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the Standing Committee of the National People’s Congress
Order of the President of the People’s Republic of China
No.49
The Negotiable Instruments Law of the People’s Republic of China which has been adopted at the 13rd meeting of the Standing Committee
of the Eighth National People’s Congress on May 10, 1995 is promulgated now, and shall enter into force as of January 1, 1996.
President of the People’s Republic of China: Jiang Zemin
May 10, 1995
Negotiable Instruments Law of the People’s Republic of China ContentsChapter I General Provisions
Chapter II Bills of Exchange
Section 1 Issue
Section 2 Endorsement
Section 3 Acceptance
Section 4 Guaranty
Section 5 Payment
Section 6 Right of Recourse
Chapter III Promissory Notes
Chapter IV Cheques
Chapter V The Applicable Laws Pertaining Negotiable Instruments in Cases Involving Foreign Elements
Chapter VI Legal Responsibility
Chapter VII Supplementary Provisions
Chapter I General Provisions
Article 1
This Law is formulated for the purpose of standardizing actions concerning negotiable instruments, protecting the legal rights of
parties using negotiable instruments, maintaining economic order in society and promoting the development of the socialist market
economy.
Article 2
This Law applies to all transactions concerning negotiable instruments within the territory of the People’s Republic of China.
The term “negotiable instrument” as used in this Law denotes “bill of exchange”, “promissory note” and “cheque”.
Article 3
Activities concerning instruments shall abide by the laws and administrative regulations and shall not harm public interests.
Article 4
When creating an instrument, the issuing party shall endorse it according to statutory conditions and bear liability for the instrument
according to the items specified therein.
When exercising his rights with regard to an instrument, the bearer shall endorse the instrument and present it according to statutory
procedures.
Other debtors endorsing the instrument shall bear liability for the instrument according to the items specified therein.
The instrument right as referred to in this Law denotes the right of the bearer to claim the specified amount in payment from the
debtor including the right to claim for payment and the right of recourse.
Liability for negotiable instruments as referred to in this Law denotes the obligation of the debtor to pay the sum specified in the
instrument to the bearer.
Article 5
A party to an instrument may authorize an agent to endorse the instrument but must specify the principal-agent relationship on the
instrument.
A person without power of agency who endorses an instrument in the capacity of agent shall bear liability for the instrument; an agent
who goes beyond the limits of his power of agency shall undertake liability for the part of the instrument overstepping the limits
of his powers.
Article 6
The endorsement of an instrument by a person with no capacity for civil conduct or with limited capacity for civil conduct is invalid,
but this does not influence the validity of other endorsements of the instrument.
Article 7
The endorsement of an instrument shall be by signature, seal or both signature and seal.
The endorsement of an instrument by a legal person or other organization which makes use of instruments shall be the official seal
of the legal person or organization accompanied by the endorsement of its legal representative or its authorized agent.
The signature on an instrument must be the name of the party concerned.
Article 8
The sum of money on an instrument shall be specified in both Chinese characters and Arabic numerals; the two figures must be the same,
if the two figures are not the same, the instrument shall be null and void.
Article 9
Items specified in an instrument must conform to the provisions of this Law.
The sum, date and payee recorded in an instrument must not be altered. Instruments which have been altered are invalid.
Other items in an instrument may be altered by the person who originally wrote them, as proof alterations must be endorsed by the
aforementioned.
Article 10
The issue, acquisition and transfer of an instrument shall be made in good faith and shall constitute a real transaction and reflect
the credit-debit relationship.
An instrument can only be acquired in consideration of payment, the corresponding value of which must be agreed by the two parties
to the instrument.
Article 11
Acquisition of an instrument through taxation, inheritance or legacy which may be realized in accordance with law without payment,
shall not be subject to being in consideration of payment. However, the bearers’ rights on the instrument shall not exceed those
of prior parties.
Prior parties refers to other debtors of an instrument who endorsed it prior to its endorsement by a specific signatory or bearer.
Article 12
In cases where an instrument was acquired through fraudulence, theft or coercion, or in cases where the bearer acquired an instrument
through malice while he knew well that the aforementioned circumstances existed, the bearer shall not enjoy the instrument right.
In cases where the bearer through gross negligence acquires an instrument which does not comply with the provisions of this Law, then
the bearer shall not enjoy the instrument right.
Article 13
A debtor of an instrument shall not oppose the bearer on the basis of a dispute between the issuer and the debtor himself or between
the any prior parties to the bearer and the debtor himself. However the exception is in cases where the bearer acquired the instrument
with the foreknowledge that such opposition existed.
A debtor of an instrument may oppose a bearer who had a direct credit-debit relationship with him and did not perform the stipulated
obligation.
Opposition as referred to in this Law denotes the act whereby the debtor of an instrument refuses to carry out his obligations to
the creditor in accordance with the provisions of this Law.
Article 14
Items specified in an instrument must be genuine and cannot be forged or altered. Those who forge or alter the endorsement or other
items in an instrument shall bear legal responsibility.
Endorsements on an instrument which have been forged or altered shall have no impact on the other genuine endorsements thereon.
Where other items in the instrument have been altered, persons who endorsed the instrument before it was altered shall be liable for
the items originally specified in the instrument, persons who signed after it was altered shall be liable for the items specified
after the instrument was altered. In cases where it cannot be determined whether the instrument was endorsed before or after it was
altered, it shall be treated as an instrument which was endorsed before being altered.
Article 15
Where an instrument has been lost, the person who has lost the instrument may promptly notify the payer of the instrument to suspend
payment, except in cases where the payer is not specified in the instrument or when the payer or his agent cannot be identified.
The payer shall temporarily cancel payment when he receives notification of the loss of the instrument.
The person losing the instrument shall in accordance with the law apply to the people’s court for the publication of a public notice
asserting his claim or he can bring an action in the people’s court within three days of notifying the payee to suspend payment or
after the loss of the instrument.
Article 16
The procedure by which the bearer of the instrument exercises his rights or preserves his rights against the debtor shall be carried
out in the business premises of the party concerned during business hours or at their place of residence if no business premises
exist.
Article 17
Rights to an instrument shall cease to be valid if not exercised within the following time limits:
1.
The rights of the bearer of the instrument over the issuer and the acceptor of the instrument cease to be valid two years after the
date of maturity of the instrument. Bills or notes payable on sight become invalid two years after the date of issue;
2.
The rights of the bearer of a cheque over the issuer cease to be valid six months after the date of issue;
3.
The bearer’s right of recourse over prior parties ceases to be valid six months after the date of non-acceptance or non-payment;
4.
The bearer’s right of re-recourse over prior parties ceases to be valid three months after the date of settlement or the commencement
of a lawsuit.
The date of issue and the date of maturity of an instrument shall be set in accordance with the law by the parties to the instrument.
Article 18
A bearer who has lost his rights on instrument because of the expiration of his rights or because the items recorded in the instrument
are not comprehensive may still enjoy civil rights, and may request that the payer or the acceptor refunds the amount equivalent
to that part of the instrument not yet paid.
Chapter II Bills of Exchange
Section 1 Issue
Article 19
A bill of exchange is an instrument signed by the issuer, authorizing the payer to unconditionally pay a certain sum of money to the
payee or the bearer when the bill is presented or at a specified time.
Bills can be classified into bankers’ bills and commercial bills.
Article 20
Issue refers to the act of the issuer signing and issuing the instrument and delivering it to the payee.
Article 21
The issuer of the bill must have an authentic relationship with the payer authorizing payment and must possess reliable funds with
which to pay the sum in the bill.
Bills without consideration shall not be signed or issued to defraud money from banks or other parties of an instrument.
Article 22
A bill must specify the following items:
1.
The word “bill”;
2.
Authorization of unconditional payment;
3.
A fixed sum;
4.
The name of the payer;
5.
The name of the payee;
6.
The date of issue;
7.
The endorsement of the issuer.
A bill shall be null and void if any of the above-mentioned items are not specified therein.
Article 23
The date of payment, place of payment and place of issue, if specified on the bill, shall be legible and unambiguous.
A bill is payable on sight if the date of payment is not specified.
The place of payment, if not specified on a bill, shall be the business premises, domicile or habitual residence of the payer.
The place of issue, if not specified on a bill, shall be the business premises, domicile or habitual residence of the issuer.
Article 24
Items relating to the issue of a bill other than those stipulated by this Law may be specified on a bill, but such items shall have
no effect on the validity of the bill.
Article 25
The date of payment may be specified in either one of the following forms:
1.
Payable on sight;
2.
Payable on a fixed date;
3.
Payable during a fixed period after the date of issue;
4.
Payable during a fixed period after the date of receipt.
The date of payment as specified in the preceding paragraph shall be the date of maturity of the bill.
Article 26
The issuer who signs and issues the bill shall bear liability for its acceptance and payment.
In the event of non-acceptance or non-payment of the bill, the bearer shall be reimbursed the sum and expenses as stipulated in Articles
70 and 71 of this Law.
Section 2 Endorsement
Article 27
The bearer may transfer his rights to the bill to other persons or authorize other persons to exercise some of his rights to the bill.
When the issuer writes the term “non-transferable” on the bill, then it cannot be transferred.
The bearer must endorse and hand over the bill when exercising his rights as stipulated in the first paragraph of this article.
Endorsement refers to the act of putting relevant items in writing and endorsing the back of the bill or an allonge.
Article 28
The person endorsing the bill may use an allonge and attach it to the bill if there is not enough space in the bill for the items.
The first person to write on the allonge shall endorse the conjuncture of the bill and the allonge.
Article 29
An endorsement shall be signed by the person making it and the date of endorsement shall be specified.
An undated endorsement shall be deemed to have been added to the bill before its date of maturity.
Article 30
The name of the person endorsing the bill must be specified when the bill is endorsed so that the rights to the bill are transferred
or to authorize another person to exercise some of the rights to the bill.
Article 31
There shall be an uninterrupted series of endorsement in a bill which is transferred by means of endorsement. The bearer must prove
his rights to the bill by an uninterrupted series of endorsement; a person to whom a bill is transferred by means other than endorsement
or who acquires a bill by other legal means shall provide evidence in accordance with the law showing his rights to the bill.
“An uninterrupted series of endorsement” as referred to in the preceding paragraph denotes that, in the course of the transfer of
an instrument, the endorsement of the person endorsing the transfer of the bill shall be made by the immediate prior endorsee to
acquire the bill.
Article 32
When the bill is transferred by means of endorsement, the subsequent party shall be liable for the authenticity of the endorsement
made by the immediate prior party.
“The subsequent party” denotes other debtors of an instrument who endorse it after its endorsement by a specific party.
Article 33
No conditions can be attached to endorsements. Any conditions attached to endorsements shall have no effect on the bill.
Any endorsements purporting to transfer a part of the amount payable, or to transfer the bill to two or more people separately, shall
be null and void.
Article 34
When the endorser writes the term “non-transferable” on the bill and his subsequent party reendorses and transfers it, the original
endorser shall not bear any responsibility for any guarantees made to the subsequent party’s endorsee.
Article 35
Where an endorsement contains the word “by procuration”, the endorsee shall be enpost_titled to exercise mandated rights to the bill on
the endorser’s behalf. However, the endorsee shall not transfer the rights to the bill by means of re-endorsement.
A bill may be pledged; when the bill is pledged, the endorsement shall contain the term “value in pledge”. The endorsee may exercise
the rights to the bill when realizing the right of pledge according to law.
Article 36
A bill cannot be transferred by means of endorsement when acceptance or payment has been refused or when the time limit for presentation
in order to receive payment has expired, if the bill has been endorsed and transferred, the endorser shall bear liability for the
bill.
Article 37
After the bill has been endorsed and transferred, the endorser shall be liable for guaranteeing the acceptance and payment of the
bill held by the subsequent party. In cases of non-acceptance or non-payment of the bill, the endorser shall compensate the bearer
with the sum and expenses as stipulated in Articles 70 and 71 of this Law.
Section 3 Acceptance
Article 38
Acceptance denotes the act whereby payer of the bill promises to pay the sum of money in the bill at its maturity.
Article 39
Where a bill is payable on a fixed date or within a fixed period after the date of issue, the bearer shall present the bill to the
payer for acceptance before the bill’s date of maturity.
Presenting the bill for acceptance denotes the act whereby the bearer presents the bill to the payer and demands a promise of payment
from the payer.
Article 40
Where a bill is payable during a fixed period after presentation, the bearer shall present the bill to the payer for acceptance within
one month of the date of issue.
Where a bill has not been presented for acceptance within the prescribed period, the bearer shall lose the right of recourse against
prior parties.
Where a bill is payable on sight, it does not need to be presented for acceptance.
Article 41
The payer shall accept or refuse the bill within three days of receiving the bill as presented for acceptance.
On receiving of a bill presented for acceptance by the bearer, the payer shall make out a receipt to the bearer. The receipt shall
be signed and the date on which the bill was presented shall be written thereon.
Article 42
When accepting a bill, the payer shall write the word “accepted” and the date of acceptance on the front of the bill and sign it;
after seeing a bill which is payable during a fixed period, the date of payment shall be specified at the time of acceptance.
Where the date of acceptance is not specified on the bill, it shall be the last day of the period prescribed by the first paragraph
of the preceding article.
Article 43
When accepting a bill, the payer shall accept it unconditionally; if conditions have been added, this is deemed to be a refusal.
Article 44
When the payer has accepted the bill, he shall bear the liability of paying it at maturity.
Section 4 Guaranty
Article 45
The responsibility of guaranteeing the payment of a bill shall be borne by the guarantor.
The guarantor shall be someone other than the debtor of the bill.
Article 46
The guarantor must specify the following items on the bill itself or on an allonge:
1.
The word “guaranteed”;
2.
The name and address of the guarantor;
3.
The name of the person to whom the guaranty is given;
4.
The date of guaranty;
5.
The endorsement of the guarantor.
Article 47
When the guarantor has not specified Item 3 of the preceding article on the bill itself or on an allonge, in cases where the bill
has already been accepted, the person who accepted the bill is he to whom the guaranty is given; in cases where the bill has not
yet been accepted, the guaranty is given to the issuer.
When the guarantor has not specified Item 4 of the preceding article on the bill itself or on an allonge, the date of guaranty shall
be the date of issue.
Article 48
No conditions can be attached to the guaranty; if there should be any conditions attached, these will not affect the liability of
guaranty on the bill.
Article 49
The guarantor shall be responsible for guaranteeing the bearers’ rights to the bill when the bearer has acquired the bill legitimately.
This is with the exception of cases when the debt of the person receiving the guaranty is invalid because of the absence of certain
items from the bill.
Article 50
Where a bill is guaranteed, the guarantor and the person to whom the guaranty is given shall undertake joint liability to the bearer.
In cases where the guaranteed bill has not been paid at its maturity, the bearer is enpost_titled to demand payment from the guarantor,
who shall pay the bill in full.
Article 51
In cases where there are two or more guarantors, they shall undertake joint liability.
Article 52
After the guarantor has paid the debt as stipulated in the bill, the guarantor may exercise his right of recourse as enjoyed by the
bearer against the person to whom the guaranty is given and his prior parties.
Section 5 Payment
Article 53
The bearer shall present the bill for payment within the following time limits:
1.
A bill payable on sight should be presented to the payer within one month of the date of issue;
2.
A bill payable on a fixed date, within a fixed period after the date of issue or within a fixed period after being seen shall be presented
for acceptance within 10 days of the date of maturity.
In cases where the bearer has not presented the bill for payment within the prescribed period as stipulated in the preceding paragraph,
the person accepting the bill or the payer shall remain liable for the payment of the bill after the bearer has explained the situation.
Presentation for payment made to the payer by an authorized bank or clearing system for instruments shall be deemed as presentation
by the bearer.
Article 54
The payer must pay the bill in full on the day when the bearer presents the bill for payment in accordance with the provisions of
the preceding article.
Article 55
The bearer shall sign the bill and give it to the payer after receiving payment. In cases where the bearer authorizes a bank to receive
payment on his behalf, the bill may be deemed as having been signed for when the authorized bank has credited the collected sum to
the bearer’s account.
Article 56
The bank authorized by the bearer to receive payment shall be liable only for crediting the sum on the bill to the bearer’s account
according to the items specified in the bill.
The bank authorized by the payer to make payment shall be liable only for paying the sum on the bill from the payer’s account according
to the items specified in the bill.
Article 57
When paying a bill, the payer or his agent shall check the continuity of the series of endorsement, as well as checking the legitimacy
of the identification of the person presenting the bill, or the validity of that person’s certificates.
In cases where the payer or his agent make a payment out of malice or with gross negligence, they alone shall bear liability.
Article 58
In cases where the payer pays a bill before maturity which is payable on a fixed day or on sight within a fixed period, he alone shall
bear liability.
Article 59
When the sum on a bill is expressed in a foreign currency, the sum payable shall be paid in Renminbi according to the market rate
of exchange on the day of payment.
Where parties to a bill have stipulated the currency in which the bill is to be paid, the latter agreement shall be followed.
Article 60
Once the payer pays the bill in full, all debtors shall be discharged from liability.
Section 6 Right of Recourse
Article 61
When the payment of a bill has been refused at its date of maturity, the bearer may exercise the right of recourse against the endorsers,
the issuer and other debtors of the bill.
Before the maturity of a bill, the bearer may also exercise the right of recourse under any of the following circumstances:
1.
In cases when the payment of the bill has been refused;
2.
In cases when the acceptor or the payer dies or flees;
3.
In cases when the acceptor or the payer has been declared bankrupt according to the law or has been ordered to cease business activities
due to their violations of the law.
Article 62
When exercising the right of recourse, the bearer shall be able to provide proof that acceptance or payment was refused.
In cases when the bearer’s presentation of the bill for acceptance or payment has been refused, the acceptor or the payer must provide
proof of their refusal or a statement noting their reasons for non-payment or non-acceptance. Otherwise, the acceptor or the payer
shall bear the civil liabilities arising therefrom.
Article 63
In cases when the bearer is unable to obtain proof of refusal to accept or pay the bill because of the death or flight of the acceptor
or payer or other causes, the bearer may procure other relevant proof according to the law.
Article 64
In cases when the acceptor or the payer has been declared legally bankrupt by the people’s court, relevant judicial documents from
the people’s court shall be valid as proof of refusal to accept or pay the bill.
In cases when the acceptor or the payer has been ordered to cease business activities because of his violations of the law, the punitive
decision of the relevant administrative authorities shall be valid as proof of refusal to accept or pay the bill.
Article 65
When the bearer cannot provide proof of refusal to accept or pay the bill or a statement noting reasons for non-payment or any other
lawful proof within the prescribed period, he shall lose the right of recourse against his prior parties. However, the acceptor or
the payer shall still remain liable to the bearer.
Article 66
The bearer shall give written notice of the refusal to accept or pay to his prior party within three days of receiving relevant certification
denoting non-acceptance or non-payment; the prior party shall notify his prior party of the notice he has received within three days
of receiving the notice. The bearer may also provide written notice to all debtors of the bill at the same time.
In cases when the bearer has failed to provide written notice in accordance with the time specifications noted in the preceding paragraph,
the bearer may still exercise his right of recourse. Any party who fails to give notice within the prescribed period shall be liable
to compensate his prior parties or the issuer for the losses caused by his delayed notice, but the sum of the damages shall not exceed
the sum of the bill.
If the notice has been posted to the legal address or to an agreed address within the prescribed period, then the notice is deemed
to have been issued.
Article 67
The written notice, made out according to the first paragraph of the preceding article, shall specify the main items written on the
bill and shall clarify the fact that the said bill has been returned.
Article 68
The issuer, endorser, acceptor and guarantor of a bill are jointly liable to the bearer.
The bearer may exercise the right of recourse against any one or all of the persons mentioned in the preceding paragraph without being
required to observe the order in which the debtors have become bound.
The bearer who has exercised the right of recourse against one or more of the debtors of the bill, may still exercise these rights
against the other debtors. When a person who is being pressed for payment compensates the debt, they shall enjoy the same rights
as the bearer.
Article 69
In cases when the bearer is the issuer, he shall have no right of recourse against the bearer’s prior parties. In cases when the bearer
is the endorser, he shall have no right of recourse against the endorser’s subsequent parties.
Article 70
When exercising the right of recourse, the bearer may recover the following expenses from the person against whom he is exercising
the right of recourse:
1.
The amount of the unpaid bill;
2.
Interest on this sum at the rate stipulated by the People’s Bank of China from the date of maturity of the bill or the date upon which
it was presented for payment to the date of payment;
3.
The expenses for the relevant proof of non-payment or non-acceptance and the expenses incurred by issuing notices.
When the person against whom the right of recourse is exercised has settled the debt, the bearer shall hand over the bill and the
relevant proof of non-payment or non-acceptance, as well as a receipt detailing the expenses and interest received.
Article 71
When the person against whom the right of recourse is exercised has settled the debt in accordance with the provisions of the preceding
article, he may exercise the right of re-recourse against the other debtors and recover the following expenses;
1.
The entire sum paid;
2.
Interest on the said sum at the rate prescribed by the People’s Bank of China from the day when the payment was made to the day of
reimbursement;
3.
The expenses incurred by issuing notices.
When the person exercising the right of re-recourse has been reimbursed, he shall hand over the bill and the relevant proof of non-payment
or non-acceptance as well as a receipt detailing the expenses and interest received.
Article 72
When a person against whom the right of recourse is being exercised has settled the debt according to the stipulations of the two
preceding articles, he shall be discharged from any liabilities.
Chapter III Promissory Notes
Article 73
A promissory note is an instrument issued and signed by the issuer promising to unconditionally pay the payee or bearer a set sum
of money when the note is presented.
A promissory note as referred to in this Law denotes a banker’s promissory note.
Article 74
The issuer of a note must possess reliable financial sources to pay the sum of money in the note and to guarantee payment.
Article 75
The credentials of the note’s issuer shall be examined and approved by the People’s Bank of China, who shall also stipulate specific
administrative measures therefor.
Article 76
A note must specify the following items:
1.
The word “promissory note”;
2.
A promise of unconditional payment;
3.
A set sum;
4.
The name of the payee;
5.
The date of issue;
6.
The endorsement of the issuer.
A note shall be null and void if any one of the above-mentioned items is not specified therein.
Article 77
The place of payment and place of issue, if specified on the note, shall be legible and unambiguous.
The place of payment, if not specified on the note, shall be the business premises of the issuer.
The place of issue, if not specified on the note, shall be the business premises of the issuer.
Article 78
The issuer of a note must bear liability for payment when the bearer presents the note.
Article 79
The time limit for the payment of a note shall not exceed two months from the date of issue.
Article 80
In cases when the bearer of a note fails to present the note for payment within the prescribed period, he shall lose the right of
recourse against prior parties other than the issuer.
Article 81
In addition to the provisions of this chapter, the provisions of Chapter II of this Law pertaining to bills apply to the endorsement,
guaranty and payment of notes and the exercise of the right of recourse.
In addition to the provisions of this chapter, the provisions of Article 24 of this Law pertaining to bills apply to the act of issuing
notes.
Chapter IV Cheques
Article 82
A cheque is an instrument issued and signed by the issuer authorizing any bank or any other financial institution whose scope of business
involves depositing cheques to unconditionally pay a certain sum of money to the payee or to the bearer at sight.
Article 83
When opening an account in which cheques can be deposited with a bank, the applicant must use his real name and must submit legitimate
certification to prove his identity.
When opening an account in which cheques can be deposited with a bank and asking for a cheque book, the applicant must enjoy financial
credibility and must deposit a certain amount of funds therein.
When opening an account in which cheques can be deposited with a bank, the applicant shall leave a specimen si
| Category |
INTELLECTUAL PROPERTY RIGHT |
Organ of Promulgation |
The State Council |
Status of Effect |
In Force |
| Date of Promulgation |
1995-04-23 |
Effective Date |
1995-05-15 |
|
|
|
Official Reply of the State Council Concerning Papers Furnished As Attachments to Applications for Trademark Registration (Attached
With the Third Revision of the Rules for the Implementation of the Trademark Law of the People’s Republic of China) |
Appendix: RULES FOR THE IMPLEMENTATION OF THE TRADEMARK LAW OF THE
Chapter I General Provisions
Chapter II Applications for Trademark Registration
Chapter III Examination of Trademark Registration
Chapter IV Modification, Assignment, Renewal and
Chapter V Administration of the Use of Trademarks
Chapter VI Protection of Exclusive Rights to Use a Registered Trademark
Chapter VII Supplementary Provisions
(April 23, 1995)
The State Administration for Industry and Commerce:
We are in receipt of your Report for Instruction Concerning Papers
Furnished as Attachments to Applications for Trademark Registration. The
State Council approves the proposal that the original Certificate of
Trademark Registration be no longer required when an application for
modification, assignment or renewal concerning a registered trademark
is submitted. For that problem involves the revision of the Rules for
the Implementation of the Trademark Law of the People’s Republic of China
(hereinafter referred to as the Rules for the Implementation of the
Trademark Law), the official reply is hereby given as follows:
1. The first paragraph, Article 20 of the Rules for the Implementation
of the Trademark Law shall be revised as: “When applying for modification of
name, applicants shall submit an Application for Modification of the Name of
Trademark Registrant and verification of the modification to the Trademark
Office. Following examination and approval, the Trademark Office shall
issue a relevant certificate to the applicant, and publish said
modifications.” The second paragraph shall be revised as: “When applying for
modifications of address or other relevant matters related to a trademark
registration, applicants shall submit an Application for Modification of the
Address of the Trademark Registrant or an Application for Modification of
Other Matters Related to a Registered Trademark, as well as verification
of modifications to the Trademark Office. Following examination and approval,
the Trademark Office shall issue a relevant certificate to the applicant, and
publish said modifications.”
2. The first paragraph, Article 21 of the Rules for the Implementation
of the Trademark Law shall be revised as: “When applying for the assignment
of registered trademarks, assignors and assignees shall jointly submit an
Application for the Assignment of Registered Trademark to the Trademark
Office. The assignee shall complete application formalities required for
applying for assignment of a registered trademark. The assignee shall fulfill
all qualifications outlined in Article 2 of these Rules. Upon approving the
assignment of trademark, the Trademark Office shall issue a relevant
certificate to the assignee, and publish notification of the assignment.
3. The first paragraph, Article 22 of the Rules for the Implementation of
the Trademark Law shall be revised as: “When applying for renewal of a
trademark registration, the registrant shall submit an Application for Renewal
of Trademark Registration to the Trademark Office, accompanied by five
prototypes of the trademark. Following examination and approval of the
renewal, the Trademark Office shall issue a relevant certificate to the
registrant, and publish notification of the renewal. the Trademark Office
shall reject any renewal applications which contravene relevant provisions
of the Trademark Law.
4. Article 20 and 21, as revised, of the Rules for the Implementation
of the Trademark Law shall become effective on the date of May 15, 1995.
5. Article 22, as revised, of the Rules for the Implementation of the
Trademark Law shall become effective on November 1, 1998. However, with
respect to a registered trademark whose period of validity expires before
November 1, 1998 and whose extension period expires before April 30, 1998,
applications for renewal filed within the extension period shall be handled
in accordance with the original provisions of this Article as not revised.
Clauses 1, 2 and 4 of this official reply shall be promulgated by the
State Administration for Industry and Commerce before May 15, 1995. Clauses 3
and 5 shall be promulgated by the State Administration for Industry and
Commerce before November 1, 1998.
Appendix: RULES FOR THE IMPLEMENTATION OF THE TRADEMARK LAW OF THE
PEOPLE’S REPUBLIC OF CHINA (Successively amended with the approval of the
Sate Council on January 3, 1988, July 15, 1993 and April 23, 1995, and
promulgated by Decree No.31 of the State Administration for Industry and
Commerce on May 12, 1995)
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 Applicants for trademark registration must be enterprises,
institutions, social organizations, self-employed industrialists or
businessmen, individual partnerships established in accordance with the law,
foreigners or foreign enterprises referred to in Article 9 of the Trademark
Law.
Provisions in the Rules concerning trademarks for goods shall also apply
to service trademarks.
Article 3 When applying for initial registration, assignments, renewals,
name or address changes, replacement of the certificate of trademark
registration or other related matters, the applicant may either entrust the
process to a trademark agency approved by the State Administration for
Industry and Commerce, or otherwise personally handle the matter.
When foreigners or foreign enterprises apply for trademark registration
in China, or when dealing with related trademark matters, all applications or
other related items shall be completed by an agency designated by the State
Administration for Industry and Commerce.
Applications filed for international registration shall be submitted in
accordance with the “Madrid Agreement Concerning the International
Registration of Marks”.
Article 4 Fees shall be paid in accordance with relevant stipulations for
applications, assignment, renewal, alterations, replacement of certificates
and examination of trademark registration, and related matters.
Article 5 The Trademark Office of the State Administration for Industry
and Commerce (hereinafter referred to as the Trademark Office) shall establish
and maintain a Trademark Register which records registered trademarks and
relevant registration matters.
The Trademark Office shall edit and issue the Trademark Gazette, which
announces trademark registrations and related matters.
Article 6 In accordance with Article 3 of the Trademark Law, all
collective and certification marks approved and registered with the Trademark
Office shall be protected by law.
Procedures for the registration and administration of collective and
certification marks shall be separately outlined by the State Administration
for Industry and Commerce, in conjunction with related departments of the
State Council.
Article 7 All pharmaceuticals for human consumption and tobacco products
listed by the State and published by the State Administration for Industry and
Commerce shall obtain a registered trademark.
Other goods required to obtain a registered trademark in accordance with
the stipulations of the State shall be published by the State Administration
for Industry and Commerce.
Article 8 The State Administration for Industry and Commerce shall
establish a Trademark Review and Adjudication Board responsible for final
decisions and adjudications on matters submitted for examination in
accordance with provisions of the Trademark Law and these Rules.
Chapter II Applications for Trademark Registration
Article 9 When applying for registration of a trademark, applicants shall
file the application with respect to each class of goods as outlined in the
published Classification of Goods. Each trademark registration application
submitted to the Trademark Office must be accompanied by an Application
for Trademark Registration, 10 prototypes of the requested trademark
(prototypes of colored trademarks must be submitted in the exact color), and
one black and white copy of the design blueprint.
Prototypes of the trademark must be clearly discernible adhesive images
printed on durable paper with a smooth finish, or otherwise be a photograph.
The length or width shall be between 5 to 10 centimeters.
Article 10 Application forms for trademark registration and related
papers shall be completed in pen and ink, writing brush and ink, or typed.
All information must be clearly written or typed.
The name, stamp or seal of the applicant applying for trademark
registration shall be the same as that approved or registered. The subject
item shall not go beyond the approved or registered scope of business. The
designation of items shall be filed in accordance with the table for the
classification of goods. A description must be attached for items not listed
in the aforementioned table.
Article 11 Applications for trademark registration of pharmaceuticals for
human consumption must bear an attached certificate issued by the
administrative department for public health.
Applications for trademark registration of cigarettes, cigars or packed
cut tobacco must bear attached papers indicating certified production approval
by competent State authorities responsible for tobacco products.
Applications for trademark registration of other goods which require a
registered trademark in accordance with the stipulations shall bear attached
papers certifying the approval of relevant competent departments.
Article 12 The date of application for registration of a trademark shall
be the date the Trademark Office receives the application form and related
papers. Where the applicant has completed all required application
procedures and has completed the application form and related papers in
accordance with relevant stipulations, the Trademark Office shall assign the
application a file number and issue a Notification of Acceptance. However,
should the applicant fail to properly complete necessary procedures or in some
way fail to complete 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.
Where application procedures are basically complete or the
application form and the related papers are basically in conformity with the
relevant stipulations, but there is a need for the applicant to provide
necessary supplementary information or make corrections thereto, the Trademark
Office shall notify the applicant to submit said information or make said
changes and will require the latter to resubmit the supplementary or corrected
application to the Trademark Office within fifteen days of receipt of the
notification. The filing date shall be reserved if requested supplementary
information of or corrected application is resubmitted to the Trademark
Office within the specified time limit. However, in case of failure to submit
requested supplementary information or corrected application by the expiration
of the specified period or thereafter, the application form shall be returned
to the applicant, and no date of application shall be reserved.
Article 13 Where two or more applicants apply for registration of an
identical or a similar trademark for the same or similar items on the same
day, they shall within 30 days after receiving notification from the Trademark
Office furnish requested proof of the dates on which they began using their
respective trademarks. Where the use of the trademark began on the same
date, or in other cases when a trademark is not yet in use, applicants shall
be required to settle the matter through consultations, and further to submit
their written agreement to the Trademark Office within 30 days. If no
agreement can be reached within said 30 day period, the applicants in
question shall draw lots to determine trademark rights. The Trademark Office
shall either preside over the process, or shall otherwise adjudicate the
matter.
Article 14 Applicants for trademarks shall submit a Power of Attorney
authorizing a trademark agency to file required applications for the
registration of trademarks, or for all other matters arising concerning said
trademarks. The Power of Attorney shall indicate content and competent
authorization. In addition, in cases when the applicant is a foreigner or
foreign enterprise, the Power of Attorney shall clearly indicate the
nationality of the party granting authorization.
Foreigners or foreign enterprises shall use the Chinese language when
applying for trademark registration or when handling related trademark
matters. Notarization and authentication procedures for Powers of Attorney
and relevant certificates shall be completed in accordance with the principle
of reciprocity. Chinese translations shall be attached to the completed
application form and all related papers submitted in a foreign language.
Article 15 The Trademark Office maintains the option to review claims for
priority in all applications 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, in accordance with the Trademark
Law, examine all applications accepted. Following the prescribed examination,
distinctive trademarks which are in conformity with relevant provisions of
the Trademark Law, shall receive preliminary approval from the Trademark
Office and published in the Trademark Gazette. The Trademark Office shall
send a Notification of Rejection to all applicants submitting rejected
applications.
In cases where requests for modifications to applications for trademark
are deemed incomplete, the Trademark Office shall send an Examination Advice
form to the applicant and require the latter make necessary modifications
within fifteen days of receipt of said notification. If applicants fail to
submit requested modifications by the expiration date of the specified period,
or modifications are submitted at a date beyond the time limit, or modified
applications still fail to conform with the relevant provisions of the
Trademark Law, the Trademark Office shall reject the application and send a
Notification of Rejection to the applicant.
Article 17 When applying for review of rejected trademarks, applicants
shall, within fifteen days of receipt of the notification of rejection, submit
an Application for Review of a Rejected Trademark to the Trademark Review and
Adjudication Board. The review application must be accompanied by the original
Application for Trademark Registration, ten prototypes of the original
trademark, one black and white copy of the design and the Notification of
Rejection.
The Trademark Review and Adjudication Board shall render a final decision
and notify the applicant with a written reply. Thereafter, trademarks
receiving preliminary approval shall be transferred to the Trademark Office
for processing.
Article 18 Parties contesting a trademark (hereinafter referred to as
Party B) which, after examination, has received preliminary approval and has
been published in the Trademark Gazette, shall submit two copies of the
Application for Trademark Opposition to the Trademark Office. The Application
for Trademark Opposition shall indicate both the page number and the issue
number of the Trademark Gazette in which the contested trademark was
published, as well as the number of the preliminary approval. The Trademark
Office shall send one copy of the Application for Trademark Opposition to
the contested party (hereinafter referred to as Party A), requesting a
rebuttal within thirty days of receipt of the notification. An adjudication
will then be made on the basis of facts and relevant information submitted by
the opposing parties. In the absence of a response from Party A by the
expiration date of the specified period, the Trademark Office shall render an
adjudication thereon and notify interested parties of the decision.
Announcements of registered trademarks published in the Trademark Gazette
prior to final adjudication and entry of force of contested trademarks shall
be null and void.
Article 19 Interested parties dissatisfied with the adjudication of the
Trademark Office concerning contested trademarks may, within fifteen days of
receipt of the notification of adjudication, apply for review by submitting
two copies of Application for Review of a Contested Trademark to the Trademark
Review and Adjudication Board.
The Trademark Review and Adjudication Board shall make a final
adjudication, provide interested parties with written notification and
transfer the case to the Trademark Office for relevant processing.
In cases when an opposition to the issuance of a trademark is considered
inappropriate, the Trademark Office shall, after the entry into force of the
adjudication concerning a contested trademark, approve the registration of
the trademark involved therein.
Chapter IV Modification, Assignment, Renewal and
Adjudication of Disputes Involving Registered Trademarks
Article 20 When applying for modification of name, applicants shall
submit an Application for Modification of the Name of Trademark Registrant
and verification of the modification to the Trademark Office. Following
examination and approval, the Trademark Office shall issue a relevant
certificate to the applicant, and publish said modifications.
When applying for modifications of address or other relevant matters
related to trademark registration, applicants shall submit an Application for
Modification of the Address of the Trademark Registrant or an Application for
Modification of Other Matters Related to a Registered Trademark, as well as
verification of modifications to the Trademark Office. Following examination
and approval, the Trademark Office shall issue a relevant certificate to the
applicant, and publish said modifications.
When applying for modifications of names or addresses, registrants shall
follow the same modification procedures in respect to all registered
trademarks.
Article 21 When applying for the assignment of registered trademarks,
assignors and assignees shall jointly submit an Application for the Assignment
of Registered Trademark to the Trademark Office. The assignee shall complete
application formalities required for applying for assignment of a registered
trademark. The assignee shall fulfill all qualifications outlined in Article 2
of these Rules. Upon approving the assignment of trademark, the Trademark
Office shall issue a relevant certificate to the assignee, and publish
notification of the assignment.
When applying for the assignment of a registered trademark, the
registrant shall simultaneously complete the same assignment procedure in
respect to all identical trademarks, which are either identical with or
similar to said registered trademark with respect to both the same or
similar goods. When a registered trademark is assigned in respect to such
goods as outlined in Article 7 of these Rules, the assignee shall, in
accordance with the provisions of Article 11 of these Rules, furnish the
Trademark Office with a certificate issued by the competent department
concerned.
Where an application for the assignment of a registered trademark
might in any way mislead the public, create confusion or engender any other
type of inappropriate influence, the Trademark Office shall reject approval
thereof.
Article 22 When applying for renewal of a trademark registration, the
registrant shall submit an Application for Renewal of Trademark Registration
to the Trademark Office, accompanied by five prototypes of the trademark.
Following examination and approval of the renewal, the Trademark Office shall
issue a relevant certificate to the applicant, and publish notification of
the renewal. The Trademark Office shall reject any renewal applications which
contravene relevant provisions of the Trademark Law.
The period of validity of a renewed trademark registration shall be
calculated from the day following the expiration of the previous period of
validity of said trademark.
Article 23 Applicant dissatisfied with the decision of the Trademark
Office to reject an application for assignment or renewal may, within fifteen
days of receipt of the notification of rejection, apply for review by
submitting an Application for Review of a Rejected Assignment or an
Application for Review of a Rejected Renewal, to the Trademark Review and
Adjudication Board. Applications should be accompanied by the original
Application for Assignment of Registered Trademark or Application for Renewal
of Trademark Registration, and the relevant Notification of Rejection.
The Trademark Review and Adjudication Board shall render a final decision
and notify the applicant of the same in writing. Board approvals of the
assignment or renewal shall be transferred to the Trademark office for
corresponding processing.
Article 24 Trademark registrants wishing to dispute the registered
trademark of a second party shall, within one year from the date of
announcement of the registered trademark of the latter in the Trademark
Gazette, submit two copies of the an Application for Adjudication of a
Disputed Trademark to the Trademark Review and Adjudication Board.
Upon making a final adjudication of whether to maintain or cancel the
disputed registered trademark, the Trademark Review and Adjudication Board
shall notify interested parties of the decision in writing, and shall transfer
the case to the Trademark Office for corresponding processing. If the grounds
for cancellation involve only certain registered components, trademark
registration for components involved therein shall be cancelled. If
adjudication results in cancellation, the proprietor of the disputed trademark
shall, within fifteen days of receipt of the notification of adjudication,
return the original Certificate of Trademark Registration to the Trademark
Office.
Article 25 Paragraph 1, Article 27 of the Trademark Law outlines the
following fraudulent or unfair acts committed in the acquisition of a
trademark registration:
(1) Fabricating, withholding the truth or forging an application and
related registration documents;
(2) Violating the principles of honesty and full faith and credit to
reproduce, counterfeit or translate the well-known trademark of another party
in the registration;
(3) Acquiring a trademark registration in the name of the trademark agent,
but without the authorization of the trademark proprietor who has entrusted
the registering party;
(4) Infringing on any prior legal right of another party in the
registration; and
(5) Using any other unfair means to acquire a registration.
In accordance with Paragraph 1, Article 27 of the Trademark Law, trademark
registrants dissatisfied with the decision of the Trademark Office to cancel a
trademark registration may, within fifteen days of receipt of the notification
of the decision, apply for review by submitting an Application for Review of
the Cancellation of an Improperly Registered Trademark to the Trademark
Review and Adjudication Board. The Trademark Review and Adjudication Board
shall render a final decision thereon, notify the applicant in writing and
transfer the case to the Trademark Office for the corresponding processing.
Any organization or individual claiming that a trademark has been
improperly registered may apply for adjudication by submitting two copies of
an original Application for the Cancellation of Improperly Registered
Trademark to the Trademark Review and Adjudication Board. The Trademark
Review and Adjudication Board shall render a final adjudication thereon,
notify interested parties of the decision in writing, and transfer the case
to the Trademark Office for the corresponding processing.
The Trademark Office shall publish notification of the cancellation of
improperly registered trademarks. The trademark registrant in question shall,
within fifteen days of receipt of the notification of the decision or
adjudication, return the original Certificate of Trademark Registration to
the Trademark Office.
Where a registered trademark is cancelled in accordance with
Paragraph 1 and Paragraph 2, Article 27, of the Trademark Law, exclusive use
rights shall be deemed invalid from the registered date. In cases when
registered trademarks have been cancelled in accordance with a decision or
adjudication, there shall be no recourse concerning any such judgement or
orders concerning trademarks involving infringement cases adjudicated and
enforced by people’s courts, or for any such decisions rendered and enforced
by the administrative authority for industry and commerce, as well as any such
trademark assignments or trademark licensing contracts in place prior to said
cancellation. However, compensation shall be paid should the bad faith actions
of a trademark registrant result in damages to any other party.
Chapter V Administration of the Use of Trademarks
Article 26 Registered trademarks in use shall carry the indication of
” ” (registered trademark – the editor) or the registration sign of
( ) (registered – the editor) or (R). Where it is inconvenient for a
commodity to bear such indications or signs, accompanying packaging or
description and other attachments shall be so marked.
Article 27 Where a Certificate of Trademark Registration is lost
or damaged, the trademark registrant must apply for reissuance thereof. The
trademark registrant shall submit an Application for Reissuance of a
Certificate of Trademark Registration to the Trademark Office, accompanied by
five prototypes of the registered trademark. When a Certificate of Trademark
Registration is lost, the trademark registrant shall publish the loss thereof
in the Trademark Gazette. A damaged Certificate of Trademark Registration
shall be returned to the Trademark Office.
Where any person commits any act of forging or altering a
Certificate of Trademark Registration, the local administrative authority for
industry and commerce shall, in accordance with the seriousness of the case,
impose a fine not exceeding 20,000 RMB Yuan, and shall seize all copies of
the forged or altered Certificate of Trademark Registration.
Article 28 Where a person is found to have committed any act
referred to in Items (1), (2) and (3) of Article 30 of the Trademark Law, the
administrative authority for industry and commerce shall order the trademark
registrant to rectify the situation within a specified period. If the
registrant refuses to undertake rectification, the administrative authority
for industry and commerce in the relevant location shall submit the case to
the Trademark Office for cancellation of the registered trademark.
Article 29 Where any person has committed acts referred to in
Item (4) of Article 30 of the Trademark Law, any other interested party may
apply to the Trademark Office for cancellation of the registered trademark in
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The State Administration of Taxation
Circular of the State Administration of Taxation on the Taxation of Undertaking Contracted Project and Offering the Labor Service
by the Foreign Enterprises
GuoShuiFa [1995] No.197
October 26, 1995
The local tax bureaus of provinces, autonomous regions, municipalities directly under the Central Government and municipalities separately
listed on the State plan:
Now the relative issues how to levy the tax of income from the undertaking of contracted project and offering the labor services within
the territory of China by the foreign enterprises should be clarified as follows:
I.
The foreign enterprises that have signed the sales contract of machinery and equipment and simultaneously offer the labor services
such as equipment installation, assembling, technology training, guide and supervision and etc. should pay the tax of income obtained
from service charge according to the law of tax. if labor service charge is not listed in the sales contract or is fixed an unreasonable
price, the taxation institutions should define the income of labor services by the foreign enterprises according to the actual conditions
and calculate and levy the sales tax and income tax of enterprises in principle of no less than 5% of total cost of the contract.
II.
The foreign enterprises, undertaking contracted project and offering the labor service within the territory of China, whose corporate
income tax is imposed at the checked profit rate, should be checked the profit rate with reference to profit level of the same trade
and imposed the corporate income tax at hereinabove checked profit rate in principle of not less than 10% income deducted of the
cost of contract transfer and cost of the equipment and material purchase and manufacture on the commission basis. Subparagraphs
1,2 of Article 1 of the Interim Provisions of the Ministry of Finance on Levying the Consolidated Industrial and Commercial Tax
and Enterprise Income Tax of the Foreign Enterprises Undertaking Contracted Project and Offering the Labor Service (CaiShuiZi [1983]
No.149) and Circular of the Ministry of Finance on Computing and Levying Tax on the Income of Contracted Project Partially Deducted
of the Cost of the Equipment and Material Purchase and Manufacture on the Commission Basis by the Foreign Enterprises Undertaking
Contracted Project and Offering the Labor Service (CaiShuiZi [1987] No.134) should be followed.
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