a trademark registrant applies for the
removal of his registered trademark or the registration
of the trademark with respect to some goods from the
Trademark Gazette, he shall submit an ¡°Application for
Trademark Removal¡± to the Trademark Office and return
the original certificate of trademark registration.
Where a trademark registrant applies for the removal of
his registered trademark or the registration of the
trademark with respect to some goods from the Trademark
Gazette, the exclusive right to use the registered
trademark or to use the registered trademark with
respect to some designated goods shall cease on the day
when the Trademark Office receives the application for
removal of the trademark.
Rule 47. Where a trademark registrant has passed away or
terminated and the formalities for transfer of the
registered trademark have not been completed at the
expiration of 12 months from the date of death or
termination of the trademark registrant, any person may
apply with the Trademark Office for removal of the
registered trademark. When filing an application for
removal of a registered trademark, the applicant shall
furnish evidence to prove the death or termination of
the trademark registrant.
Where a registered trademark is removed from the
Trademark Gazette due to the death or termination of the
trademark registrant, the exclusive right to use this
registered trademark shall cease from the date of death
or termination of the trademark registrant.
Rule 48. Where a registered trademark has been cancelled
or removed from the Trademark Gazette in accordance with
the provisions of Article 46 and Article 47 of the
Trademark Law, the original certificate of trademark
registration shall be abolished. Where a registration of
a trademark with respect to some designated goods is
cancelled, or the trademark registrant applies for
removal of the registration of his trademark with
respect to some designated goods, the Trademark Office
shall add remarks on the original certification of
trademark registration before returning the same to the
registrant, or reissue a certificate of trademark
registration and publish the same in the Trademark
Gazette.
Chapter Seven:
Rule 49 The registrant has not right to prohibit others
from using the following parts in its registered
trademark: the generic names or designs of the goods;
those having direct reference to the quality, main raw
materials, function, use, weight, quantity or other
features of the goods; geographical names.
Rule 50 Any of the following acts shall constitute an
infringement of the exclusive right to use a registered
trademark as referred to in Article 52(5) of the
Trademark Law:
1) to use any word or device that is identical with or
similar to the registered trademark of another person,
with respect to the same or similar goods, as the
designation or decoration of the goods, which is so
sufficient as to mislead the public; and
2) to provide any person intentionally with such
facilities as storage, transportation, post service and
concealment in his infringing the exclusive right of
another person to use a registered trademark.
Rule 51 Where the exclusive right to use a registered
trademark has been infringed, any person may lodge a
complaint with or report the case of infringement to the
administrative authority for industry and commerce.
Rule 52 The fine for the infringement of the exclusive
right to use a registered trademark will not exceed
three times of the amount of his illegal business. If
such amount of illegal business cannot be counted, the
fine will not exceed RMB 100, 000.
Rule 53 The trademark registrant may apply to the trade
name recording authority to cancel such a trade name,
when he believes that other person has recorded his
well-known trademark as its trade name and will cheat or
cause confusion among the consumers. The trade name
recording authority should handle the case according to
Trade Name Recording Regulations.
Chapter Eight
Rule 54 Where a service mark which has never been used
since before July 1, 1993 is identical with or similar
to any registered service mark of another party with
respect to the same or similar services, it may continue
to be used, excluding the ones which have not been used
for three consecutive years since July 1, 1993.
Rule 55 The regulations concerning the management of
trademark agencies shall be prescribed by the State
Council.
Rule 56 The Classification of Goods and Services for the
Purposes of the Registration of Trademarks shall be
prescribed and published by the State Administration for
Industry and Commerce.
The forms of the application for a trademark
registration or for any other matters concerning a
trademark shall be prescribed and published by the State
Administration for Industry and Commerce.
The adjudication standard of the Trademark Review and
Adjudication Board shall be prescribed and published by
the State Administration for Industry and Commerce.
Rule 57 The Trademark Office shall establish the
Trademark Registration Book, recording the registered
trademarks and related information.
The Trademark Office shall edit and publish the
Trademark Gazette, circulating the trademarks and
related information.
Rule 58 Any application for a trademark registration and
for any other matters concerning a trademark shall be
subject to payment of the fees as prescribed. The
schedule of fees shall be prescribed and published by
the State Administration for Industry and Commerce.
Rule 59 This law shall enter into force on September 15,
2002. The Implementing Regulations under the Trademark
Law of the People¡¯s Republic of China, which was
published on March 10, 1983 by the State Council and was
revised on January 3, 1988 for the first time and July
15, 1993 for the second time by the State Council, shall
be abrogated on the same time. |
|
