(Adopted on August 23, 1982 by the 24th Meeting of the Standing Committee of the Fifth National People's Congress. Amended for the first time by the Decision on Amending the Trademarks Law of the People's Republic of China adopted on February 22, 1993 by the 30th Meeting of the Standing Committee of the Seventh National People's Congress. Amended for the second time by the Decision on Amending the Trademarks Law of the People's Republic of China adopted on October 27, 2001 by the 24th Meeting of the Standing Committee of the Ninth National People's Congress)
Contents
Chapter I General Provisions
Chapter II Application for the Registration of Trademarks
Chapter III Examination and Approval for the Registration of Trademarks
Chapter IV Renewal, Assignment and Licensing of Registered Trademarks
Chapter V Judgement for Registered Trademark Disputes
Chapter VI Administration of the Use of Trademarks
Chapter VII Protection of the Exclusive Right to the Use of Registered Trademarks
Chapter VIII Supplementary Provisions
Chapter I General Provisions
Article 1
For the purposes of strengthening the administration of trademarks, protecting the exclusive right to the use of trademarks, pressing producers and sellers to guarantee the quality of goods and services, maintaining the repute of trademarks, safeguarding the interests of consumers, producers and sellers and promoting the development of the socialist market economy, this Law is hereby formulated.
Article 2
The trademark office under the industry and commerce administration department of the State Council shall take charge of the work of registration and administration of trademarks throughout the country.
The industry and commerce administration department of the State Council shall set up the trademark appraisal board to be responsible for handling trademark disputes.
Article 3
Trademarks registered upon approval by the trademark office shall be defined as the registered trademarks, including trademarks, service marks, collective marks and certification marks. Registered proprietors of trademarks shall enjoy the exclusive right to the use of trademarks and are protected by law.
In this Law, collective mark means a mark registered in the name of a society, association or other organization for use in commercial activities by its members and for indication of the membership of users.
In this Law, certification mark means a mark controlled by an organization with the ability of supervision over a particular goods or service and applied to the goods or service by the unit or individual other than the said organization, in order to certify the origin, material, mode of manufacture, quality or other particular features of the goods or service.
The industry and commerce administration department of the State Council shall formulate the special provisions on the registration and administration of collective marks and certification marks.
Article 4
Natural persons, legal persons or other organizations, if desiring to acquire the exclusive right to the use of trademarks, shall apply to the trademark office for the registration of trade marks in respect of the goods they produce, manufacture, process, select or sell.
Natural persons, legal persons or other organizations, if desiring to acquire the exclusive right to the use of trademarks, shall apply to the trademark office for the registration of service marks in respect of the services they render.
The provisions of this Law on trademarks shall apply to service marks.
Article 5
Two or more natural persons, legal persons or other organizations may jointly apply to the trademark office for the registration of an identical trademark and jointly enjoy and exercise the exclusive right to the use of the said trademark.
Article 6
If the goods must bear registered trademarks as required by the state, the registration of trademarks must be applied; without the approved registration, any goods may not be sold on the market.
Article 7
Users of trademarks shall be liable for the quality of the goods to which their trademarks were applied. Industry and commerce administration departments at all levels shall, by virtue of the administration of trademarks, repress the acts of deceiving consumers.
Article 8
Any visible signs capable of distinguishing the goods of a natural person, legal person or other organization from those of others, including words, graphs, letters, numerals, three-dimension signs and combination of colors as well as combination of foregoing elements, may be used as trademarks in applying for registration.
Article 9
For the purpose of applying for registration, the trademark shall be of a distinctive character and easy to distinguish and may not infringe any legitimate rights of others.
Registered proprietors of trademarks are entitled to apply the "registered trademark" or registered sign.
Article 10
Any of the following signs may not be used as a trademark:
1. A sign which is identical with, or similar to, the national name, national flag, national emblem, military flag or medal of the People's Republic of China, or is identical with the name of the particular site where a central or state organ is located or the name or shape of a building with symbolic significance;
2. A sign which is identical with, or similar to, the national name, national flag, national emblem or military flag of a foreign country, unless the consent of the foreign government to its use has been given;
3. A sign which is identical with, or similar to, the name, flag or emblem of an inter-governmental international organization, unless the consent of the said organization to its use has been given or there exists no likelihood of confusion on the part of the public;
4. A sign which is identical with, or similar to, the official symbol or inspection seal for showing control or guarantee, unless the authorization to its use has be given;
5. A sign which is identical with, or similar to, the name or symbol of the Red Cross or the Red Crescent;
6. A sign which is of a nature of nationality discrimination;
7. A sign which is of a nature of exaggerated publicity and fraudulence; or
8. A sign which infringes the socialist morality or practice or of other harmful effects.
Any of the geographical names of administrative areas at or above the county level or of the famous geographical names of foreign countries may not be used as a trademark, unless the name has other meanings or constitutes a part of a collective mark or certification mark. Trademarks containing the geographical name, if already registered, shall continue to be valid.
Article 11
Any of the following signs may not be registered as a trademark:
1. A sign which consists exclusively of the general name, shape or model of the goods;
2. A sign which consists exclusively of a direct indication which serves to designate the quality, key material, function, intended purpose, weight, quantity or other characteristics of the goods; or
3. A sign which is devoid of any distinctive character.
The sign listed in the paragraph above may be registered as a trademark if it has acquired a distinctive character following the use and is easy to distinguish.
Article 12
If a three-dimension sign is applied for the registration of a trademark, the shape which results from the nature of the goods themselves, the shape of goods which is necessary to obtain a technical result or the shape which gives substantial value to the goods, may not be registered.
Article 13
If a trademark for which the registration is applied for the identical or similar goods is a reproduction, imitation or translation of the well-known trademark of another which has not been registered in China, thus being liable to create confusion to the public, the registration of it shall be refused and the use of it shall be prohibited.
If a trademark for which the registration is applied for the distinct or unlike goods is a reproduction, imitation or translation of the well-known trademark of another which has been registered in China and creates confusion to the public, thus causing a likelihood of infringement on the interests of the registered proprietor of the said well-known trademark, the registration of it shall be refused and the use of it shall be prohibited.
Article 14
In determining a well-known trademark, the following factors shall be considered:
1. Degree of knowledge of the said trademark by members of the public concerned;
2. Length of the use of the said trademark;
3. Length, degree and geographical areas of any publicity of the said trademark;
4. Record for protection of the said trademark as the well-known trademark; and
5. Other factors.
Article 15
If the trademark of a person for whom the agent or representative acts is, without authorization, applied by the agent or representative in his name for the registration, and the person for whom the agent or representative acts gives an opposition, the registration of it shall be refused and the use of it shall be prohibited.
Article 16
If a trademark contains a geographical sign for the goods the source of which is not the area the sign indicates, thus creating confusion to the public, the registration of it shall be refused and the use of it shall be prohibited. However, the registration already acquired in good faith shall continue to be valid.
Geographical sign mentioned in the paragraph above means a sign which presents that the goods are originated from a particular area and the specific quality, repute or other features are determined mainly by natural factors or human factors of the said area.
Article 17
The application filed by a foreign national or enterprise for the registration of a trademark in China shall be handled in accordance with the agreement signed by the state in which the applicant is a national and the People's Republic of China, the international convention to which both the state and China are members, or the principle of reciprocity.
Article 18
In applying for the registration of trademarks or dealing with other trademark-related matters in China, foreign nationals or enterprises shall employ the organizations qualifying for trademark agency approved by China to act on their behalf.
Chapter II Application for the Registration of Trademarks
Article 19
In applying for registration of trademarks, the class and designation of the goods to which trademarks are applied shall be filled out in accordance with the established classification of goods.
Article 20
The applicant for registration of an identical trademark for different classes of goods shall submit the application for registration in accordance with the classification of goods.
Article 21
If a registered trademark is necessary to be applied to other goods under the same class, a separate application for registration shall be submitted.
Article 22
If a registered trademark needs to change its sign, a new application for registration shall be submitted.
Article 23
If a registered trademark needs to change the name, address or other registered items of the registered proprietor, an application for change shall be submitted.
Article 24
The applicant for registration of a trademark who, within six months from the date on which the first application for registration of the trademark in a foreign state was submitted, submits an application for registration of the identical trademark for the identical goods in China, may enjoy the priority in accordance with the agreement signed by the said foreign state and China or the international convention to which both the foreign state and China are members or the principle of mutual recognition of priority.
The applicant who claims priority according to the paragraph above shall make a declaration in writing at the time when he submits the application for registration of the trademark and within three months, he shall submit the copy of the document for first application for registration of the trademark. The failure of making of the declaration in writing or of submission of the copy of the document for first application for registration of the trademark as scheduled shall be deemed as no priority is claimed.
Article 25
If a trademark was first applied to the goods exposed on the international exhibition sponsored or recognized by the Chinese Government, the applicant for registration of the said trademark shall enjoy priority within six months from the date on which the goods were exposed.
The applicant who claims priority according to the paragraph above shall make a declaration in writing at the time when he submits the application for registration of the trademark and within three months, he shall submit such documents as the name of the exhibition, evidence on the use of the trademark and length of display. The failure of making of the declaration in writing or of submission of the document as scheduled shall be deemed as no priority is claimed.
Article 26
Matters and documents for application for registration of trademarks shall be authentic, accuracy and complete.
Chapter III Examination and Approval for the Registration of Trademarks
Article 27
If a trademark for which the registration is applied conforms to the relevant provisions of this Law, it shall be examined preliminarily and advertised in public by the trademark office.
Article 28
If a trademark for which the registration is applied does not conform to the relevant provisions of this Law or is identical with, or similar to, the trademark of another already registered or examined preliminarily for the identical or similar goods, the application shall be denied by the trademark office and shall not be advertised in public.
Article 29
Where two or more applicants apply for registration of an identical or a similar trademark for the identical or similar goods, the trademark applied earlier shall be examined preliminarily and advertised in public. If their applications are submitted on the same day, the trademark applied earlier shall be examined preliminarily and advertised in public, other applications shall be denied and shall not be advertised in public.
Article 30
Any person may give his opposition to the trademark preliminarily examined within three months from the date of advertisement in public. If no opposition is given at the expiry of the period of advertisement in public, the registration shall be approved, the trademark registration certificate shall be issued and a public notice shall be made.
Article 31
The applicant for the registration of a trademark may not jeopardize the earlier rights of others and may not, by any illegal means, register a trademark used by another and of certain influence.
Article 32
If a trademark is denied and is not advertised in public, the trademark office shall notify the applicant in writing. The latter may apply to the trademark appraisal board for reconsideration within 15 days from the date of receiving the notice if he disagrees. The trademark appraisal board shall make the decision and notify the applicant in writing.
The party concerned who disagrees with the decision of the trademark appraisal board may bring an action before the people's court within 30 days from the date of receiving the notice.
Article 33
If an opposition to a trademark advertised in pubic after preliminary examination is given, the trademark office shall hear the person giving the opposition and the person to whom the opposition is given to state facts and reasons, and after investigation and verification, make a judgement. The party concerned who disagrees with it may apply to the trademark appraisal board for reconsideration within 15 days from the date of receiving the notice. The trademark appraisal board shall make a judgement and notify in writing the person giving the opposition and the person to whom the opposition is given.
The party concerned who disagrees with the judgement of the trademark appraisal board may bring an action before the people's court within 30 days following the date of receiving the notice. The people's court shall notify the opposite party to the procedure of trademark reconsideration to take part in the action as the third party.
Article 34
If the party concerned fails, within the statutory period of time, to apply for reconsideration of the judgement made by the trademark office or to bring an action before the people's court on the judgement made by the trademark appraisal board, the judgement shall become valid.
If the opposition is invalid upon judgement, registration shall be approved, the trademark registration certificate shall be issued and a public notice shall be made. If the opposite is valid upon judgement, registration shall be disapproved.
If the opposition is invalid upon judgement and registration is approved, the date on which the applicant for registration of the trademark obtains the exclusive right to the use of the trademark shall be the date of expiry of the period of three months after the advertisement in public after the preliminarily examination.
Article 35
Applications for the registration of trademarks and for reconsideration of trademarks shall be examined in time.
Article 36
The applicant for registration or registered proprietor of a trademark may request alteration if he finds that the document of application or the document of registration for the trademark has any obvious errors. The trademark office shall respond according to law within the scope of its power and notify the party concerned.
Alteration mentioned in the paragraph above shall not go against the substantial contents of the document of application or the document of registration for the trademark.
Chapter IV Renewal, Assignment and Licensing of Registered Trademarks
Article 37
The period of validity of a registered trademark shall be 10 years, running from the date on which its registration is approved.
Article 38
If the use of a registered trademark is necessary after the expiry of its period of validity, a renewal of registration shall be applied for within six months prior to the expiry of the period. If no application is filed as scheduled, a grace period of six months may be allowed. If no application is filed at the expiry of the grace period, the registered trademark shall be cancelled.
The period of validity for each renewal of registration shall be ten years.
After a renewal of registration is approved, a public notice shall be made.
Article 39
If a registered trademark is assigned, the assignor and assignee shall conclude an assignment agreement and jointly submit an application to the trademark office. The assignee shall guarantee the quality of the goods to which the registered trademark assigned is applied.
After the assignment of a registered trademark is approved, a public notice shall be made. The assignee shall enjoy the exclusive right to the use of the trademark from the date of public notice.
Article 40
The registered proprietor of a trademark may, by concluding a licensing contract for the use of the trademark, license others to use his registered trademark. The licensor shall supervise the quality of the goods of the licensee who uses his registered trademark. The licensee shall guarantee the quality of the goods to which the registered trademark is applied.
If the use of a registered trademark of another is licensed, the name of the licensee and the place in where the goods were produced must be clearly indicated on the goods to which the registered trademark is applied.
All licensing contracts for the use of trademarks shall be filed with the trademark office.
Chapter V Judgement for Registered Trademark Disputes
Article 41
If a trademark already registered is in violation of the provisions of Article 10, 11 or 12 of this Law or its registration was acquired in a deceiving manner or any other unethical manner, the trademark office shall revoke the said registered trademark, and other units or individuals may request the trademark appraisal board to judge the revocation of the said registered trademark.
If a trademark already registered is in violation of the provisions of Article 13, 15, 16 or 31 of this Law, the proprietor or interest person of the trademark may, within five years from the date of registration of the trademark, request the trademark appraisal board to judge the revocation of the said registered trademark. In case of the registration in bad faith, the proprietor of a well-known trademark shall not be restricted by the period of five years.
With the exception of the circumstances mentioned in two paragraphs above, any person who disputes a trademark already registered may, within five years from the date on which the registration of the said trademark was approved, request the trademark appraisal board for judgement.
After receipt of the request for judgement, the trademark appraisal board shall notify the parties concerned and demand them to give their defense within the specified period of time.
Article 42
If the opposition to a trademark was already given and judged prior to the approval of the registration, no request for judgement based on the same facts and reasons may be allowed.
Article 43
After making the judgement to uphold or to revoke a registered trademark, the trademark appraisal board shall notify the parties concerned in writing.
The party concerned who disagrees with the judgement of the trademark appraisal board may bring an action before the people's court within 30 days from the date of receiving the notice. The people's court shall notify the opposite party to the procedure of trademark judgement to take part in the action as the third party.
Chapter VI Administration of the Use of Trademarks
Article 44
The trademark office shall order the user to make correction within the specified period of time or revoke his registered trademark if he commits one of the following acts in using the registered trademark:
1. Without approval, to alter his registered trademark;
2. Without approval, to alter the name, address or other items of the registered proprietor of the registered trademark;
3. Without approval, to assign his registered trademark; or
4. Failure to put to genuine use within a continuous period of three years.
Article 45
If the user of a registered trademark produces the rough or poor goods or sells the poor as the good, thus deceiving consumers, the industry and commerce administration department at any level shall order the user to make correction within the specified period of time and may issue a circular notice of criticism or impose a fine depending on the different circumstances, or the trademark office shall revoke his registered trademark.
Article 46
If a registered trademark is revoked or is not renewed at the expiry of the period of validity, the trademark office shall not approve any application for the registration of a trademark which is identical with, or similar to, the said registered trademark within one year from the date of revocation or cancellation.
Article 47
If a user violates the provisions of Article 6 of this Law, the local industry and commerce administration department shall order him to make application within the specified period of time for the registration and concurrently may impose a fine.
Article 48
The local industry and commerce administration department shall repress the use and order the user to make correction within the specified period of time and concurrently may issue a circular notice of criticism or impose a fine if he commits one of the following acts in using the unregistered trademark:
1. To pretend to be a registered trademark;
2. To violate the provisions of Article 10 of this Law; or
3. To produce the rough or poor goods or to sell the poor as the good so as to deceive consumers.
Article 49
The party concerned who disagrees with the decision made by the trademark office for the revocation of his registered trademark may apply to the trademark appraisal board for reconsideration within 15 days from the date of receipt of the notice. The latter shall make a decision and notify the applicant in writing.
The party concerned who disagrees with the decision of the trademark appraisal board may bring an action before the people's court within 30 days from the date of receipt of the notice.
Article 50
The party concerned who disagrees with the decision of fine made by the industry and commerce administration department according to the provisions of Article 45, 47 or 48 of this Law, may bring an action before the people's court within 15 days from the date of receipt of the notice. If the party concerned fails both to bring an action and to comply with the decision as scheduled, the industry and commerce administration department concerned may apply to the people's court for compulsory enforcement.
Chapter VII Protection of the Exclusive Right to the Use of Registered Trademarks
Article 51
The exclusive right to the use of a registered trademark shall be limited to the trademark of which registration is approved and to the goods for which the use of trademark is approved.
Article 52
Any of the following acts shall be deemed as the infringement of the exclusive right to the use of the registered trademark:
1. Without licensing by the registered proprietor of the trademark, to apply the trademark identical with or similar to a registered trademark to the identical or similar goods;
2. To sell the goods which infringe the exclusive right to the use of the registered trademark;
3. To forge or arbitrarily produce the signs of the registered trademark of another or to sell the signs of the registered trademark forged or arbitrarily produced;
4. Without consent of the registered proprietor of the trademark, to change his registered trademark and to put into the market the goods bearing the said trademark so changed; or
5. To cause other damages to the exclusive right to the use of the registered trademark of another.
Article 53
The dispute caused by any act of infringing the exclusive right to the use of a trademark listed in Article 52 of this Law shall be settled by the parties concerned through consultation. If the parties concerned are unwilling to consult or consultation is unsuccessful, the registered proprietor or interested person of the trademark may bring an action before the people's court or may also request the industry and commerce administration department for disposition. The industry and commerce administration department, if believing the existence of the act of infringement, shall order the immediate cease of the act of infringement, confiscate and destroy the infringing goods and equipment for producing the infringing goods and forging the signs of the registered trademark, and may impose a fine. The party concerned who disagrees with the decision of disposition may bring an action before the people's court within 15 days from the date of receipt of the notice of disposition according to the Administrative Procedure Law of the People's Republic of China. If the infringer fails both to bring an action and to comply with the decision as scheduled, the industry and commerce administration department may apply to the people's court for compulsory enforcement. The industry and commerce administration department may, upon the request of the party concerned, mediate the compensation for the infringement of the exclusive right to the use of the trademark. If the mediation is unsuccessful, the party concerned may bring an action before the people's court according to the Civil Procedure Law of the People's Republic of China.
Article 54
Industry and commerce administration departments are entitled to investigate into and dispose of the acts of infringing the exclusive right to the use of registered trademarks and shall transfer the cases suspected of being guilty to the judicial organs for disposition.
Article 55
In investigating into and disposing the suspected acts of infringing the exclusive right to the use of registered trademarks of others based on the evidences or reports, the industry and commerce administration departments at or above the county level may exercise the following powers:
1. To inquire about the infringement of the exclusive right to the use of registered trademarks of others from the parties concerned;
2. To consult and copy the contracts, invoices and books relevant to the infringement and other related materials of the parties concerned;
3. To check the sites in where the parties concerned are suspected of infringement of the exclusive right to the use of registered trademarks of others; and
4. To inspect the articles relevant to the infringement; and to seal or seize the articles for infringement of the exclusive right to the use of registered trademarks of others after they have obtained evidences.
When industry and commerce administration departments exercise the powers set out in the paragraph above, the parties concerned shall render assistance and cooperation and may not refuse or interfere.
Article 56
The amount of compensation for the infringement of the exclusive right to the use of a trademark shall be the income obtained by the infringer from the infringement within the period of infringement or the loss suffered by the infringee from the infringement within the period of infringement. The loss suffered by the infringee shall include his reasonable expenses for preventing the act of infringement.
If the income obtained by the infringer from the infringement or the loss suffered by the infringee from the infringement mentioned in the paragraph above is difficult to ascertain, the people's court shall judge the compensation not exceeding 500,000 yuan depending on the circumstances of the act of infringement.
A person selling goods without knowing infringement of the exclusive right to the use of the registered trademark who is capable of both to evidence the goods he obtains in a lawful manner and to provide the supplier shall not have the responsibility for compensation.
Article 57
The registered proprietor or interested person of a trademark who has evidence to establish that another person is committing or will commit an act of infringing his exclusive right, which could cause a remediless loss to his legitimate rights and interests if the act is not prevented immediately, may apply to the people's court for adopting such measures as ordering to stop the relevant act and property preservation before he brings an action.
When the people's court deals with the application mentioned in the paragraph above, the provisions of Articles 93-96 and Article 99 of the Civil Procedure Law of the People's Republic of China shall apply thereto.
Article 58
The registered proprietor or interested person of a trademark may apply to the people's court for evidence preservation before he brings the action for the purpose of preventing the act of infringement under the circumstances where the evidence could be lost or is difficult to obtain afterward.
The people's court must make a judgement within 48 hours after it accepts the application; the measures of preservation, if judged, shall be implemented without delay.
The people's court may order the applicant to provide a guarantee, if the latter fails to respond, the people's court shall deny his application.
If the applicant fails to bring the action within 15 days after the people's court has adopted the measures of preservation, the latter shall terminate the measures of preservation.
Article 59
A person who, without licensing by the registered proprietor of a trademark, applies a trademark identical with the registered trademark to the same class of goods, thus constituting a crime, shall be liable for the loss of the infringee, in addition, his criminal responsibility shall be demanded according to law.
A person who forges or arbitrarily produces a sign of the registered trademark of another or sells a sign of the registered trademark forged or arbitrarily produced, thus constituting a crime, shall be liable for the loss of the infringee, in addition, his criminal responsibility shall be demanded according to law.
A person who intentionally sells the goods to which a fake registered trademark is applied, thus constituting a crime, shall be liable for the loss of the infringee, in addition, his criminal responsibility shall be demanded according to law.
Article 60
Working personnel of state authorities responsible for the work of registration, administration and reconsideration of trademarks must implement laws impartially, perform duties honestly, be devoted to duties and render services in a civilized manner.
Members of the trade office and trademark appraisal board and working personnel of state authorities responsible for the work of registration, administration and reconsideration of trademarks may not engage in trademark agency services and production and operation activities of goods.
Article 61
Industry and commerce administration departments shall establish and improve the internal supervision system and carry out supervision and inspection over the implementation of laws, administrative regulations and disciplines by working personnel of state authorities responsible for the work of registration, administration and reconsideration of trademarks.
Article 62
Working personnel of state authorities responsible for the work of registration, administration and reconsideration of trademarks who neglect duties, abuse powers or practice favoritism or irregularities, thus illegally handling the registration, administration or reconsideration of trademarks, receiving money or articles from the parties concerned or seeking the illegal income, shall be demanded for criminal responsibility according to law if a crime is constituted; or if no crime is constituted, shall be given administrative sanctions according to law.
Chapter VIII Supplementary Provisions
Article 63
Applicants for the registration of trademarks and other matters in relation to trademarks shall pay fees. The concrete schedules therefor shall be formulated separately.
Article 64
This Law shall enter into force on March 1, 1983. The Regulation on the Administration of Trademarks promulgated on April 10, 1963 by the State Council shall be repealed on the same date; other provisions on the administration of trademarks, once in so far as they are inconsistent with this Law, shall become null and void from the same date.
Trademarks already registered prior to the entry into force of this Law shall continue to be valid.
