| Category |
INTELLECTUAL PROPERTY RIGHT |
Organ of Promulgation |
The State Council |
Status of Effect |
With An Amendment Existing |
| Date of Promulgation |
1988-01-13 |
Effective Date |
1988-01-13 |
|
|
|
Rules for the Implementation of the Trademark Law of the People’s Republic of China |
Chapter I General Provisions
Chapter II Application for Trademark Registration
Chapter III Examination of Trademark Registration
Chapter IV Change, Assignment and Renewal of and Determination of
Chapter V Administrative Control of the Use of Trademark
Chapter VI Protection of the Right to Exclusive Use of a Registered
Chapter VII Supplementary Provisions
(Approved by the State Council for amendments on January 3, 1988,
promulgated by the State Administration for Industry and Commerce on
January 13, 1988) (Editor’s Note: For the revised text, see Rules for
Implementation of the Trademark Law of the People’s Republic of China
promulgated on July 28, 1993)
Chapter I General Provisions
Article 1 These Rules are formulated in accordance with the provisions of
Article 42 of the Trademark Law of the People’s Republic of China (hereinafter
referred to as the “Trademark Law”).
Article 2 An applicant for trademark registration must be an enterprise
or a self-employed industrialist or businessman that is registered in
accordance with the law and capable of independently undertaking civil
responsibilities and an institution having qualification of a legal person, or
a foreigner or foreign enterprise referred to in Article 9 of the Trademark
Law.
Article 3 Any application for trademark registration, assignment of
registration, renewal of registration, change of name or address of the
registrant, replacement of certificate of trademark registration or other
related matters shall be examined and transmitted by a local administrative
department for industry and commerce above the county level of the place where
the applicant is located (hereinafter referred to as the “department for
examination and transmission”) or handled by an agency designated by the State
Administration for Industry and Commerce.
Where a foreigner or foreign enterprise is to apply for trademark
registration in China or to deal with other trademark matters in China, the
application or matters shall be handled by an agency designated by the State
Administration for Industry and Commerce.
Article 4 A fee must be paid according to relevant stipulations for an
application for trademark registration, assignment of registration, renewal of
registration, change of name or address of the registrant, replacement of
certificate of trademark registration, examination and other related matters.
Article 5 The Trademark Office under the State Administration for
Industry and Commerce (hereinafter referred to as “the Trademark Office”)
shall establish and maintain the “Trademark Register” which shall record
registered trademarks and relevant registration matters.
The Trademark Office shall edit and issue the “Trademark Gazette” which
shall announce trademark registrations and other related matters.
Article 6 The names of administrative divisions above the county level
(county names included) and those of wellknown foreign localities may not be
used as trademarks.
Those trademarks already registered and approved under the names mentioned
above shall continue to be valid.
Article 7 Registered trademarks must be used on pharmaceuticals for human
use and tobacco products which have been prescribed by the State and
established by the State Administration for Industry and Commerce.
The other goods on which registered trademarks are to be used according to
state prescriptions shall be published by the State Administration for
Industry and Commerce.
Article 8 The State Administration for Industry and Commerce shall set up
the Trademark Review and Adjudication Board, which shall make final decisions
and rulings on matters submitted for reexamination in accordance with the
provisions of Articles 21,22,27 and 35 of the Trademark Law and of Article 23
of these Rules.
Chapter II Application for Trademark Registration
Article 9 A trademark registration shall be applied for separately
according to the class of goods as specified in the table for the
classification of goods. For each trademark registration, the applicant shall
submit to the Trademark Office an Application Form for Trademark Registration,
10 specimens of the trademark (in case of a specifically colored trademark
the specimens submitted must be coloured accordingly) and one copy of its
design in black and white.
The specimens of the trademark must be clear, easy to stick and printed on
durable paper with a smooth finish or in form of photos. Their length or width
shall be no more than 10 centimetres and no less than 5 centimetres.
Article 10 An application form for trademark registration and related
papers shall be filled out or written in pen and ink or writing brush and ink
or typed. The writing or typing shall be neat and clear.
The name, stamp or seal of the applicant for trademark registration shall
be the same as those approved or registered. The reported goods shall not go
beyond the approved or registered scope of business. The designation of the
goods shall be filled in according to the table for the classification of
goods; if not listed in the tables, a description of the goods must be
attached.
Article 11 In applying for trademark registration on pharmaceuticals for
human use, the license for Enterprises of Pharmaceutical Production or the
Licence for Enterprises of Pharmaceutical Management issued by the
administrative department for public health shall be attached to the
application.
In applying for trademark registration on cigarettes, cigars or packed cut
tobacco, papers certifying production approval by the competent authorities
for tobacco of the State shall be attached to the application.
In applying for trademark registration on other goods on which registered
trademarks are to be used according to the relevant state prescriptions,
papers certifying approval by the relevant competent departments shall be
attached to the applications.
Article 12 The date of application for registration of a trademark shall
be the date of the receipt of the application form and related papers by the
Trademark Office. If the applicant has gone through all the necessary
application procedures and has filled out the application form and related
papers in accordance with the relevant stipulations, the application form
shall be numbered. If the applicant fails to go through the necessary
procedures and to fill out the application form and related papers in
accordance with relevant stipulations, the application form shall be returned
to the applicant, and no date of application shall be reserved.
Article 13 If two or more applicants apply on the same day for
registration of the identical or a similar trademark for the same or similar
goods, they shall furnish, within a specified period notified by the Trademark
Office, proof of the dates on which they started using their respective
trademarks. If their use started on the same date, or none is yet in use,
the applicants shall settle the matter by consultations. If no agreement is
reached after 30 days of consultations, the Trademark Office shall determine
the matter.
Article 14 In applying for trademark registration or handling other
trademark matters, a foreigner or foreign enterprises shall use the Chinese
language and issue a power of attorney for his(its) agent. The power of
attorney shall specify the scope of powers of the agent and the nationality of
the applicant.
Procedures of notarization and authentication for power of attorney and
relevant certificates shall be completed in light of the principle of
reciprocity. Chinese translations shall be attached to the application form
filled out and related papers written in foreign languages.
Article 15 The Trademark Office may entertain claims for priority in the
application for trademark registration. Specific procedures shall be followed,
as prescribed and promulgated by the State Administration for Industry and
Commerce.
Chapter III Examination of Trademark Registration
Article 16 The Trademark Office shall examine the applications which have
been numbered. A trademark that has been given preliminary examination and
approval shall be published in the Trademark Gazette. For a rejected
application, a written notification of rejection shall be issued to the
applicant, and a copy thereof sent to the department for examination and
transmission.
Article 17 When a trademark application is rejected, the applicant may,
within 15 days after receiving the notification of rejection, send an
Application Form for Reexamination of Rejected Trademarks to the Trademark
Review and Adjudication Board to apply for a reexamination, with the original
Application Form for Trademark Registration, 10 specimens of the original
trademark, one copy of its design in black and white and the notification of
rejection attached as enclosure. A copy of the Application Form for
Reexamination shall also be sent to the department for examination and
transmission. The Trademark Review and Adjudication Board shall make a final
decision and notify the applicant in writing and a copy of the notification
shall also be sent to the department for examination and transmission. The
trademark which ought to be given preliminary examination and approval as a
result of the final decision shall be transferred to the Trademark Office for
handling.
Article 18 In filing an opposition against a trademark that has been
given preliminary examination and approval and has been publicly announced by
the Trademark Office, the opponent shall send in duplicate a Trademark
Opposition Form to the Trademark Office. The Trademark Opposition Form shall
specify the issue number of the Trademark Gazette in which the opposed
trademark was announced, its page number as well as the number of the
preliminary examination and approval. The Trademark Office shall send the
Trademark Opposition Form to the applicant, who shall give a reply within a
specified period, and the Trademark Office shall determine the matter
according to the facts and reasons stated by the parties concerned. If no
reply is given within the time limit, the Trademark Office shall make a
decision on the matter.
The Trademark Office shall notify, the parties concerned of the decision
made on the trademark opposition, and a copy of the notification shall be sent
to the department for examination and transmission.
Article 19 If a party disagrees with the decision made by the Trademark
Office on the trademark opposition it may, within 15 days after receiving
notification of the decision, send in duplicate the Application Form for
Reexamination of Trademark Opposition to the Trademark Review and Adjudication
Board to apply for reexamination, and a copy of the Form must be sent to the
department for examination and transmission.
The Trademark Review and Adjudication Board shall make a final decision,
notify the parties concerned in writing, send a copy of the notification to
the department, for examination and transmission and transfer the matter to
the Trademark Office.
Chapter IV Change, Assignment and Renewal of and Determination of
Disputes over Registrated Trademarks
Article 20 In applying for change of the name of a registrant, the
applicant shall file, for each trademark registered, an Application Form for
Change of Name of Registrant of a Registered Trademark and a Certificate of
Change of Name of Registrant with the Trademark Office and the original
Certificate of Trademark Registration shall be turned in therewith. After
examination and approval by the Trademark Office, the original Certificate of
Trademark Registration shall be returned with due notation, and the change
shall be announced publicly.
In applying for change of the address of a registrant or other registered
matters, the applicant shall file, for each trademark registered, an
Application Form for Change of Address of Registrant of a Registered
Trademark or an Application Form for Change of Other Registered Matters, and a
Certificate of Change of Address of Registrant or a Certificate of Change of
Other Registered Matters with the Trademark Office, and the original
Certificate of Trademark Registration shall be turned in therewith. After
examination and approval by the Trademark Office, the original Certificate
of Trademark Registration shall be returned with due notation, and the change
shall be announced publicly.
In applying for change of the name or address of a registrant, the
registrant shall go through the above formalities simultaneously for all its
(his) registered trademarks.
Article 21 In applying for the assignment of registered trademarks, the
assignor shall file, for each registered trademark to be assigned, an
Application Form for Assignment of Registered Trademark with the Trademark
Office and the original Certificate of Trademark Registration shall be turned
in therewith. The matter shall be examined and transmitted by the department
for examination and transmission at the place where the assignee is located.
The assignee shall meet the requirements provided for in Article 2 of these
Rules. After examination and approval by the Trademark Office, the original
Certificate of Trademark Registration shall be given to the assignee with due
notation, and the assignment shall be publicly announced.
In applying for the assignment of registered trademarks, the registrant
shall go through the above formalities simultaneously for all its (his)
identical or similar trademarks registered for the same or similar goods. When
the trademarks of the goods provided for in Article 7 of these Rules are to be
assigned, the assignee shall present the certificates issued by the competent
departments in accordance with the provisions of Article 11 of these Rules.
Article 22 In applying for the renewal of trademark registration, the
applicant shall submit, for each trademark registered, an Application Form for
Renewal of Trademark Registration and five specimens of the trademark to the
Trademark Office, and the original Certificate of Trademark Registration shall
be turned in therewith. After examination and approval by the Trademark
Office, the original Certificate of Trademark Registration shall be returned
with due notation, and the renewal shall be publicly announced.
Article 23 If a registrant disagrees with the rejection by the Trademark
Office of its (his) application for assignment or renewal, the registrant may,
within 15 days after receiving notification of rejection, send an Application
Form for Reexamination of Rejected Assignment or Application Form for
Reexamination of Rejected Renewal to the Trademark Review and Adjudication
Board for reexamination, with the original Application form for Assignment
of Registered Trademark or Application Form for Renewal of Trademark
Registration and the notification of rejection attached as enclosure.
The Trademark Review and Adjudication Board shall make a final decision
and notify the registrant in writing and a copy of the notification shall be
sent to the department for examination and transmission. If the application
for registration assignment or renewal ought to be given examination and
approval as a result of the final decision, the matter shall be transferred to
the Trademark Office for handling.
Article 24 If a registrant raises a dispute over a trademark that has
already been registered under the name of another registrant, the disputant
shall, within one year from the day the trademark was announced in the
Trademark Gazette, file in duplicate an Application Form for a Ruling of
Dispute over Trademarks with the Trademark Review and Adjudication Board for a
ruling.
If a registered trademark in dispute is revoked as a result of the final
ruling of the Trademark Review and Adjudication Board, the Trademark Office
shall take over the matter, publicly announce the revocation and send a copy
of the notification of ruling to the department for examination and
transmission. The original registrant of the revoked trademarks shall, within
15 days after receiving the notification of the final ruling on the dispute,
surrender the original Certificate of Trademark Registration of the local
department for examination and transmission to be sent back to the Trademark
Office.
Article 25 Any person may file an Application Form for the Final Ruling
Revoking an Inappropriately Registered Trademark with the Trademark Review
and Adjudication Board for a final ruling. The clause shall not include those
trademarks which were once in dispute but have been upheld by the ruling.
If a trademark is thereby revoked by the final ruling of the Trademark
Review and Adjudication Board, the Trademark Office shall take over the
matter, publicly announce the revocation and send a copy of the notification
or ruling to the original department for examination and transmission. The
original registrant shall, within 15 days after receiving notification of the
final ruling on revocation, surrender the original Certificate of Trademark
Registration to the local department for examination and transmission to be
sent back to the Trademark Office.
Chapter V Administrative Control of the Use of Trademark
Article 26 A registered trademark shall be used with the indication in
characters “*” or with the mark * or *. If it is not convenient for a
commodity to bear such indication or mark, its packing or description and
its other attachments shall be so marked.(*: the Chinese form, for which,
see <FOREIGN-RELATED MATTERS>>, China Legal System Publishing House, July, 1991,
page 1181, Volume II — The Editor)
Article 27 An application for replacement is required for a lost or
mutilated Certificate of Trademark Registration. The applicant shall file an
Application Form for Replacement of Certificate of Trademark Registration,
together with five specimens of the trademark, with the Trademark Office. In
case of the loss of a Certificate of Trademark Registration, it is necessary
to have a loss announcement carried in a newspaper at or above the provincial
level and a copy of the newspaper shall be sent to the Trademark Office. In
case of mutilation, the mutilated Certificate of Trademark Registration shall
be sent back to the Trademark Office.
Article 28 In the event of any of the acts concerning the use of a
registered trademark as specified in Paragraphs (1), (2) and (3) of Article 30
of the Trademark Law, the administrative department for industry and commerce
shall order the registrant to rectify the situation within a specified period.
If the registrant refuses to rectify the situation, the local administrative
department for industry and commerce shall report the matter to the Trademark
Office for revocation of the registered trademark in question.
Article 29 In the event of the act specified in Paragraph (4) of Article
30 of the Trademark Law, any person may apply to the Trademark Office for the
revocation of the registered trademark in question. The Trademark Office shall
notify the registrant and order the latter to afford proof of use within a
specified period. If no proof is afforded within the time limit or the proof
produced is invalid, the Trademark Office shall revoke the registered
trademark in question.
The use of a trademark mentioned above implies also its use for
advertisement or exhibition.
Article 30 An application for registration of a trademark to be used on
the same or similar goods and which is identical or similar to the trademark
revoked according to the provisions Article 29 of these Rules shall not be
restricted by the provisions of Article 32 of the Trademark Law.
Article 31 In the event of any of the acts specified in Article 31 and
Paragraph (3) of Article 34 of the Trademark Law, the relevant administrative
department for industry and commerce shall order the registrant to rectify the
situation within a specified period. If the circumstances are serious, self-
examination shall be ordered, a notice on the case shall be circulated and a
fine of not more than 20% of the illegal volume of business or not more than
two times that of the illegal gains shall be imposed. Poisonous, harmful and
useless goods shall be destroyed, and the registered trademark used thereon
shall be revoked in accordance with the provisions of the Trademark Law.
Article 32 In the event of any of the acts specified in Paragraphs (1)
and (2) of Article 34 of the Trademark Law and Article 6 of these Rules, the
relevant administrative department for industry and commerce shall prohibit the
advertising publicity, seal up or seize the remaining presentations of the
trademark, and order rectification of the situation within a specified period.
A notice on the case may be circulated, or a fine of not more than 20% of the
illegal volume of business may be imposed in addition, in accordance with
the circumstances.
Article 33 In the event of a violation of the provisions of Article 5 of
the Trademark Law, the relevant administrative department of industry and
commerce shall prohibit the sale of the goods on the market, stop the
advertising publicity, seal up or seize the representations of the trademark,
and may, in accordance with the circumstances, impose concurrently a fine of
not more than 10% of the illegal volume of business.
Article 34 No one shall be allowed to illegally manufacture, sell or buy
trademark representations. In the event of a violation of the above provisions,
the relevant administrative department for industry and commerce shall stop
the manufacturing or the sale, seize the trademark representations and may,
depending on circumstances, impose concurrently a fine of not more than 20%
of the illegal volume of business. In case where a registrant sells its own
trademark representations, the Trademark Office may revoke its registered
trademark. However, if the case is an infringement of the right to exclusive
use of a registered trademark, it shall be dealt with in accordance with the
provisions of Article 43 of these Rules.
Article 35 If a registrant authorizes another person to use its
registered trademark, a trademark licensing contract must be concluded.
The licensor shall, within a specified period, submit copies of the
trademark licensing contract to the local administrative department for
industry and commerce at the county level, which shall in turn transmit a copy
of the contract to the Trademark Office for the record.
In the event of a violation of the above provisions, the relevant
administrative department for industry and commerce shall order the licensor
to rectify the situation within a specified period. In case of a refusal to
rectify the situation, the administrative department for industry and commerce
in the place where the licensor is located shall report the matter to the
Trademark Office for revocation of the licensor’s registered trademark and
seize the trademark representations.
Article 36 If a registrant authorizes another person to use its registered
trademark, the licensee must meet the requirements provided for in Article 2
of these Rules.
If a registrant authorizes another person to use the trademarks for those
goods listed in Article 7 of these Rules, the licensee’s due certification
issued by the relevant departments in accordance with the provisions of
Article 11 of these Rules shall be attached to the submitted copy of the
trademark licensing contract.
Article 37 The Trademark Office shall notify the registrant in writing
if the decision is to revoke the registered trademark in accordance with the
provisions of Articles 30 and 31 of the Trademark Law and Articles 34 and 35
of these Rules, and a copy of the notification shall be sent to the original
department for examination and transmission. The latter shall recall the
Certificate of Trademark Registration and send it back to the Trademark Office.
The Trademark Office shall publicly announce the revocation or
cancellation of the trademark.
Article 38 In the event a registrant applies for the cancellation of its
registered trademark, an Application Form for Cancellation of Trademarks shall
be filed with the Trademark Office and the original Certificate of Trademark
Registration be returned.
Article 39 If a registrant is not satisfied with the decision of the
Trademark Office to revoke its registered trademark, it shall, within 15 days
after receiving notification of revocation, file an Application Form for
Reexamination of Registered Trademark Revocation with the Trademark Review and
Adjudication Board for reexamination.
The Trademark Review and Adjudication Board shall make a final decision
and notify the registrant in writing, and a copy of the notification shall be
sent to the original department for examination and transmission. If the
original revocation decision is cancelled as a result of the final decision,
the matter shall be transferred to the Trademark Office for handling.
Article 40 If a party is not satisfied with a decision (that on
revocation of a registered trademark excepted) made by an administrative
department for industry and commerce in accordance with the provisions of
Articles 31,32,33,34 and 35 of these Rules, it may, within 15 days after
receiving the relevant notification, appeal to the administrative department
for industry and commerce at the next higher level for reexamination. The
administrative department for industry and commerce at the next higher level
shall make a decision after reexamination within 45 days after the receipt of
the appeal. If the party is not satisfied with the decision made after
reexamination concerning the fine party is not satisfied with the decision
made after reexamination concerning the fine made by the department at the
next higher level in accordance with the provisions of Articles 31,32,33 and
34 of these Rules, it may bring a suit in a people’s court within 15 days
after receiving notification of decision. If at the expiration of such a
period, the party has neither complied with the decision nor applied for
reexamination or brought a lawsuit, the relevant administrative department for
industry and commerce shall request the people’s court for enforced execution.
Chapter VI Protection of the Right to Exclusive Use of a Registered
Trademark
Article 41 Any of the following acts shall be an infringement of the
right to exclusive use of a registered trademark referred to in Paragraph (3)
of Article 38 of the Trademark Law:
(1) marketing goods in a way infringing upon another person’s right to
exclusive use of a registered trademark;
(2) using words and designs which are identical or similar to another
person’s registered trademark as the designation or decoration on the same
kind of goods or similar goods, and which may sufficiently mislead the public.
(3) intentionally providing facilities for storage, transport, mailing or
concealing in favour of an infringement of another person’s right to exclusive
use of a registered trademark.
Article 42 Where the right to exclusive use of a registered trademark is
infringed, any person may lodge a charge of the infringement with or report
