Trademark Law of the People's Republic of China

中华人民共和国商标法

Sources:

• Chinese official text: CNIPA (国家知识产权局)
• English translation: IP Key EU — China Trademark Law Bilingual (EU-China IP Cooperation Project, implemented by EUIPO)

All information in this document is authentic in Chinese; the English text is a reference translation prepared under the EU-China IP Key cooperation project.

Adopted at the 24th Meeting of the Standing Committee of the 5th NPC on August 23, 1982; amended for the first time on February 22, 1993; amended for the second time on October 27, 2001; amended for the third time on August 30, 2013; amended for the fourth time in accordance with the Decision on Revising Eight Laws Including the Construction Law of the PRC adopted at the 10th Meeting of the Standing Committee of the 13th NPC on April 23, 2019.

Presidential Order No. 29.

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Table of Contents

• Chapter I — General Provisions (Arts. 1–21)
• Chapter II — Application for Trademark Registration (Arts. 22–27)
• Chapter III — Examination and Approval of Trademark Registration (Arts. 28–38)
• Chapter IV — Renewal, Alteration, Assignment and Licensing of Registered Trademarks (Arts. 39–43)
• Chapter V — Nullification of Registered Trademarks (Arts. 44–47)
• Chapter VI — Administration of the Use of Trademarks (Arts. 48–55)
• Chapter VII — Protection of the Exclusive Right to Use a Registered Trademark (Arts. 56–71)
• Chapter VIII — Supplementary Provisions (Arts. 72–73)

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Chapter I — General Provisions 总则

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 the reputation 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 State Council has established a Trademark Office to take charge of matters concerning trademark registration and administration throughout the country.

The administrative department for industry and commerce under the State Council has established a Trademark Review and Adjudication Board to be responsible for handling of trademark disputes.

Article 3

"Registered trademark" refers to trademarks that have been approved by and registered with the Trademark Office, including goods marks, service marks, collective marks and certification marks. The registrant of a trademark enjoys the exclusive 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 members to indicate their membership.

"Certification mark" in the Law refers to a mark which is controlled by an organization that exercises supervision over particular goods or services and which is used to indicate that third-party goods or services meet certain standards pertaining to place of origin, raw materials, mode of manufacture, quality, or other specific characteristics.

Special matters pertaining to the registration and administration of collective marks and certification marks shall be specified by the administrative department for industry and commerce under the State Council.

Article 4

Any natural person, legal person, or other organization that needs to acquire the exclusive right to use a trademark in production and operation activities shall file an application for trademark registration with the Trademark Office. The application for trademark registration that is malicious and not filed for the purpose of use 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 may jointly file an application for the registration of the same trademark with the Trademark Office, jointly enjoying and exercising the exclusive right to use the trademark.

Article 6

With respect to goods requiring the use of a registered trademark according to laws and administrative regulations, an application for trademark registration shall be filed; the goods may not be sold on the market before the registration thereof is approved.

Article 7

The application for registration and use of a trademark shall be based on the principle of good faith.

Users of a trademark shall be liable for the quality of the goods on which the trademark is used. The administrative department for industry and commerce at all levels shall, through the administration of trademarks, prohibit any practice that defrauds the consumers.

Article 8

Any sign that distinguishes the goods of a natural person, legal person, or other organization from those of others, including any word, device, letter, number, three-dimensional sign, color combination, sound and combination thereof, may be registered as a trademark.

Article 9

The trademark applied for registration shall have distinctive characteristics for identification, and shall not conflict with the prior legitimate rights of others.

The registrant of a trademark has the right to indicate the wording "Registered Trademark" 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 the People's Republic of China; those identical with the names and signs of central State organs, names of the specific locations thereof, or those identical with the names or device of landmark buildings;

2. those identical with or similar to the state names, national flags, national emblems or military flags of foreign countries, unless permitted by the government of the country;

3. those identical with or similar to the names, flags, or emblems of international inter-governmental organizations, unless permitted by the organization concerned or unlikely to mislead the public;

4. those identical with or similar to an official sign or inspection seal that indicates control and guarantee, unless authorized;

5. those identical with or similar to the name or sign of the "Red Cross" or "Red Crescent";

6. those having the nature of discrimination against any nationality;

7. those of a deceptive nature, likely to mislead the public as to the quality or other features or the place of origin of the goods;

8. those detrimental to socialist morals or customs, or having other unhealthy influences.

The names of administrative divisions at or above the county level or foreign geographical names known to the public shall not be used as trademarks. However, such geographical names having other meanings or being part of collective marks or certification marks shall be excepted; trademarks that have already been registered with the use of geographical names shall continue to be valid.

Article 11

The following signs shall not be registered as trademarks:

1. those comprising only the generic name, device, or model number of the goods in respect of which the trademark is used;

2. those having direct reference only to the quality, main raw materials, function, use, weight, quantity or other features of the goods in respect of which the trademark is used;

3. other signs lacking distinctive characteristics.

The signs described in the preceding paragraph may be registered as trademarks where they have acquired distinctive characteristics through use and are easy to identify.

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 shape inherent in the nature of the goods concerned or if the three-dimensional sign is only dictated by the need to achieve technical effects or the need to give the goods substantive value.

Article 13

Holders of trademarks known to the public may seek protection of well-known trademarks in accordance with the provisions hereof, when they believe that their rights have been infringed.

Where a trademark for which registration is applied for constitutes a reproduction, imitation or translation of a well-known trademark of another party that has not been registered in China and the trademark is used for identical or similar goods, and is liable to cause confusion, the application shall be refused and the use of such trademark shall be prohibited.

Where a trademark for which registration is applied for constitutes a reproduction, imitation or translation of a well-known trademark of another party that has been registered in China and the trademark is used for non-identical or dissimilar goods, and is misleading to the public so as to cause potential damage to the interests of the registrant of the well-known trademark, the application shall be refused and the use of such trademark shall be prohibited.

Article 14

Well-known trademarks shall be, as requested by the party involved, determined as those facts that are required to be determined when handling trademark-related cases. The following factors shall be considered in determining a well-known trademark:

1. the degree of awareness of the trademark among the relevant public;

2. the duration of use of the trademark;

3. the duration, degree and geographical scope of any publicity for the trademark;

4. the record of protection of the trademark as a well-known trademark;

5. other factors of the well-known trademark.

In the process of registration examination and during trademark dispute resolution, when the parties raise a request for the determination of a well-known trademark in accordance with the provisions of Article 13 herein, the Trademark Office may, depending on the needs of the examination and handling of the case, make a determination on the well-known trademark.

In the process of trademark dispute resolution, when the parties raise a request for the determination of a well-known trademark in accordance with the provisions of Article 13 herein, the Trademark Review and Adjudication Board may, depending on the needs of handling the case, make a determination on the well-known trademark.

In the process of hearing civil and administrative cases concerning trademarks, when the parties raise a request for the determination of a well-known trademark in accordance with the provisions of Article 13 herein, the People's Court may, depending on the needs of hearing the case, make a determination on the well-known trademark.

Producers and operators may not indicate "well-known trademark" on the goods, packaging or containers of goods, or in advertisements, exhibitions and other commercial activities.

Article 15

In the event that an agent or a representative seeks to register the client's trademark in its own name without the authorization of the client and faces objection from the client, such trademark shall not be registered and shall be prohibited from being used.

Where the trademark that is not registered in the names of the parties bound by a contractual or commercial relationship, of which the applicant knows the existence of such trademark, and objection is raised by the right holder of such trademark, it shall not be registered.

Article 16

In the event that a trademark containing a geographical indication of goods misleads the public because the goods do not come from the location as stated in the indication, such trademark shall not be registered and shall be prohibited from being used. However, if the registration has been obtained in good faith, such registration shall continue to be valid.

A geographical indication as mentioned in the preceding paragraph refers to a sign that represents the place of origin or a particular quality, reputation or other features of the goods that are primarily related to such natural or cultural factors of the area.

Article 17

A foreigner or foreign enterprise applying for trademark registration in China shall be subject to the agreement concluded between the country to which the applicant belongs and the People's Republic of China, or the international treaty to which both countries are parties, or on the basis of the principle of reciprocity.

Article 18

Matters concerning application for trademark registration or other issues in connection with trademarks may be handled independently, or a qualified trademark agency that has been established in accordance with law may be entrusted.

A foreigner or foreign enterprise applying for trademark registration or handling other trademark matters in China shall entrust a trademark agency legally established to act as the agent.

Article 19

The trademark agency shall apply for registered trademarks or handle any other trademark matters authorized by the clients based on the principle of integrity, honesty and credibility and in accordance with laws and administrative regulations; and the trademark agency shall assume confidentiality obligations for trade secrets of the client obtained during the agency.

The trademark agency shall clearly inform the client if the trademark applied for registration, is, by the agency's knowledge, falling under the circumstances prescribed in Articles 4, 15 and 32 hereof, and shall not accept the entrustment from such client.

A trademark agency shall not apply for the registration of any other trademark except for the trademark to be used for its agency business.

A trademark agency that has violated the law or administrative rules and regulations or handled entrustment matters based on false documents, shall be punished by the administrative department for industry and commerce; if the case constitutes a crime, criminal liability shall be pursued in accordance with the law.

Article 20

The industry organization of trademark agency shall strictly implement conditions on absorption of members in accordance with the provisions of its articles of association, and shall impose penalty on those members that have breached the self-discipline standards of the industry. Such absorption of or penalty on members by the industry organization shall be made available to the public on a timely basis.

Article 21

International registration of trademarks shall be subject to the system that has been established by conclusion or participation in relevant international treaty with specific measures subject to the provisions of the State Council.

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Chapter II — Application for Trademark Registration 商标注册的申请

Article 22

An applicant for trademark registration shall fill in the class and the designation of the goods on which the trademark is to be used in accordance with the prescribed classification of goods and file the registration application.

An applicant for trademark registration may file an application to register the same trademark in more than one class.

The trademark registration application and other relevant documents may be filed in hard copy or in electronic data message.

Article 23

If a registered trademark needs to secure the exclusive rights to use a registered trademark on goods beyond the verified range of use, a separate application for registration shall be filed.

Article 24

If a registered trademark needs to change its sign, a new registration application shall be filed.

Article 25

Where a trademark registrant files an application for registration of a trademark in China within six months of the date on which such trademark was first filed for registration in a foreign country, the registrant may be entitled to priority in accordance with the agreement signed between the People's Republic of China and such foreign country or in accordance with the international treaty to which they are both party, or on the basis of the principle of reciprocity.

Where a priority claim is made in reliance on the preceding paragraph, a written declaration shall be produced at the time of filing of the application for trademark registration, and a copy of the first filed application for trademark registration shall be furnished within three months; where no written declaration has been produced or such copy has not been furnished upon expiry of the three-month period, the priority claim shall not be applicable.

Article 26

In the event that an applicant uses a trademark for the first time on goods displayed at an international exhibition organized or recognized by the Chinese Government, the applicant may be entitled to priority provided that it files an application to register the trademark within six months from the date of the exhibition.

Where a priority claim is made in reliance on the preceding paragraph, a written declaration shall be produced at the time of filing of the application for trademark registration, and the supporting documents shall be furnished within three months, including the name of the exhibition, the proof that the trademark was used on the exhibited goods, and the exhibition date; where no written declaration has been produced or such proof has not been furnished upon expiry of the three-month period, the priority claim shall not be applicable.

Article 27

Matters and all the information submitted for trademark application shall be authentic, accurate, and complete.

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Chapter III — Examination and Approval of Trademark Registration 商标注册的审查和核准

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 and determination.

Article 29

During the process of examination, where the Trademark Office considers that the contents of the application for trademark registration are required to be explained or revised, it may ask the applicant to make explanation or correction; the failure of the applicant to make such explanation or correction will exert no effect on the decision made by the Trademark Office.

Article 30

Where a trademark applied for registration is in non-conformity with the relevant provisions of the Law, or it is identical with or similar to the trademark of another person that has, in respect of the same or similar goods, been registered or preliminarily approved, the Trademark Office shall refuse the application without announcement.

Article 31

Where two or more applicants apply for the registration of identical or similar trademarks for the same or similar goods, the preliminary approval and the announcement shall be made for the trademark that was first filed. Where applications are filed on the same day, the preliminary approval and the announcement shall be made for the trademark that is used the earliest, and the applications of the others shall be refused without announcement.

Article 32

The trademark application shall neither infringe upon another party's prior existing rights, nor be an improper means to register a trademark that is already in use by another party and enjoys substantial influence.

Article 33

Where a trademark to which preliminary approval has been granted is objected to for being in violation of the provisions of Articles 10, 11, and 12 of the Law, or where such trademark has been registered by improper means, any unit or individual may, within three months from the announcement date, submit an opposition to the Trademark Office.

Where no opposition is filed upon expiry of the publication period, the registration shall be approved, a certificate of trademark registration shall be issued, and an announcement shall be made.

Article 34

The Trademark Office shall notify the applicant in writing of the trademark that has been rejected and has not been published. The applicant who is dissatisfied with the decision may apply to the Trademark Review and Adjudication Board for a review within 15 days from receipt of the notice. The Trademark Review and Adjudication Board shall make a ruling within nine months from receipt of the application and notify the applicant 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 applicant who is dissatisfied with the decision of the Trademark Review and Adjudication Board may file a lawsuit before the People's Court within 30 days from receipt of the notice.

Article 35

In the event that any opposition is filed against a trademark which has been preliminarily approved and published, the Trademark Office shall hear the reasons and facts from the parties concerned and, upon investigation and verification, shall make a decision within 12 months from the publication period expires. Where the case is complicated, the time limit can be extended by six months with the approval of the administrative department for industry and commerce under the State Council.

Where the Trademark Office decides that the registration is to be approved, it shall issue the registration certificate and make a publication. The opposing party who is dissatisfied with the decision may apply to the Trademark Review and Adjudication Board for a review of the nullification of the registered trademark in accordance with Articles 44 and 45.

Where the Trademark Office decides that the registration is to be refused, the applicant who is dissatisfied with the decision may apply to the Trademark Review and Adjudication Board for a review within 15 days from the receipt of notice. The Trademark Review and Adjudication Board shall make a ruling within 12 months from receipt of the application for review and notify the applicant in writing. Where the case is complicated, the time limit can be extended by six months with the approval of the administrative department for industry and commerce under the State Council. The applicant who is dissatisfied with the ruling of the Trademark Review and Adjudication Board may file a lawsuit before the People's Court within 30 days from the receipt of notice.

Article 36

Upon expiry of the legal term, in the event that no party concerned applies for review against the rejection or refusal decision by the Trademark Office or files any lawsuit with respect to the ruling of review by the Trademark Review and Adjudication Board before the People's Court, such rejection, refusal decision or ruling of review shall come into force.

Where a trademark is approved after the preliminary examination and determination on registration, the date of the preliminary examination and determination shall be the date of registration and the registration shall take effect from the date of registration.

Article 37

The application for registration and review of trademarks shall be examined on a timely basis.

Article 38

When the trademark application applicant or the registrant finds obvious mistakes in the trademark application documents or registration documents, it may apply for correction. The Trademark Office shall make corrections within its power of authorities and notify the party concerned.

The correction of trademark application documents or registration documents mentioned above shall not involve the substantive content of the trademark application documents or registration documents.

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Chapter IV — Renewal, Alteration, Assignment and Licensing of Registered Trademarks 注册商标的续展、变更、转让和使用许可

Article 39

The period of validity of a registered trademark shall be ten years, starting from the day the registration is approved.

Article 40

Where the registrant intends to continue use of a registered trademark beyond the expiration of the period of validity, an application for renewal of the registration shall be filed within twelve months before the expiration of said period. Where no application has been filed during said period, a grace period of six months may be given. Each renewal of the registration shall be valid for a period of ten years, commencing on the next day following the expiration of the preceding period of validity of the trademark concerned. Where the registrant fails to file an application for renewal upon the expiry of the grace period, the registered trademark shall be cancelled.

The Trademark Office shall make an announcement with respect to the approved renewal of the registration.

Article 41

An application for alteration shall be filed if the name, address or the other registered matters of the registrant is required to be altered.

Where the registrant alters its name or address without having filed an application for alteration as required, the Trademark Office shall order rectification within a specified period; in the event of failure to make such rectification upon expiry of the specified period, the Trademark Office shall revoke the registered trademark.

Article 42

An assignment of a registered trademark shall be subject to an agreement concluded between the assignor and the assignee who shall jointly file an application with the Trademark Office. The assignee shall guarantee the quality of the goods on which such registered trademark is used.

In the event of the assignment of a registered trademark, the owner of the trademark shall assign any similar trademarks that have been registered for the same goods, or the identical or similar trademarks that have been registered for similar goods, at the same time.

The Trademark Office shall not approve any assignment that is likely to cause confusion or any other adverse impact and shall notify the applicant in writing with reasons thereof.

The assignment of a registered trademark that has been approved shall be published. The assignee shall enjoy the exclusive right to use the trademark from the publication date.

Article 43

The trademark registrant may, by concluding a trademark licensing contract, authorize other persons to use the registered trademark. The licensor shall supervise the quality of the goods on which the licensee uses the licensor's registered trademark, and the licensee shall guarantee the quality of the goods on which the registered trademark is used.

Where the registered trademark is authorized for use by others, the licensor shall report the trademark license to the Trademark Office for the record, and the Trademark Office shall make a publication. Failure to report the license shall not be set up against a bona fide third party.

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Chapter V — Nullification of Registered Trademarks 注册商标的无效宣告

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 may request the Trademark Review and Adjudication Board for a ruling to annul such a registered trademark.

The Trademark Office shall make a decision on annulment within the term prescribed and notify the party concerned in writing. The party concerned that is dissatisfied with the decision may, within 15 days from receipt of such notice, apply to the Trademark Review and Adjudication Board for a review. The Trademark Review and Adjudication Board shall make a ruling within nine months from receipt of the 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 that is dissatisfied with the ruling of the Trademark Review and Adjudication Board may file a lawsuit before the People's Court within 30 days from receipt of the notice.

Other units or individuals requesting the Trademark Review and Adjudication Board to annul a registered trademark shall be subject to the application with the Trademark Review and Adjudication Board, who shall make a ruling within nine months from receipt of the 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 that is dissatisfied with the ruling of the Trademark Review and Adjudication Board may file a lawsuit before the People's Court within 30 days from receipt of the notice.

Article 45

Where a registered trademark violates the provisions of Articles 13(2), 13(3), 15, 16(1), 30, 31 and 32 of the Law, the prior right holder or interested party may, within five years from the date of registration of the trademark, request the Trademark Review and Adjudication Board to annul such registered trademark. For malicious registration, the owner of a well-known trademark shall not be subject to the five-year time limit.

The Trademark Review and Adjudication Board shall make a ruling within 12 months from receipt of the application for annulment and notify the party concerned in writing. In case of prolonging such period for certain special situations, it may be prolonged for six months after the approval of the administrative department for industry and commerce under the State Council. The party concerned that is dissatisfied with the ruling may file a lawsuit before the People's Court within 30 days from receipt of the notice.

Article 46

Upon expiry of the legal term, in the event that no party concerned applies for review against the decision of nullification of the registered trademark by the Trademark Office or files any lawsuit with respect to maintaining or nullification of the registered trademark by the Trademark Review and Adjudication Board before the People's Court, the decision of the Trademark Office or the ruling of the Trademark Review and Adjudication Board shall come into force.

Article 47

The registered trademark deemed as invalid according to Articles 44 and 45 shall be announced by the Trademark Office and the exclusive right to use such registered trademark shall be deemed as non-existent from the beginning.

The decision or ruling on the annulment of a registered trademark shall have no retroactive effect on judgments and rulings on trademark infringement that have been enforced, on trademark transfer or licensing contracts that have been performed, and on decisions on handling of trademark infringement that have been executed; however, if the trademark registrant has acted in bad faith causing damage to another, compensation shall be made.

In case of non-refund of trademark infringement compensation, trademark transfer fees or trademark licensing royalties as provided for in the preceding paragraph, where such non-refund is obviously contrary to the principle of fairness, refund shall be made in full or in part.

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Chapter VI — Administration of the Use of Trademarks 商标使用的管理

Article 48

The use of trademarks herein refers to such activities as using trademarks on goods, packaging or containers of goods and in transaction documents, or using trademarks in advertising, exhibitions and other commercial events so as to identify the sources of goods.

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 a 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 CNY 50,000, 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 CNY 50,000, a fine up to CNY 10,000 may be imposed.

Article 52

If an 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 within a specified period, and may circulate a notice; in the event of illegal business revenue of over CNY 50,000, 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 CNY 50,000, a fine up to CNY 10,000 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 CNY 100,000.

Article 54

The party concerned that is dissatisfied with the decision of the Trademark Office to revoke or refuse to revoke the registered trademark may, within 15 days from 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 that is dissatisfied with the decision of the Trademark Review and Adjudication Board may file a lawsuit before the People's Court within 30 days from receipt of the 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 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.

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Chapter VII — Protection of the Exclusive Right to Use a Registered Trademark 注册商标专用权的保护

Article 56

The exclusive right to use a registered trademark shall be limited to trademarks 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 the exclusive right to use a registered trademark:

1. using a trademark that is identical with a registered trademark on the same goods without the licensing of the trademark registrant;

2. using a trademark that is similar to a registered trademark on the same goods, or using a trademark that is identical with or similar to a registered trademark on similar goods, which may be easily confusing, without the licensing of the trademark registrant;

3. selling goods that violate the exclusive right to use a registered trademark;

4. counterfeiting or arbitrarily forging others' registered trademark, or selling the counterfeited or arbitrarily forged trademarks;

5. altering the trademark registrant's registered trademark without authorization and selling goods bearing such altered trademark;

6. providing convenience for or helping others to infringe the exclusive right to use a registered trademark on purpose;

7. other conducts causing prejudice to others' exclusive right to use a registered trademark.

Article 58

Using characters of the registered or unregistered well-known trademarks of others in the name of an enterprise to mislead the public that constitutes unfair competition shall be subject to the Anti-Unfair Competition Law of the People's Republic of China.

Article 59

The exclusive right owner of a registered trademark may not prohibit others from rightful use of the generic names, models or designs of the goods, or direct reference to the quality, main raw materials, function, use, weight, quantity or other features of the goods, or geographical names as included in the registered trademark.

The exclusive right owner of a registered trademark of three-dimensional signs may not prohibit others from rightful use of the shapes generated from the nature of the goods in respect of which the trademark is used, or shapes of the goods to realize certain technical effects, or shapes to provide the goods with substantive values.

Where an identical or similar trademark with certain influence has been used, prior to the use by the trademark registrant, with respect to the same goods or similar goods by others before the trademark registrant's application for trademark registration, the exclusive right owner may not prohibit the user of the aforesaid trademark from continuous use of such trademark within the original scope but may request its user for addition of proper logos for distinction purpose.

Article 60

In the event of infringement of the registered trademark as specified in Article 57 hereof that leads to disputes, the parties concerned shall settle such disputes through negotiations; where no negotiation is prospective or fails, the trademark registrant or any interested party may file a lawsuit before the People's Court or request the administrative department for industry and commerce for handling.

Where the infringement is confirmed, the administrative department for industry and commerce shall order the infringer to cease such infringement, confiscate and destroy the infringing goods and tools used in producing such goods or forging logos of the registered trademark. In the event of illegal business revenue of over CNY 50,000, a fine up to five times of the revenue may be imposed; in the event of no illegal business revenue or illegal business revenue of less than CNY 50,000, a fine up to CNY 250,000 may be imposed; in the event of trademark infringement of more than two times within five years or other serious circumstances, a heavier punishment shall be given. Where a seller with no knowledge of its infringing goods can prove the legality of acquiring such goods and point out the provider, the administrative department for industry and commerce shall order the seller to cease selling such goods.

Where there is dispute concerning the amount of compensation for infringing the exclusive right to use the trademark, the party concerned may request the administrative department for industry and commerce for mediation or file a lawsuit before the People's Court pursuant to the Civil Procedure Law of the People's Republic of China. In case of absence of agreements or non-performance of mediation agreement upon effectiveness after the mediation by the administrative department for industry and commerce, any party concerned may file a lawsuit before the People's Court 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 to investigate any conduct that infringes the exclusive right to use a registered trademark. In the event that a crime is suspected to have been committed, the administrative department for industry and commerce shall promptly transfer the case to the judicial department to be dealt with in accordance with the law.

Article 62

The administrative department for industry and commerce at or above the county level may, based on the available evidence of illegal conduct or information supplied by a member of the public, exercise the following power in investigating activities suspected of infringing upon others' exclusive right to use a registered trademark:

1. question the parties concerned and investigate the circumstances in connection with the infringement of others' exclusive right to use a registered trademark;

2. look up and copy the contracts, invoices, books, and other materials pertaining to the trademark-infringing activities of the parties concerned;

3. conduct an on-site inspection of the premises where the party concerned is suspected of carrying out activities that have infringed upon others' exclusive right to use a registered trademark;

4. inspect the articles involved in trademark-infringing activities; articles that are proven to have infringed upon others' exclusive right to use a registered trademark may be sealed and taken into custody.

The parties concerned shall assist in and cooperate with the administrative department for industry and commerce when the latter exercises the powers provided for in the preceding paragraph in accordance with the law and shall not refuse or obstruct.

During the process of investigating and handling a trademark infringement case, where any dispute arises with respect to the trademark ownership or the right owner files a lawsuit regarding such infringement before the People's Court, the administrative department for industry and commerce may suspend the aforesaid process. As the cause for suspension is eliminated, the process shall be restored or closed.

Article 63

The amount of compensation for infringing the exclusive right to use the trademark shall be determined based on the right owner's actual losses due to infringement or the infringer's actual interests obtained due to the same if the actual losses are hard to determine, or may be determined based on multiples of the royalties of the registered trademark when both the losses and the infringer's actual interests obtained are hard to determine. For seriously malicious infringement, the amount of compensation may be between one time to five times the aforesaid amount determined in light of the foregoing rules. The amount of compensation shall include reasonable expenses of the right owner to prevent the infringement.

For the purpose of determining the amount of compensation, where the account books and information regarding the infringement are held by the infringer while the right owner has put to the proof as practically as possible, the People's Court may order the infringer to submit such account books and information; in case the infringer refuses to submit the account books and information or submits a false version thereof, the People's Court may determine the amount of compensation with reference to the right owner's claim and proof.

Where it is hard to determine the right owner's actual losses due to infringement, the infringer's actual interests obtained due to the same or the royalties of the registered trademark, the People's Court shall, based on the actual circumstance of infringement, bring in a verdict of amount up to CNY 5,000,000.

In hearing a case of trademark dispute, the People's Court may, at the request of the right owner, order to destroy the goods bearing counterfeit registered trademark, unless under special circumstances; order to destroy the materials and tools mainly used to manufacture the goods bearing counterfeit registered trademarks, without compensation; or, under special circumstances, order to prohibit the aforesaid materials and tools from entering any commercial channel without compensation.

Goods bearing counterfeit registered trademarks shall not be put into any commercial channel by merely having their counterfeit registered trademarks removed.

Article 64

Where the owner of the exclusive right to use a registered trademark claims for compensation and the alleged infringer raises a plea that such owner has never used the registered trademark in question, the People's Court may request such owner to provide proof of using the trademark over the past three years. In case such owner fails to provide the aforesaid proof or the proof of losses due to infringement, the alleged infringer shall bear no liability for compensation.

Where a seller selling goods who is ignorant of infringing others' registered trademark can prove the legality of acquiring such goods and point out the provider, such seller shall be exempted from liability for compensation.

Article 65

Where a trademark registrant or any interested party could prove that the infringement in process or to be conducted on the exclusive right to use the registered trademark will cause irreparable losses to their legal interests if not prevented in a timely manner, they may apply to the People's Court for taking such measures as ordering the infringer to cease relevant behaviors and property preservation before filing any lawsuit.

Article 66

In order to stop trademark-infringing activities, a trademark registrant or an interested party may, prior to filing a lawsuit, apply to the People's Court for evidence preservation when such evidence may be destroyed or lost or become unobtainable in the future.

Article 67

Any person who, without the permission of trademark registrants, uses a trademark identical with the registrant's trademark for the same goods, where the case constitutes a crime, shall be prosecuted according to the law for criminal liability, in addition to compensation of the losses suffered by the infringed.

Any person who forges or counterfeits others' registered trademark or sells registered trademarks that are forged or counterfeited shall, if the act constitutes a crime, be investigated for criminal responsibility according to the law in addition to compensation of the losses suffered by the infringed.

Any person who knowingly sells goods bearing counterfeit registered trademarks shall, if the act constitutes a crime, be investigated for criminal responsibility according to the law in addition to compensation of the losses suffered by the infringed.

Article 68

If a trademark agency has any one of the following conducts, the administrative department for industry and commerce shall order the agency to rectify the same within a specified time, give corresponding warning and impose a fine of more than CNY 10,000 up to CNY 100,000; and give warnings to management directly in charge and the other persons directly responsible and impose a fine of more than CNY 5,000 up to CNY 50,000; those who have committed crimes shall be held for criminal responsibility:

1. forging or altering legal documents, seals or signatures or using forged or altered legal documents, seals or signatures during the process of handling trademark-related matters;

2. soliciting agency business by slandering other trademark agencies or disturbing the trademark agency market order by other unjust means;

3. 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, administrative penalties such as warnings and fines shall be given depending on the circumstances; in the event of maliciously lodging a lawsuit regarding trademark, the People's Court shall impose penalties in accordance with the law.

Where a trademark agency has had conducts stipulated in the previous paragraph, it will be recorded by the administrative department for industry and commerce in the files of credits; in case of serious circumstances, the Trademark Office and the Trademark Review and Adjudication Board may cease accepting its agency business and make relevant announcement.

Where a trademark agency violates the principle of good faith and thus infringes the client's legal interests, such agency shall bear relevant civil liability according to law and be punished by the industry organization of trademark agency in accordance with the articles of association.

Article 69

State personnel engaging in trademark registration, administration, and review 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 Adjudication Board and other personnel engaging in trademark registration, administration, and review shall not be involved in trademark agency services, production, or the trading of goods.

Article 70

The administrative department for industry and commerce shall establish a comprehensive internal supervisory system to supervise and inspect the state personnel responsible for trademark registration, administration, and review in law and administrative regulation implementation and discipline observance.

Article 71

The state personnel engaging in trademark registration, administration, and review who neglect their duty, abuse their official power, commit fraud for personal considerations, handle trademark registration matters in violation of laws, accept money or properties from a party concerned or seek improper gains, shall be prosecuted for criminal liability if the case constitutes a crime. For the case that does not constitute a crime, the personnel involved shall be subject to sanctions.

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Chapter VIII — Supplementary Provisions 附则

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.