Chapter I
General
Provisions
Article 1. This Law is enacted for
the purposes of improving the administration of trademarks,
protecting the exclusive right to use a trademark, and of
encouraging producers to guarantee the quality of their
goods and maintain the reputation of their trademarks, with
a view to protecting consumers' interests and to promoting
the development of socialist commodity economy.
Article 2. The Trademark Office of the
administrative authority for industry and commerce under the
State Council shall be responsible for the registration and
administration of trademarks throughout the
country.
Article 3. A registered trademark
means a trademark that has been approved and registered by
the Trademark Office. The trademark registrant shall enjoy
an exclusive right to use the trademark, which shall be
protected by law.
Article 4. Any enterprise,
institution, or individual producer or trader, intending to
acquire the exclusive right to use a trademark for the goods
produced, manufactured, processed, selected or marketed by
it or him, shall file an application for the registration of
the goods trademark with the Trademark Office.
Any enterprise, institution, or individual
producer or trader, intending to acquire the exclusive right
to use a service mark for the services provided by it or
him, shall file an application for the registration of the
service mark with the Trademark Office.
The
provisions made in this Law concerning goods trademarks
shall apply to service marks.
Article 5. As
for any of such goods, as prescribed by the State, that must
bear a registered trademark, a trademark registration must
be applied for. Where no trademark registration has been
granted, such goods cannot be sold on the market.
Article 6. Any user of a trademark shall be
responsible for the quality of the goods in respect of which
the trademark is used. The administrative authorities for
industry and commerce at different levels shall, through the
administration of trademarks, exercise supervision over the
quality of the goods and shall stop any practice that
deceives consumers.
Article 7. Any word,
device or their combination that is used as a trademark
shall be so distinctive as to be distinguishable. Where a
registered trademark is used, it shall carry the indication
of "Registered Trademark" or a sign indicating
that it is registered.
Article 8. In
trademarks, the following words or devices shall not be
used:
(1) those identical with or similar to
the State name, national flag, national emblem, military
flag, or decorations, of the People's Republic of China;
(2) those identical with or similar to the
State names, national flags, national emblems or military
flags of foreign countries;
(3) those
identical with or similar to the flags, emblems or names, of
international intergovernmental organizations;
(4) those identical with or similar to the
symbols, or names, of the Red Cross or the Red Crescent;
(5) those relating to generic names or designs
of the goods in respect of which the trademark is used;
(6) those having direct reference to the
quality, main raw materials, function, use, weight, quantity
or other features of the goods in respect of which the
trademark is used;
(7) those having the nature
of discrimination against any nationality;
(8)
those having the nature of exaggeration and fraud in
advertising goods; and
(9) those detrimental
to socialist morals or customs, or having other unhealthy
influences.
The geographical names as the
administrative divisions at or above the county level and
the foreign geographical names well-known to the public
shall not be used as trademarks, but such geographical names
as have otherwise meanings shall be exclusive. Where a
trademark using any of the above-mentioned geographical
names has been approved and registered, it shall continue to
be valid.
Article 9. Any foreigner or foreign
enterprise intending to apply for the registration of a
trademark in China shall file an application in accordance
with any agreement concluded between the People's Republic
of China and the country to which the applicant belongs, or
according to the international treaty to which both
countries are parties, or on the basis of the principle of
reciprocity.
Article 10. Any foreigner or
foreign enterprise intending to apply for the registration
of a trademark or for any other matters concerning a
trademark in China shall entrust any of such organizations
as designated by the State to act as his or its agent.
Chapter II Application for Trademark
Registration
Article 11. An applicant for the
registration of a trademark shall, in a form, indicate, in
accordance with the prescribed classification of goods, the
class of the goods and the designation of the goods in
respect of which the trademark is to be used.
Article 12. Where any applicant intends to use
the same trademark for goods in different classes, an
application for registration shall be filed in respect of
each class of the prescribed classification of goods.
Article 13. Where a registered trademark is to
be used in respect of other goods of the same class, a new
application for registration shall be filed.
Article 14. Where any word or device of a
registered trademark is to be altered, a new registration
shall be applied for.
Article 15. Where, after
the registration of a trademark, the name, address or other
registered matters concerning the registrant change, an
application regarding the change shall be filed.
Chapter III Examination for and Approval of
Trademark Registration
Article 16. Where a
trademark the registration of which has been applied for is
in conformity with the relevant provisions of this Law, the
Trademark Office shall, after examination, preliminary
approve the trademark and publish.
Article 17.
Where a trademark the registration of which has been applied
for is not in conformity with the relevant provisions of
this 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, after examination,
preliminary approved, the Trademark Office shall refuse the
application and shall not publish the said trademark.
Article l8. Where two or more applicants apply
for the registration of identical or similar trademarks for
the same or similar goods, the preliminary approval, after
examination, and the publication shall be made for the
trademark which was first filed. Where applications are
filed on the same day,the preliminary approval, after
examination, and the publication shall be made for the
trademark which was the earliest used, and the applications
of the others shall be refused and their trademarks shall
not be published.
Article 19. Any person may,
within three months from the date of the publication, file
an opposition against the trademark that has, after
examination, been preliminary approved. If no opposition has
been filed, or if it is decided that the opposition is not
justified, the registration shall be approved, a certificate
of trademark registration shall be issued and the trademark
shall be published. If it is decided that the opposition is
justified, no registration shall be approved.
Article 20. The Trademark Review and
Adjudication Board, established under the administrative
authority for industry and commerce under the State Council,
shall be responsible for handling trademark disputes.
Article 21. Where the application for
registration of a trademark is refused and no publication of
the trademark is made, the Trademark Office shall notify the
applicant of the same in writing. Where the applicant is
dissatisfied, he may,within fifteen days from receipt of the
notification, apply for a review. The Trademark Review and
Adjudication Board shall make a final decision and notify
the applicant in writing.
Article 22. Where an
opposition is filed against the trademark that has, after
examination, been preliminary approved and published, the
Trademark Office shall hear both the opponent and applicant
state facts and grounds and shall, after investigation and
verification, make a decision. Where any party is
dissatisfied, he may, within fifteen days from receipt of
the notification, apply for a review, and the Trademark
Review and Adjudication Board shall make a final decision
and notify both the opponent and applicant in writing.
Chapter IV Renewal, Assignment and Licensing
of Registered Trademarks
Article 23. The period
of validity of a registered trademark shall be ten years,
counted from the date of approval of the registration.
Article 24. Where the registrant intends to
continue to use the registered trademark beyond the
expiration of the period of validity, an application for
renewal of the registration shall be made within six months
before the said expiration.Where no application therefor has
been filed within the said period, a grace period of six
months may be allowed. If no application has been filed at
the expiration of the grace period, the registered trademark
shall be canceled. The period of validity of each renewal of
registration shall be ten years. Any renewal of registration
shall be published after it has been approved.
Article 25. Where a registered trademark is
assigned, both the assignor and assignee shall jointly file
an application with the Trademark Office. The assignee shall
guarantee the quality of the goods in respect of which the
registered trademark is used.
The assignment
of a registered trademark shall be published after it has
been approved.
Article 26. Any trademark
registrant may, by signing a trademark license contract,
authorize other persons to use his registered trademark. The
licensor shall supervise the quality of the goods in respect
of which the licensee uses his registered trademark, and the
licensee shall guarantee the quality of the goods in respect
of which the registered trademark is used.
Where any party is authorized to use a
registered trademark of another person, the name of the
licensee and the origin of the goods must be indicated on
the goods that bear the registered trademark.
The trademark license contract shall be
submitted to the Trademark Office for record.
Chapter V Adjudication of Disputes Concerning
Registered Trademarks
Article 27. Where a
registered trademark stands in violation of the provisions
of this Law, or the registration of a trademark was acquired
by fraud or any other unfair means, the Trademark Office
shall cancel the registered trademark in question; and any
other organization or individual may request the Trademark
Review and Adjudication Board to make an adjudication to
cancel such a registered trademark.
In
addition to those cases as provided for in the preceding
paragraph, any person disputing a registered trademark may,
within one year from the date of approval of the trademark
registration, apply to the Trademark Review and Adjudication
Board for adjudication.
The Trademark Review
and Adjudication Board shall after receipt of the
application for adjudication, notify the interested parties
and request them to respond with arguments within a
specified period.
Article 28. Where a
trademark, before its being approved for registration, has
been the object of opposition and decision, no application
for adjudication may be filed based on the same facts and
grounds.
Article 29. After the Trademark
Review and Adjudication Board has made a final adjudication
either to maintain or to cancel a registered trademark, it
shall notify the interested parties of the same in writing.
Chapter VI Administration of the Use of
Trademarks
Article 30. Where any person who
uses a registered trademark has committed any of the
following, the Trademark Office shall order him to rectify
the situation within a specified period or even cancel the
registered trademark:
(1) Where any word,
device or their combination of a registered trademark is
altered unilaterally (that is, without the required
registration);
(2) where the name, address or
other registered matters concerning the registrant of a
registered trademark are changed unilaterally (that is,
without the required application);
(3) where
the registered trademark is assigned unilaterally (that is,
without the required approval); and
(4) where
the registered trademark has ceased to be used for three
consecutive years.
Article 31. Where a
registered trademark is used in respect of the goods that
have been roughly or poorly manufactured, or whose superior
quality has been replaced by inferior quality, so that
consumers are deceived, the administrative authorities for
industry and commerce at different levels shall, according
to the circumstances, order rectification of the situation
within a specified period, and may, in addition, circulate a
notice of criticism or impose a fine, and the Trademark
Office may even cancel the registered trademark.
Article 32. Where a registered trademark has
been canceled or has not been renewed at the expiration, the
Trademark Office shall, during one year from the date of the
cancellation or removal thereof, approve no application for
the registration of a trademark that is identical with or
similar to the said trademark.
Article 33.
Where any person violates the provisions of Article 5 of
this Law, the local administrative authority for industry
and commerce shall order him to file an application for the
registration within a specified period, and may, in
addition, impose a fine.
Article 34. Where any
person who uses an unregistered trademark has committed any
of the following, the local administrative authority for
industry and commerce shall stop the use of the trademarks,
order him to rectify the situation within a specified
period, and may, in addition, circulate a notice of
criticism or impose a fine:
(1) where the
trademark is falsely represented as registered;
(2) where any provision of Article 8 of this
Law is violated; and
(3) where the manufacture
is rough or poor, or where superior quality is replaced by
inferior quality, so that consumers are deceived.
Article 35. Any party dissatisfied with the
decision of the Trademark Office to cancel a registered
trademark may, within fifteen days from receipt of the
corresponding notice, apply for a review. The Trademark
Review and Adjudication Board shall make a final decision
and notify the applicant in writing.
Article
36. Any party dissatisfied with the decision of the
administrative authority for industry and commerce to impose
a fine under the provisions of Article 31, Article 33 or
Article 34 may, within fifteen days from receipt of the
corresponding notice, institute legal proceedings with the
people's court. If there have been instituted no legal
proceedings or made no performance of the decision at the
expiration of the said period, the administrative authority
for industry and commerce may request the people's court for
compulsory execution thereof.
Chapter VII
Protection of the Exclusive Rights to Use Registered
Trademarks
Article 37. The exclusive right to
use a registered trademark is limited to the trademark which
has been approved for registration and to the goods in
respect of which the use of the trademark has been approved.
Article 38. Any of the following acts shall be
an infringement of the exclusive right to use a registered
trademark:
(1) to use a trademark that is
identical with or similar to a registered trademark in
respect of the same or similar goods without the
authorization of the proprietor of the registered trademark;
(2) to sell goods that he knows bear a
counterfeited registered trademark;
(3) to
counterfeit, or to make, without authorization,
representations of a registered trademark of another person,
or to sell such representations of a registered trademark as
were counterfeited, or made without authorization;
(4) to cause, in other respects, prejudice to
the exclusive right of another person to use a registered
trademark.
Article 39. Where any party has
committed any of such acts to infringe the exclusive right
to use a registered trademark as provided for in Article 38
of this Law, the infringe may request the administrative
authority for industry and commerce at or above the county
level for actions. The administrative authority for industry
and commerce shall have the power to order the infringe to
immediately stop the infringing act and to compensate the
infringe for the damages suffered by the latter. The amount
of compensation shall be the profit that the infringe has
earned through the infringement during the period of the
infringement or the damages that the infringe has suffered
through the infringement during the period of the
infringement. Where the infringement of the exclusive right
to use a registered trademark is not serious enough to
constitute a crime, the administrative authority for
industry and commerce may impose a fine. Where any
interested party is dissatisfied with the decision of
handling made by the administrative authority for industry
and commerce to order him to stop the infringing act or to
impose a fine, he may, within fifteen days from receipt of
the notice, institute legal proceedings with the people's
court. If there have been instituted no legal proceedings or
made no performance of the decision (to impose a fine) at
the expiration of the said period, the administrative
authority for industry and commerce shall request the
people's court for compulsory execution thereof.
Where the exclusive right to use a registered
trademark has been infringed, the infringe may institute
legal proceedings directly with the people's court.
Article 40. Where any party passes off a
registered trademark of another person, and the case is so
serious as to constitute a crime, he shall be prosecuted,
according to law, for his criminal liabilities in addition
to his compensation for the damages suffered by the
infringe.
Where any party counterfeits, or
makes, without authorization, representations of a
registered trademark of another person, or sells such
representations of a registered trademarks were
counterfeited, or made without authorization, and the case
is so serious as to constitute a crime, he shall be
prosecuted, according to law, for his criminal liabilities
in addition to his compensation for the damages suffered by
the infringe.
Where any party sells goods that
he knows bear a counterfeited registered trademark, and the
case is so serious as to constitute a crime, he shall be
prosecuted, according to law, for his criminal liabilities
in addition to his compensation for the damages suffered by
the infringe.
Chapter VIII Supplementary
Provisions
Article 41. Any application for a
trademark registration and for other matters concerning a
trademark shall be subject to payment of the fee as
prescribed. The schedule of fees shall be prescribed
separately.
Article 42. The implementing
Regulations under this Law shall be drawn up by the
administrative authority for industry and commerce under the
State Council. They shall enter into force after they have
been submitted to and approved by the State Council.
Article 43. This Law shall enter into force on
March 1,1983. The "Regulations Governing
Trademarks" promulgated by the State Council on April
10, 1963 shall be abrogated on the same date, and any other
previsions concerning trademarks contrary to this Law shall
cease to be effective at the same time.
Trademarks registered before this Law enters
into force shall continue to be valid.
(In
case of discrepancy, the original version in Chinese shall prevail.)
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