TRADEMARK LAW OF THE PEOPLE'S REPUBLIC
OF CHINA
(Adopted at the 24th Session of
the Standing Committee of the Fifth National People's Congress,
on August 23, 1982)
Chapter: /Article:
I 1
2 3 4
5 6 7
8 9 10
II 11
12 13 14
15
III 16
17 18 19
20 21 22
IV 23
24 25 26
V 27
28 29
VI 30
31 32 33
34 35 36
VII 37
38 39 40
VIII 41
42 43
Chapter I. General Provisions
Article 1. This Law is enacted for the purposes
of improving the administration of trademarks, of 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 consumer 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 administrative control
of trademarks throughout the country.
Article 3. Registered trademark means a trademark
which has been approved and registered by the Trademark Office.
The trademark registrant shall enjoy an exclusive right to use
the trademark, (which right 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 trademark with the Trademark Office.
Article 5. Where the State prescribes that certain
kinds of goods must bear a registered trademark, registration
of a trademark must be applied for in respect of such goods. Where
no trademark registration has been granted, such goods shall not
be sold in 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 all levels shall, through the administrative control of trademarks,
exercise supervision over the quality of the goods and shall stop
any practice that deceives consumers.
Article 7. Any word, design, or their combination,
used as a trademark, must be distinctive so that it be distinguishable.
Where a registered trademark is used, it should carry the indication
"Registered Trademark" or a sign indicating that it
is registered.
Article 8. In trademarks, the following words
or designs 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 deceit in advertising
goods;
(9) those detrimental to socialist morals or customs, or having
other unhealthy influences.
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 to
deal with other matters concerning a trademark in China, shall
entrust the organization designated by the State to act on his
or its behalf.
Chapter II. Application for Trademark Registration
Article 11. Any application 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 intended to be used.
Article 12. Where any applicant intends to use
the same trademark for goods in different classes, a separate
application for registration shall be filed in respect of each
class of the prescribed classification of goods.
Article 13. Where a registered trademark is intended
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 and/or design 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 the trademark for which registration
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 (it).
Article 17. Where the trademark for which registration
has been applied for is not in conformity with the relevant provisions
of this Law, or where it is identical with or similar to the trademark
of another person which, in respect of the same or similar goods,
has been registered or, after examination, preliminary approved,
the Trademark Office shall refuse the application and shall not
publish (the said trademark).
Article 18. 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 which, after examination, has been preliminary approved.
If no opposition is filed, or if it is decided that the opposition
is not justified, registration shall be approved, a trademark
registration certificate 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 in writing.
Where the applicant is dissatisfied, he may, within fifteen days
from the 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 which, after examination, has been preliminary approved
and published, the Trademark Office shall hear the opponent and
the applicant state facts and grounds and shall, after investigation
and verification, make a decision. Where any party is dissatisfied,
it may, within fifteen days from the receipt of the notification,
apply for review, and the Trademark Review and Adjudication Board
shall make a final decision, and notify the opponent and the 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 the 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 such application could be filed within the said period, an
extension period of six months may be allowed. If no application
is filed by the expiration of the extension 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 approval.
Article 25. Where a registered trademark is assigned,
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 the registered trademark shall be published
after approval.
Article 26. Any trademark registrant may, by
signing a trademark license contract, authorize other persons
to use his registered trademark. The licenser 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.
The trademark license contract shall be submitted to the Trademark
Office for the file.
Chapter V. Adjudication of Disputes Concerning
Registered Trademarks
Article 27. 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 the receipt
of the application for adjudication, notify the interested parties
and request them to respond with arguments within a specified
period.
Article 28. Where the trademark, before being
approved for registration, has been the object of opposition and
decision, no application for adjudication, based on the same facts
and grounds, may be made.
Article 29. After the Trademark Review and Adjudication
Board has made the final decision maintaining or canceling the
disputed registered trademark, it shall notify the interested
parties in writing.
Chapter VI. Administrative Control of the Use
of Trademarks
Article 30. Where any person who uses the registered
trademark commits any of the following, the Trademark Office shall
order him to rectify (the situation) within a specified period
or shall cancel the registered trademark:
(1) where any word, design, or their combination, of the 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);
(4)where the registered trademark has ceased to be used for three
consecutive years.
Article 31. Where the registered trademark is
used in respect of goods which 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 all levels shall, according to the
circumstances, order the rectification (of the situation) within
a specified period, and may, in addition circulate a notice of
criticism or impose a fine, or the Trademark Office may cancel
the registered trademark.
Article 32. Where the registered trademark is
canceled or has expired and not been renewed, the Trademark Office
shall not approve, during one year from the date of the cancellation
or the removal (on account of expiration), applications for registration
of trademarks identical with or similar to the said trademark.
Articles 33. In the case of any person violating
the provisions of Article 5 of this Law, the local administrative
authorities for industry and commerce shall order him to file
and application for registration within a specified period, and
may, in addition, impose a fine.
Article 34. Where any person who uses an unregistered
trademark commits any of the following, the local administrative
authorities for industry and commerce shall stop the use of the
trademark, 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;
(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 the registered trademark may
apply for review within fifteen days, from the receipt of the
(corresponding) notice. 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 an administrative authority for industry and commerce imposing
a fine under the provisions of Articles 31, Article 33 or Article
34 may institute proceedings with the people's court within fifteen
days from the receipt of the (corresponding) notice. If no proceedings
are instituted or if there is no performance ( complying with
the decision imposing the fine) by the expiration of the said
period, the administrative authority for industry and commerce
concerned may ask the people's court for compulsory execution.
Chapter VII. Protection of the Exclusive Right
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 which is identical with or similar to the
registered trademark in respect of the same or similar to the
registered trademark in respect of the same or similar goods without
the authorization of the proprietor of the registered trademark;
(2) to make or sell, without authorization, representations of
the registered trademark of another person;
(3) to cause, in other respects, prejudice to the exclusive right
to use the registered trademark of another person.
Article 39. In the case of any of the acts infringing
the exclusive right to use a registered trademark as provided
for in Article 38 of this Law, the party whose right was infringed
may request the administrative authority for industry and commerce,
at or above the county level, of the location (domicile or establishment)
of the infringer to handle (the matter). The administrative authority
for industry and commerce concerned shall have the power to order
the infringer to stop the infringing act immediately and to compensate
the party whose right was infringed for the damages suffered.
The amount of compensation shall be the profit which the infringer
has earned through the infringement during the period of the infringement
or the damages that the party whose right was infringed has suffered
through the infringement during the period of the infringement.
If the circumstances are serious, the said authority may, in addition,
impose a fine. Any dissatisfied party may institute proceedings
with the people's court within fifteen days from the receipt of
the notice. If no proceedings are institute or if there is no
performance (complying with the decision imposing the fine) by
the expiration of the said period, the administrative authority
for industry and commerce concerned may ask the people's court
for compulsory execution. Where the exclusive right to use the
registered trademark was infringed, the party whose right was
infringed may institute proceedings directly with the people's
court.
Article 40. Any party that passes off a registered
trademark of another person - including any party that makes or
sells, without authorization, representations of the registered
trademark of another person - shall compensate for the damages
suffered by the party whose right was infringed and additionally
shall be imposed a fine; furthermore, any person directly responsible
(for the passing off) shall be prosecuted, according to law, by
the judicial organs in respect of criminal responsibility.
Chapter VIII. Supplementary Provisions
Article 41. Any application for trademark registration
and any other proceeding in trademark matters shall be subject
to the payment of a fee. The rate of the fees shall be prescribed
separately.
Article 42. The Implementing Regulations of the
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 provision concerning trademark
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.
(The English translations are for reference only)
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