Order of the State Council of the People’s Republic of China
No. 358
The Regulation for the Implementation of the Trademark Law of the People’s Republic of China is hereby promulgated for implementation
as of September 15, 2002.
Zhu Rongji, Premier of the State Council
August 3, 2002
Regulation for the Implementation of the Trademark Law of the People’s Republic of China
Chapter I General Provisions
Article 1
The present Regulation has been enacted on the basis of the Trademark Law of the People’s Republic of China (hereafter referred to
as the Trademark Law).
Article 2
The provisions of the present Regulation concerning relevant commodities trademarks shall be applicable to service trademarks.
Article 3
The use of trademarks as mentioned in the Trademark Law and the present Regulation refers to affixing trademarks to commodities, commodity
packages or containers as well as commodity exchange documents or using trademarks to advertisements, exhibitions and other commercial
activities.
Article 4
The “commodities to which registered trademarks must be used according to the provisions of the State” as mentioned inArticle 6 of
the Trademark Law refers to the commodities to which registered must be used according to the provisions of laws or administrative
regulations.
Article 5
According to the provisions of the Trademark Law and the present Regulation, when a dispute arises in the process of trademark registration
or trademark appraisal and the relevant party concerned believes that the trademark thereof constitutes a well-known one, he may
apply to the corresponding Trademark Office or Trademark Appraisal Committee for recognition and reject the trademark registration
application that violatesArticle 13 of the Trademark Law or cancel the trademark registration that violatesArticle 13 of the Trademark
Law. When filing the application, the party concerned shall submit evidential materials to prove that the trademark thereof constitutes
a well-known trademark.
The Trademark Office or Trademark Appraisal Committee shall, upon the request of the party concerned and on the basis of finding out
facts, decide whether the trademark constitutes a well-known trademark or not according to the provisions ofArticle 14 of the Trademark
Law.
Article 6
The geographic marks as mentioned inArticle 16 of the Trademark Law may, according to the provisions of the Trademark Law and the
present Regulation, be registered as a certification mark or collective mark.
Where a geographic mark is registered as a certification mark, the natural person, legal person or other organization whose commodities
meets the conditions for using the geographic mark may request for using the certification mark, and the organization that controls
the certification mark shall consent. Where a geographic mark is registered as a collective mark, the natural person, legal person
or other organization whose commodities meets the conditions for using the geographic mark may request for becoming a member of the
body, society or other organization that has registered the geographic mark as a collective mark, and the body, society or other
organization shall accept him or it to be a member according to the constitutions thereof. Any one who does not request for becoming
a member of the body, society or other organization that has registered the geographic mark as a collective one, he or it may be
justified in using the geographic mark, and the body, society or other organization shall not interdict.
Article 7
To entrust a trademark agency to apply for trademark registration or handle other trademark matters, the party concerned shall present
a power of attorney. The power of attorney shall clearly specify the content of agency and the limit of power. If the client is a
foreigner or foreign enterprise, the power of attorney shall specify the nationality thereof.
The principle of reciprocity shall be followed in the notarization or attestation of powers of attorney of foreigners or foreign enterprises
as well as other relevant certification documents.
A foreigner or foreign enterprise as mentioned inArticle 18 of the Trademark Law refers to a foreigner or foreign enterprise that
does not have a permanent residence or site of business within China.
Article 8
The Chinese language shall be used in the applications for trademark registration or in the handling of other trademark matters.
If any of the certificates, certification documents or evidential materials submitted as pursuant to the provisions of the Trademark
Law and the present Regulation is in a foreign language, a Chinese version shall be submitted at the same time. If no Chinese version
is submitted, it shall be deemed that the certificate, certification document or evidential material has not been submitted.
Article 9
A working staff of the Trademark Office or Trademark Appraisal Committee shall withdraw, and the party concerned or interested parties
may request him to withdraw if he:
a.
is the party concerned or a close relative of the party concerned or the agent thereof;
b.
has other relationship with the party concerned or the agent thereof so that impartiality may be affected;
c.
has an interest in the application for trademark registration or in the handling of other trademark matters.
Article 10
Unless it is otherwise provided, where the parties concerned submits documents or materials to the Trademark Office or Trademark Appraisal
Committee directly, the day when he submits shall be the day of submission. If the documents or materials are submitted by post,
the post stamp date for sending out shall be the day of submission. Where the post stamp date is not clear or there is no post stamp
date, the submission date shall be the day when the Trademark Office or Trademark Appraisal Committee actually receives the documents
or materials unless the parties concerned can prove the actual post stamp date for sending out.
Article 11
The various kinds of documents of the Trademark Office or Trademark Appraisal Committee may be serviced to the parties concerned directly
or by post or by any other means. Where the party concerned has entrusted a trademark agency, the service of documents to the trademark
agent shall be deemed as having been serviced to the party concerned.
As for the date of service of the various kinds of documents to the parties concerned by the Trademark Office or Trademark Appraisal
Committee, if the documents are serviced by post, it shall be the post stamp date when the party concerned receives the document.
Where the post stamp date is not clear or there is no post stamp date, it shall be deemed as having been serviced to the party concerned
15 days after the document is sent out. If the document is serviced directly, it shall be the day when it is serviced. Where it is
impossible to service directly or by post, it may be serviced to the parties concerned by public announcement. The document shall
be deemed as having been serviced 30 days after the public announcement is made.
Article 12
International trademark registrations shall be handled according to the international treaties to which China has acceded. The detailed
specific measures shall be formulated by the administrative department of industry and commerce under the State Council.
Chapter II Application for Trademark Registration
Article 13
An application for trademark registration shall be made according to the published table of classification of commodities and services.
For each trademark registration application, the applicant shall submit to the Trademark Office a copy of Application for Trademark
Registration, 5 copies of the trademark design, and, in the case of decided colors, 5 copies of colored design and a copy of black
and white design.
The trademark designs shall be conspicuous and easy to be attached. They shall be printed on smooth and durable paper or be replaced
by photos, the size of which shall be no more than 10 centimeters but no less than 5 centimeters in length or width.
Where an application is made for a three-dimensional mark, it shall be clearly stated in the application and a design shall be submitted
according to which three-dimensional shape could be determined.
Where an application is made for the registration of a color group as a trademark, it shall be clearly specified in the application
and a written explanation shall be submitted.
Where an application is made for the registration of a collective trademark or certification mark, it shall be specified in the application,
and a certification document concerning the qualifications of the subject as well as the rules of the administration of use shall
be submitted.
Where a trademark is in a foreign language or involves a foreign language, the meanings of the foreign language shall be explained.
Article 14
To apply for trademark registration, the applicant shall submit a photocopy of the effective certificates that can prove his identification.
The name of the trademark registration applicant shall be identical to the certificates submitted.
Article 15
The name of a commodity or service to be filled in shall be based on the table of classification of commodities and services. Where
the name of a commodity or service is not included in the table of classification of commodities and services, an explanation shall
be made concerning the commodity or service.
The trademark registration applications and other relevant documents shall be typewritten or printed.
Article 16
To jointly apply for the registration of a same trademark, a representative shall be designated in the application. In the absence
of a representative, the first sequence person in the application shall be the representative.
Article 17
Where the applicant alters his name, address or agent, or deletes any of the designated commodities, he may apply to the Trademark
Office for alterations.
Where the applicant transfers his application for trademark registration, he shall go through transfer procedures at the Trademark
Office.
Article 18
The day of application for trademark registration shall be the day when the Trademark Office receives the application documents. If
the application procedures are complete and application documents have been filled in according to relevant provisions, the Trademark
Office shall accept and notify the applicant in writing. If the application procedures are incomplete or application documents fail
to be filled in according to relevant provisions, the Trademark Office shall refuse to accept and inform the applicant in writing
together with an explanation of the reasons.
If the application procedures are basically complete or the application documents are basically in conformity with relevant provisions
but need supplementing, the Trademark Office shall inform the applicant to make supplements, and demand him to make up the designated
contents and send back to the Trademark Office within 30 days after receiving the notice. If supplements are made within the required
time period and sent back to the Trademark Office, the date of application shall be retained. If the applicant fails to make the
supplement within the required time period, it shall be deemed that he has given up the application, and the Trademark Office shall
inform the applicant in writing.
Article 19
If two or more applicants apply on the same day for registration of identical or similar trademarks for the same kind of commodity
or similar commodity, each applicant shall submit, within 30 days and as notified by the Trademark Office, proof of the date of the
first use of its trademark. In case the trademarks were first used on the same day, or neither is yet in use, the applicants shall
settle the matter by negotiations within 30 days after receiving the notice of the Trademark Office, and the agreement shall be submitted
to the Trademark Office in writing. If they refuse to negotiate or if they fail to enter into any agreement, the Trademark Office
shall inform them to decide the applicant by drawing lots, and the application of other applicants shall be rejected. Where any applicant
has been notified by the Trademark Office but fails to draw lots, he shall be deemed as giving up his application, and the Trademark
Office shall inform the applicant failing to draw lots in writing.
Article 20
Where an applicant requests for priority according to the provisions ofArticle 24 of the Trademark Law, the reproduction of the documents
submitted thereby for the first time for trademark registration shall be subject to the certification of the administrative department
of trademark affairs that has accepted the application which shall mark the date and sequence number of application.
Where an applicant requests for priority according to the provisions ofArticle 25 of the Trademark Law, the certification documents
submitted by the applicant shall be subject to the attestation of an institution as designated by the administrative department of
industry and commerce under the State Council, with the exception of international commodity fairs held within the territory of China
on which his commodities have been exhibited.
Chapter III Examination of Applications for Trademark Registration
Article 21
The Trademark Office shall examine the applications for trademark registration that it has accepted according to the relevant provisions
of the Trademark Law and the present Regulation, and grant initial approval by public announcement to those applications that meet
the requirements and those applications that meet the requirements for registration of trademarks to be used on some of the designated
commodities. If the application does not meet the requirements or the application for registration of a trademark to be used on some
of the designated commodities does not meet the requirements, it shall be rejected, and the applicant shall be informed with an explanation
of the reasons.
Where the Trademark Office grants initial approval to an application for the registration of a trademark to be used on some of the
designated marks, the applicant may, prior to the expiration of the demurral period, request for giving up the application. Where
the applicant gives up his application for registering a trademark to be used on some of the designated commodities, the Trademark
Office shall cancel the original initial approval and terminate the examination procedures and make a new announcement.
Article 22
If demurral is raised against a trademark to which the Trademark Office has granted initial approval by public announcement, the demurrer
shall submit a letter of demurral in duplicate to the Trademark Office. The letter of demurral shall clearly specify the issue number
of the Trademark Announcements on which the demurred mark is published and the number of initial approval. The letter of demurral
shall include specific claims, be supported by facts and be accompanied by relevant evidential materials.
The Trademark Office shall send a reproduction of the letter of demurral in good time to the demurred party, demanding him to give
a reply within 30 days after receiving the reproduction of the letter of demurral. In case the demurred party fails to make a reply,
the Trademark Office shall not be affected in making a ruling concerning the demurral.
Where any of the parties concerned needs to supplement relevant evidential materials after filing the request for demurral or after
making a reply, he shall make a statement in the request or reply, and submit them within 3 months after filing the request or making
the reply. Failure to submit at the expiration of the prescribed time period shall be deemed that the party concerned has quitted
the supplementation of relevant evidential materials.
Article 23
The term “justification of demurral” as mentioned inArticle 34 (b) of the Trademark Law shall include the justification on some of
the designated commodities. Where the demurral is justified on some of the designated commodities, the application for registering
a trademark to be used on some of the designated commodities shall not be approved.
Where public announcement has already been made for the registration of the demurred mark before the ruling of demurral takes effect,
the original registration announcement shall be canceled, and a new announcement shall be made for the mark approved for registration
by the ruling of demurral.
The mark which is approved for registration by the ruling of demurral shall not have retrospective force against other persons’ use
of the same or similar mark on identical or similar products after the period of trademark demurral expires but before the ruling
of demurral takes effect. However, if any loss has been caused by the vicious use of the user to the trademark registrant, such loss
shall be compensated.
The time period for requesting appraisal of a trademark which is approved for registration by the ruling of demurral shall commence
on the day when the ruling of demurral is announced.
Chapter IV Alteration, Transfer and Renew of Registered Trademarks
Article 24
To alter the name, address or other registration matters of a trademark registrant, the applicant shall file an application for alteration
to the Trademark Office. The Trademark Office shall, upon approving the application, issue a corresponding certificate to the trademark
registrant and make a public announcement. In approval is not to be granted, it shall inform the applicant in written form.
To alter the name of a trademark registrant, the applicant shall also submit relevant certification documents of alteration as issued
by the business registration authority. If he fails to submit the certification documents, he may make it up within 30 days after
filing the application. If he fails to submit when the prescribed time period expires, it shall be deemed that he has quitted the
application, and the Trademark Office shall inform the applicant in written form.
To alter the name or address of a trademark registrant, the registrant shall alter all of his registered trademarks. Failing to alter
all his registered trademarks, it shall be deemed that he has quitted the application, and the Trademark Office shall inform the
applicant in written form.
Article 25
To transfer a registered trademark, the transferrer and the transferee shall file an application to the Trademark Office for the transfer
of the registered mark. The application procedures for the transfer shall be gone through by the transferee. The Trademark Office
shall, after granting approval to the transfer of registered trademark, issue corresponding certificates to the transferee and make
a public announcement.
To transfer a registered trademark, the registrant shall transfer all his identical or similar marks that are used on identical or
similar commodities. If he fails to transfer all his marks, the Trademark Office shall inform him to mend up within a prescribed
time period. If he fails to mend up during the time period, it shall be deemed that he has quitted the application for transferring
the mark, and the Trademark Office shall inform the applicant in written form.
If the transfer of registered trademark may be misleading, confusing or causing other unfavorable effects, the application for such
transfer shall not be approved by the Trademark Office and shall inform the applicant in written form together with an explanation
of the reasons.
Article 26
If the exclusive right to use a registered trademark is transferred due to any matter other than trademark transfer, the party concerned
that accepts the exclusive right to use the registered trademark shall handle the procedures of transferring the exclusive right
by presenting relevant certification documents or legal documents at the Trademark Office.
If the exclusive right to use a registered trademark is transferred, the identical or similar trademarks that the right holder registers
on the identical or similar commodities shall be transferred at the same time. If he fails to transfer at the same time, the Trademark
Office shall order him to mend up. If he fails to mend up during the prescribed time period, it shall be deemed that he has quitted
the application for transferring the registered trademark, and the Trademark Office shall inform the applicant in writing.
Article 27
Where the registration of a registered mark needs to be renewed, an application shall be filed to the Trademark Office for renewal.
The Trademark Office shall, upon approving the application for renewing the registration, issue a certificate and make a public announcement.
The valid period of time of the renewed registered trademark shall be calculated from the day when the preceding period of the mark
expires.
Chapter V Trademark Appraisal
Article 28
The Trademark Appraisal Committee accepts applications for trademark appraisal filed according to the provisions ofArticles 32, 33,
41 and 49. The Trademark Appraisal Committee makes appraisals lawfully and on the basis of facts.
Article 29
The phrase “having different opinions about a registered trademark” as mentioned inArticle 41 , Paragraph 3 of the Trademark Law refers
to that the prior trademark registrant believes that the trademark of a latter applicant is identical or similar to his trademark
used on identical or similar commodities.
Article 30
To apply for trademark appraisal, the applicant shall file an application to the Trademark Appraisal Committee and submit as many
reproductions as the number of parties concerned. If an application for reconsideration is filed on the basis of the decision or
ruling of the Trademark Office, a reproduction of the decision or ruling of the Trademark Office shall be attached at the same time.
After receiving the application, the Trademark Appraisal Committee shall accept it if it is found to be eligible upon examination.
If it is found to be not eligible for acceptance, the Trademark Appraisal Committee shall not accept it, but shall inform the applicant
in writing together with an explanation of the reasons. If the application needs to be mended up, the applicant shall be informed
to mend up within 30 days after receiving the notice. If the application is still not eligible after being mended up, the Trademark
Appraisal Committee shall reject it and inform the applicant in writing together with an explanation of the reasons. If the applicant
fails to mend up during the prescribed time period, it shall be deemed that he has withdrawn the application, and the Trademark Appraisal
Committee shall inform the applicant in writing.
If the Trademark Appraisal Committee finds the application for trademark appraisal does not meet the requirements for acceptance after
it is accepted, it shall reject it and inform the applicant in writing.
Article 31
After accepting the application for trademark appraisal, the Trademark Appraisal Committee shall send a reproduction of the application
to the opposite party in good time, and demanding him to make a reply within 30 days after receiving the reproduction. If he fails
to make a reply within the prescribed time period, the appraisal of the Trademark Appraisal Committee shall not be affected.
Article 32
Where any party concerned needs to supplement relevant evidential materials after filing the application for appraisal or making a
reply, he shall make a statement in the application or reply, and shall submit them within 3 months after filing the application
or making a reply. If he fails to submit within the prescribed period, it shall be deemed that he has quitted the supplementation
of relevant evidential materials.
Article 33
The Trademark Appraisal Committee may, according to the request of the parties concerned or the actual need, decide whether to appraise
the application in public.
Where the Trademark Appraisal Committee decides to appraise the application in public, it shall inform the parties concerned in writing,
15 days prior to the public appraisal, of the date, venue and appraisers. The parties concerned shall make a reply within the time
period as prescribed in the notice.
If the applicant neither makes a reply nor attends the public appraisal, it shall be deemed that he has withdrawn his application,
and the Trademark Appraisal Committee shall inform the parties concerned in writing. If the party against whom the application is
filed neither makes a reply nor attends the public appraisal, the Trademark Appraisal Committee may make a default appraisal.
Article 34
If the applicant requests to withdraw his application before the Trademark Appraisal Committee makes a decision or ruling, he may
withdraw it after making a written explanation to the Trademark Appraisal Committee. The appraisal procedures shall be terminated
when the application is withdrawn.
Article 35
Where any applicant withdraws his application for trademark appraisal, he may not file any further applications on the same facts
and reasons. If the Trademark Appraisal Committee has made a decision or ruling about the application, no one may file further applications
on the same facts and reasons.
Article 36
In case a registered trademark is canceled according to the provisions ofArticle 41 of the Trademark Law, the exclusive right to
use the trademark shall be deemed as not existing from the very beginning. The decisions or rulings about canceling a registered
trademark shall not have retrospective force against the decisions made and enforced by the administrative department of industry
and commerce concerning trademark infringement cases or contracts for the transfer of trademark or licensed use of trademark which
has already been performed. However, if any loss has been caused by the trademark registrant to any other party, such loss shall
be compensated.
Chapter VI Administration of the Use of Trademarks
Article 37
For the use of a registered trademark, it may be marked with the words “registered trademark” or a mark of registration on the commodities,
commodity packages, specifications or other adhesive substances.
Marks of registration include the encircled Chinese character “zhu” (ΧΆ) or encircled letter “R” (?). The mark of registration shall
be used at the upper right or lower right corner of the trademark used.
Article 38
In case the certificate of trademark registration is missing damaged, the registrant shall apply to the Trademark Office for reissuance.
If the certificate of trademark registration is missing, a lost property notice shall be published in the Trademark Announcements.
The damaged certificate of trademark registration shall be returned to the Trademark Office when the registrant files an application
for reissuing a certificate.Any one who forges or alters a certificate of trademark registration shall be subject to criminal liabilities
according to the provisions of the Criminal Law concerning the crime of forging or altering certificates of state organs or other
crimes.
Article 39
Any trademark registrant who does any of the acts as mentioned in Items 1, 2 or 3 ofArticle 44 of the Trademark Law shall be ordered
by the administrative department of industry and commerce to mend up within a prescribed time period. If he refuses to mend up, the
administrative department of industry and commerce shall report to the Trademark Office for canceling the registered trademark thereof.
Where any of the acts as mentioned in Item 4 ofArticle 44 of the Trademark Law, any one may request the Trademark Office to cancel
the registered trademark and narrate the relevant facts. The Trademark Office shall inform the trademark registrant and order him
to submit, within 2 months after receiving the notice, evidential materials for using the trademark before withdrawing his application
or to state the justifications for not using it. If he fails to submit evidential materials for using it or if the evidential materials
are invalid and he has not justified reasons, the registered trademark shall be canceled by the Trademark Office.
The term “evidential materials” as mentioned in the preceding paragraph shall include the evidential materials for the trademark registrant’s
use of the registered trademark and the evidential materials for registrant’s licensing other people to use it.
Article 40
In case a registered trademark is canceled according to the provisions ofArticles 44 and 45 of the Trademark Law, a public announcement
shall be made by the Trademark Office, and the exclusive right to use the registered trademark shall be terminated as of the day
when the Trademark Office makes the decision of cancellation.
Article 41
If the reasons of the Trademark Office or Trademark Appraisal Committee for canceling a registered trademark concern only some of
the designated commodities, the registered trademark that is used on this part of designated commodities shall be canceled.
Article 42
A fine to be imposed according to the provisions ofArticles 45 and 48 of the Trademark Law shall be less than 20% of the unlawful
turnover or less than 2 times the unlawful profits obtained.
A fine to be imposed according to the provisions ofArticle 47 of the Trademark Law shall be less than 10% of the unlawful turnover.
Article 43
In the case of licensing other people to use his registered trademark, the licensor shall submit, within 3 months after the contract
for licensed use of trademark is concluded, a reproduction of the contract to the Trademark Office for archivist purposes.
Article 44
Any one who violates the provisions ofArticle 40 , Paragraph 2 of the Trademark Law shall be ordered by the administrative department
of industry and commerce to mend up within a prescribed time period. If he fails to mend up during the prescribed time period, the
trademark signs thereof shall be confiscated. If the trademark signs are indispensable from the commodities, they shall be confiscated
and destroyed together.
Article 45
In case any use of trademarks violatesArticle 13 of the Trademark Law, the relevant parties concerned may request the administrative
department of industry and commerce to interdict the use. When making the request, the parties concerned shall submit evidential
materials to prove that the trademark thereof constitutes a well-known one. If the Trademark Office affirms on the basis ofArticle
14 of the Trademark Law that the trademark constitutes a well-known one, the administrative department of industry and commerce
shall order the infringer to stop his acts of using the well-known trademark which is against the provisions ofArticle 13 of the
Trademark Law. The trademark signs thereof shall be confiscated and destroyed. If the trademark signs are indispensable from the
commodities, they shall be confiscated and destroyed together.
Article 46
To apply for writing off a registered trademark or the registration of a trademark on some of the designated commodities, the trademark
registrant shall file an application to the Trademark Office and return the original certificate of trademark registration.
Where the trademark registrant requests for writing off a registered trademark or writing off the registration of a trademark on some
of the designated commodities, the exclusive right to use the registered trademark or to use on some of the designated commodities
shall be terminated as of the day when the Trademark Office receives its request for writing off.
Article 47
In case the trademark registrant dies or is terminated and the registered trademark has not been transferred within 1 year after the
death or termination, any one may request the Trademark Office for writing office the registered trademark. To apply for writing
off the registered trademark, one shall submit evidences to prove that the relevant trademark registrant has died or been terminated.
Where a registered trademark is written off due to the death or termination of registrant, the exclusive
