| Category |
INTELLECTUAL PROPERTY RIGHT |
Organ of Promulgation |
The Standing Committee of the National People’s Congress |
Status of Effect |
With An Amendment Existing |
| Date of Promulgation |
1982-08-23 |
Effective Date |
1983-03-01 |
|
|
|
Trademark Law of the People’s Republic of China |
Contents
Chapter I General Provisions
Chapter II Application for Trademark Registration
Chapter III Examination and Approval of Trademark Registration
Chapter IV Renewal, Assignment and Licensing of Registered Trademarks
Chapter V Determination of Disputes Concerning Registered Trademarks
Chapter VI Administrative Control of the Use of Trademarks
Chapter VIII Supplementary Provisions
(Adopted at the 24th Meeting of the Standing Committee of the Fifth
National People’s Congress and promulgated by Order No. 10 of the Standing
Committee of the National People’s Congress on August 23, 1982, and
effective as of March 1, 1983) (Editor’s Note: For the revised text, see
Decision of the Standing Committee of the National People’s Congress on
Revision the Trademark Law of the People’s Republic of China promulgated
on February 22, 1993)
Contents
Chapter I General Provisions
Chapter II Application for Trademark Registration
Chapter III Examination and Approval of Trademark Registration
Chapter IV Renewal, Assignment and Licensing of Registered Trademarks
Chapter V Determination of Disputes Concerning Registered Trademarks
Chapter VI Administrative Control of the Use of Trademarks
Chapter VII Protection of the Right to Exclusive Use of a Registered
Trademark
Chapter VIII Supplementary Provisions
Chapter I General Provisions
Article 1 This Law is formulated for the purpose of improving the
administration of trademarks, protecting the right to exclusive use of
trademarks and encouraging producers to guarantee the quality of their goods
and maintain the reputation of their trademarks, so as to protect the
interests of consumers and promote the development of the socialist commodity
economy.
Article 2 The Trademark Office of the administrative department for
industry and commerce under the State Council shall be in charge of the work
of trademark registration and administration throughout the country.
Article 3 Registered trademarks are those that have been approved and
registered by the Trademark Office. Trademark registrants shall enjoy the
right to exclusive use of their trademarks and shall be protected by law.
Article 4 Any enterprise, institution or self-employed industrialist or
businessman that needs to acquire the right to exclusive use of a trademark
for the goods it produces, manufactures, processes, selects or markets shall
file an application for registration with the Trademark Office.
Article 5 With respect to goods that the state has designated as
requiring the use of a registered trademark, an application for trademark
registration must be filed; the goods may not be sold on the market before
registration is granted.
Article 6 The user of a trademark shall be responsible for the quality
of the goods on which the trademark is used. The administrative departments
for industry and commerce at all levels shall, by means of trademark
administration, exercise supervision over the quality of goods and stop any
practices that deceive consumers.
Article 7 Any word or design, or combination thereof, used as a
trademark, shall have distinctive characteristics so as to facilitate
identification. Wherever a registered trademark is used, it shall bear the
words “Registered trademark” or a sign indicating that it is registered.
Article 8 The following words or designs may not be used in trademarks:
(1) those identical with or similar to the national name, national flag,
national emblem, military flag or medals of the People’s Republic of China;
(2) those identical with or similar to the national name, national flag,
national emblem or military flag of any foreign country;
(3) those identical with or similar to the flag, emblem or name of any
intergovernmental international organization;
(4) those identical with or similar to the symbol or name of the Red
Cross or the Red Crescent;
(5) the generic name or design of the goods concerned;
(6) those directly indicating the quality, main raw materials, function,
use, weight, quantity or other characteristics of the goods concerned;
(7) those having the nature of discrimination against any nationality;
(8) those constituting exaggerated and deceitful advertising; and
(9) those detrimental to socialist morality or customs, or having other
harmful influences.
Article 9 Where a foreigner or foreign enterprise applies for trademark
registration in China, the matter shall be handled in accordance with any
agreement concluded between the country to which the applicant belongs and
the People’s Republic of China, or any international treaty to which both
countries are parties, or on the basis of the principle of reciprocity.
Article 10 Where a foreigner or foreign enterprise applies for trademark
registration or deals with other trademark matters in China, it shall
entrust an organization designated by the Chinese Government to act on its
behalf.
Chapter II Application for Trademark Registration
Article 11 An applicant for trademark registration shall report, in
accordance with the prescribed classification of goods, the class of the goods
and the designation of the goods on which the trademark is to be used.
Article 12 If an applicant intends to use the same trademark on goods
in different classes, it shall submit separate applications for registration
in accordance with the classification of goods.
Article 13 If a registered trademark needs to be used on other goods of
the same class, a new application for registration shall be filed.
Article 14 If any word or design of a registered trademark needs to be
changed, a new application for registration shall be filed.
Article 15 If a change needs to be made in the name, address or any other
registered matter concerning the registrant of a registered trademark, an
application to make the change shall be filed.
Chapter III Examination and Approval of Trademark Registration
Article 16 When an application has been made to register a trademark that
is in conformity with the relevant provisions of this Law, the Trademark Office
shall make a preliminary examination and approval of that trademark and shall
publicly announce it.
Article 17 If an application has been made to register a trademark that
is not in conformity with the relevant provisions of this Law or that is
identical with or similar to another person’s trademark which has already been
registered or given preliminary examination and approval for use on the same
kind of goods or similar goods, the Trademark Office shall reject the current
application and shall not publicly, announce that trademark.
Article 18 If two or more applicants apply for registration of identical
or similar trademarks for the same kind of goods or similar goods, the
trademark whose registration was first applied for shall be given preliminary
examination and approval and shall be publicly announced; if the applications
are filed on the same day, the trademark which was first used shall be given
preliminary examination and approval and shall be publicly announced, and the
applications of the others shall be rejected and shall not be publicly
announced.
Article 19 Any person may file on opposition to a trademark which has
been given preliminary examination and approval, within three months from the
day it was publicly announced. If no opposition is filed, or if it is
determined that the opposition is not justified, registration shall be
granted, a trademark registration certificate shall be issued and the
trademark shall be publicly announced. If it is determined that the opposition
is justified, no registration shall be granted.
Article 20 The administrative department for industry and commerce under
the State Council shall establish a Trademark Review and Adjudication Board to
be responsible for handling trademark disputes.
Article 21 When an application for trademark registration has been
rejected and the trademark is not to be publicly announced, the Trademark
Office shall notify the applicant in writing. If the applicant does not agree
with the rejection, it may apply for a reexamination within 15 days after
receiving the notification, and the Trademark Review and Adjudication Board
shall make a final decision and notify the applicant in writing.
Article 22 If an opposition is filed against a trademark which has been
given preliminary examination and approval and has been publicly announced,
the Trademark Office shall hear the opponent’s and the applicant’s statements
of the facts and reasons and shall, after investigation and verification,
make a decision. If a party disagrees with the decision, it may apply for a
reexamination within 15 days after receiving notification of the decision,
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 day the registration is approved.
Article 24 If a registrant needs to continue to use the registered
trademark after the period of validity expires, an application for renewal of
registration shall be made within six months before the expiration. If the
registrant fails to make such an application within that period, an extension
period of six months may be granted. If no application has been filed before
the extension period expires, the registered trademark shall be cancelled.
The period of validity for each renewal of registration shall be ten
years. After a renewal of registration has been approved, it shall be publicly
announced.
Article 25 When a registered trademark is to be assigned, the assignor
and the assignee shall jointly file an application with the Trademark Office.
The assignee shall guarantee the quality of the goods on which the registered
trademark is to be used.
After the assignment of a registered trademark has been approved, it
shall be publicly announced.
Article 26 A trademark registrant may, by concluding a trademark
licensing contract, authorize another person to use its 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 to be used.
The trademark licensing contract shall be submitted to the Trademark office
for the record.
Chapter V Determination of Disputes Concerning Registered Trademarks
Article 27 If there is a dispute over a registered trademark, the
disputant may apply to the Trademark Review and Adjudication Board for a
ruling within one year from the day, the trademark registration was approved.
After the Trademark Review and Adjudication Board has received an
application for a ruling, it shall notify the parties concerned and request
them to reply within a specified period.
Article 28 If an opposition was filed and a ruling already made prior to
the approval of the registration of a trademark, the same facts and reasons
may not be used in an another application for a ruling.
Article 29 After the Trademark Review and Adjudication Board has made the
final ruling upholding or revoking a registered trademark in dispute, it shall
notify the parties concerned in writing.
Chapter VI Administrative Control of the Use of Trademarks
Article 30 In the event of any of the following acts concerning the use
of a registered trademark, the Trademark Office shall order rectification of
the situation within a specified period or shall revoke the registered
trademark:
(1) if any word or design, or combination thereof, of the registered
trademark is altered without authorization;
(2) if the registrant’s name, address or any other registered matters
concerning the registered trademark is changed without authorization;
(3) if the registered trademark is assigned without authorization; and
(4) if the registered trademark has not been used for three consecutive
years.
Article 31 If a registered trademark is used on crudely manufactured
goods that are passed off as being of high quality, thus deceiving consumers,
the administered administrative departments for industry and commerce at
various levels shall, according to the circumstances, order rectification of
the situation within a specified period and may, in addition, circulate a
notice on the matter or impose a fine, or the Trademark Office may revoke
the registered trademark.
Article 32 If a registered trademark is revoked or is not renewed after
its period of validity expires, 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 from the day of the revocation or
cancellation.
Article 33 In the event of a violation of the provisions of Article 5 of
this Law, the local administrative department for industry and commerce shall
order the violator to file an application for registration within a specified
period and may, in addition, impose a fine.
Article 34 In the event of any of the following acts concerning the use
of an unregistered trademark, the local administrative department for industry
and commerce shall stop the use of the trademark, order rectification of the
situation within a specified period and may, in addition, circulate a notice
on the matter or impose a fine:
(1) if the trademark is falsely represented as being a registered one;
(2) if the trademark violates the provisions of Article 8 of this Law; or
(3) if the trademark is used on crudely manufactured goods that are passed
off as being of high quality, thus deceiving consumers.
Article 35 If a party disagrees with the decision of the Trademark Office
to revoke a registered trademark, it may apply for a reexamination within 15
days after receiving notification of the revocation, and the Trademark Review
and Adjudication Board shall make a final decision and notify the applicant
in writing.
Article 36 If a party disagrees with the decision of the administrative
department for industry and commerce to impose a fine under the provisions of
Article 31,33 or 34 of this Law, it may bring a suit in a people’s court
within 15 days after receiving the notification of the decision. If, at the
expiration of such a period, the party has neither brought a suit nor complied
with the decision, the relevant administrative department for industry and
commerce shall apply to the people’s court for compulsory enforcement of its
decision.
Chapter VII Protection of the Right to Exclusive Use of a Registered
Trademark
Article 37 The right to exclusive use of a registered trademark shall be
limited to trademarks which have been approved for registration and to goods
on which the use of a trademark has been approved.
Article 38 Any of the following acts shall be an infringement of the
right to exclusive use of a registered trademark:
(1) using a trademark which is identical with or similar to the registered
trademark on the same kind of goods or similar goods without a licence from
the owner of that registered trademark;
(2) manufacturing or selling, without authorization, representations of
the registered trademark of another person; or
(3) harming, in other ways, another person’s right to exclusive use of a
registered trademark.
Article 39 In the event of any of the acts listed in Article 38 of this
Law, infringing the right to exclusive use of a registered trademark, the
party whose right has been infringing may request the administrative
department for industry and commerce at or above the county level in the place
where the infringer is located to handle the matter. The relevant
administrative department for industry and commerce shall have the right to
order the infringer to stop the infringing act immediately and to compensate
the party whose right has been infringed for its losses; the amount of
compensation shall be the profits which the infringer has obtained as a result
of the infringement during the period of the infringement or the losses
incurred by the party whose right has been infringed as a result of the
infringement during the period of the infringement. If the circumstances
are serious, a fine may be concurrently imposed. If a party disagrees with
the order, it may bring a suit in a people’s court within 15 days after
receiving notification of the order. If, at the expiration of such a period,
the party has neither brought a lawsuit nor complied with the decision, the
relevant administrative department for industry and commerce shall request
the people’s court for compulsory enforcement of its decision. In the event of
an infringement of the right to exclusive use of a registered trademark, the
party whose right has been infringed may also directly bring a suit in a
people’s court.
Article 40 Any person who falsely uses the registered trademark of
another person, including the unauthorized manufacture or sale of
representations of another person’s registered trademark, shall be ordered to
make compensation for the losses suffered by the party whose right has been
infringed and may be concurrently punished by a fine. Moreover, the criminal
responsibility of the person directly responsible shall be investigated by
the judicial organs in accordance with the law.
Chapter VIII Supplementary Provisions
Article 41 Applicants for trademark registration and the handling of
other trademark matters shall pay a fee, the specific standards of which shall
be prescribed separately.
Article 42 Rules for the implementation of this Law shall be formulated
by the administrative department for industry and commerce under the State
Council, and shall be implemented after they have been submitted to and
approved by the State Council.
Article 43 This Law shall go into effect as of March 1, 1983. On that
same day, the Regulations on Trademark Administration promulgated by the State
Council on April 10, 1963 shall simultaneously be repealed, and any other
provisions concerning trademark administration that conflict with this Law
shall be invalidated.
Trademarks registered before this Law goes into effect shall continue to
be valid.
