(Adopted at the 24th Session of the Standing Committee of the Fifth National People's Congress on August 23, l982, and amended according to the "Decision on the Revision of the 'Trademark Law of the People's Republic of China ' " adopted at the 30th Session of the Standing Committee of the Seventh National People's Congress on February 22, 1993)
Chapter
I
General Provisions
Article
1.This
Law is enacted for the purposes of improving the administration of
trademarks, protecting the exclusive right to use a trademark, and
of encouraging producers to guarantee the quality of their goods and
maintain the reputation of their trademarks, with a view to protecting
consumers' interests and to promoting the development of socialist
commodity economy.
Article 2.The Trademark Office of the administrative
authority for industry and commerce under the State Council shall
be responsible for the registration and administration of trademarks
throughout the country.
Article 3.A registered trademark means a trademark
that has been approved and registered by the Trademark Office. The
trademark registrant shall enjoy an exclusive right to use the trademark,
which shall be protected by law.
Article 4.Any enterprise, institution, or individual
producer or trader, intending to acquire the exclusive right to use
a trademark for the goods produced, manufactured, processed, selected
or marketed by it or him, shall file an application for the registration
of the goods trademark with the Trademark Office.
Any enterprise, institution, or individual producer or trader, intending
to acquire the exclusive right to use a service mark for the services
provided by it or him, shall file an application for the registration
of the service mark with the Trademark Office.
The provisions made in this Law concerning goods trademarks shall
apply to service marks.
Article 5.As for any of such goods, as prescribed
by the State, that must bear a registered trademark, a trademark registration
must be applied for. Where no trademark registration has been granted,
such goods cannot be sold on the market.
Article 6.Any user of a trademark shall be responsible
for the quality of the goods in respect of which the trademark is
used. The administrative authorities for industry and commerce at
different levels shall, through the administration of trademarks,
exercise supervision over the quality of the goods and shall stop
any practice that deceives consumers.
Article 7.Any word, device or their combination
that is used as a trademark shall be so distinctive as to be distinguishable.
Where a registered trademark is used, it shall carry the indication
of "Registered Trademark" or a sign indicating that it is
registered.
Article 8.In trademarks, the following words or
devices shall not be used:
(1) those identical with or similar to the State name, national flag,
national emblem, military flag, or decorations, of the People's Republic
of China;
(2) those identical with or similar to the State names, national flags,
national emblems or military flags of foreign countries;
(3) those identical with or similar to the flags, emblems or names,
of international intergovernmental organizations;
(4) those identical with or similar to the symbols, or names, of the
Red Cross or the Red Crescent;
(5) those relating to generic names or designs of the goods in respect
of which the trademark is used;
(6) those having direct reference to the quality, main raw materials,
function, use, weight, quantity or other features of the goods in
respect of which the trademark is used;
(7) those having the nature of discrimination against any nationality;
(8) those having the nature of exaggeration and fraud in advertising
goods; and
(9) those detrimental to socialist morals or customs, or having other
unhealthy influences.
The geographical names as the administrative divisions at or above
the county level and the foreign geographical names well-known to
the public shall not be used as trademarks, but such geographical
names as have otherwise meanings shall be exclusive. Where a trademark
using any of the above-mentioned geographical names has been approved
and registered, it shall continue to be valid.
Article 9.Any foreigner or foreign enterprise intending
to apply for the registration of a trademark in China shall file an
application in accordance with any agreement concluded between the
People's Republic of China and the country to which the applicant
belongs, or according to the international treaty to which both countries
are parties, or on the basis of the principle of reciprocity.
Article 10.Any foreigner or foreign enterprise intending
to apply for the registration of a trademark or for any other matters
concerning a trademark in China shall entrust any of such organizations
as designated by the State to act as his or its agent.
Chapter
II
Application for Trademark Registration
Article
11.An applicant for the registration of a trademark shall, in a form,
indicate, in accordance with the prescribed classification of goods,
the class of the goods and the designation of the goods in respect
of which the trademark is to be used.
Article 12.Where any applicant intends to use the
same trademark for goods in different classes, an application for
registration shall be filed in respect of each class of the prescribed
classification of goods.
Article 13.Where a registered trademark is to be
used in respect of other goods of the same class, a new application
for registration shall be filed.
Article 14.Where any word or device of a registered
trademark is to be altered, a new registration shall be applied for.
Article 15.Where, after the registration of a trademark,
the name, address or other registered matters concerning the registrant
change, an application regarding the change shall be filed.
Chapter
III
Examination for and Approval of Trademark Registration
Article
16.Where a trademark the registration of which has been applied for is
in conformity with the relevant provisions of this Law, the Trademark
Office shall, after examination, preliminary approve the trademark
and publish.
Article 17.Where a trademark the registration of
which has been applied for is not in conformity with the relevant
provisions of this Law, or it is identical with or similar to the
trademark of another person that has, in respect of the same or similar
goods, been registered or, after examination, preliminary approved,
the Trademark Office shall refuse the application and shall not publish
the said trademark.
Article l8.Where two or more applicants apply for
the registration of identical or similar trademarks for the same or
similar goods, the preliminary approval, after examination, and the
publication shall be made for the trademark which was first filed.
Where applications are filed on the same day,the preliminary approval,
after examination, and the publication shall be made for the trademark
which was the earliest used, and the applications of the others shall
be refused and their trademarks shall not be published.
Article 19.Any person may, within three months from
the date of the publication, file an opposition against the trademark
that has, after examination, been preliminary approved. If no opposition
has been filed, or if it is decided that the opposition is not justified,
the registration shall be approved, a certificate of trademark registration
shall be issued and the trademark shall be published. If it is decided
that the opposition is justified, no registration shall be approved.
Article 20.The Trademark Review and Adjudication
Board, established under the administrative authority for industry
and commerce under the State Council, shall be responsible for handling
trademark disputes.
Article 21.Where the application for registration
of a trademark is refused and no publication of the trademark is made,
the Trademark Office shall notify the applicant of the same in writing.
Where the applicant is dissatisfied, he may,within fifteen days from
receipt of the notification, apply for a review. The Trademark Review
and Adjudication Board shall make a final decision and notify the
applicant in writing.
Article 22.Where an opposition is filed against
the trademark that has, after examination, been preliminary approved
and published, the Trademark Office shall hear both the opponent and
applicant state facts and grounds and shall, after investigation and
verification, make a decision. Where any party is dissatisfied, he
may, within fifteen days from receipt of the notification, apply for
a review, and the Trademark Review and Adjudication Board shall make
a final decision and notify both the opponent and applicant in writing.
Chapter
IV
Renewal, Assignment and Licensing of Registered Trademarks
Article
23.The
period of validity of a registered trademark shall be ten years, counted
from the date of approval of the registration.
Article 24.Where the registrant intends to continue
to use the registered trademark beyond the expiration of the period
of validity, an application for renewal of the registration shall
be made within six months before the said expiration.Where no application
therefor has been filed within the said period, a grace period of
six months may be allowed. If no application has been filed at the
expiration of the grace period, the registered trademark shall be
canceled.
The period of validity of each renewal of registration shall be ten
years.
Any renewal of registration shall be published after it has been approved.
Article 25.Where a registered trademark is assigned,both
the assignor and assignee shall jointly file an application with the
Trademark Office. The assignee shall guarantee the quality of the
goods in respect of which the registered trademark is used.
The assignment of a registered trademark shall be published after
it has been approved.
Article 26.Any trademark registrant may, by signing
a trademark license contract, authorize other persons to use his registered
trademark. The licensor shall supervise the quality of the goods in
respect of which the licensee uses his registered trademark, and the
licensee shall guarantee the quality of the goods in respect of which
the registered trademark is used.
Where any party is authorized to use a registered trademark of another
person, the name of the licensee and the origin of the goods must
be indicated on the goods that bear the registered trademark.
The trademark license contract shall be submitted to the Trademark
Office for record.
Chapter
V
Adjudication of Disputes Concerning Registered Trademarks
Article
27.Where a registered trademark stands in violation of the provisions
of this Law, or the registration of a trademark was acquired by fraud
or any other unfair means, the Trademark Office shall cancel the registered
trademark in question; and any other organization or individual may
request the Trademark Review and Adjudication Board to make an adjudication
to cancel such a registered trademark.
In addition to those cases as provided for in the preceding paragraph,
any person disputing a registered trademark may, within one year from
the date of approval of the trademark registration, apply to the Trademark
Review and Adjudication Board for adjudication.
The Trademark Review and Adjudication Board shall after receipt of
the application for adjudication, notify the interested parties and
request them to respond with arguments within a specified period.
Article 28.Where a trademark, before its being approved
for registration, has been the object of opposition and decision,
no application for adjudication may be filed based on the same facts
and grounds.
Article 29.After the Trademark Review and Adjudication
Board has made a final adjudication either to maintain or to cancel
a registered trademark, it shall notify the interested parties of
the same in writing.
Chapter
VI
Administration of the Use of Trademarks
Article
30.Where
any person who uses a registered trademark has committed any of the
following, the Trademark Office shall order him to rectify the situation
within a specified period or even cancel the registered trademark:
(1) Where any word, device or their combination of a registered trademark
is altered unilaterally (that is, without the required registration);
(2) where the name, address or other registered matters concerning
the registrant of a registered trademark are changed unilaterally
(that is, without the required application);
(3) where the registered trademark is assigned unilaterally (that
is, without the required approval); and
(4) where the registered trademark has ceased to be used for three
consecutive years.
Article 31.Where a registered trademark is used
in respect of the goods that have been roughly or poorly manufactured,
or whose superior quality has been replaced by inferior quality, so
that consumers are deceived, the administrative authorities for industry
and commerce at different levels shall, according to the circumstances,
order rectification of the situation within a specified period, and
may, in addition, circulate a notice of criticism or impose a fine,
and the Trademark Office may even cancel the registered trademark.
Article 32.Where a registered trademark has been
canceled or has not been renewed at the expiration, the Trademark
Office shall, during one year from the date of the cancellation or
removal thereof, approve no application for the registration of a
trademark that is identical with or similar to the said trademark.
Article 33.Where any person violates the provisions
of Article 5 of this Law, the local administrative authority for industry
and commerce shall order him to file an application for the registration
within a specified period, and may, in addition, impose a fine.
Article 34.Where any person who uses an unregistered
trademark has committed any of the following, the local administrative
authority for industry and commerce shall stop the use of the trademarks,
order him to rectify the situation within a specified period, and
may, in addition, circulate a notice of criticism or impose a fine:
(1) where the trademark is falsely represented as registered;
(2) where any provision of Article 8 of this Law is violated; and
(3) where the manufacture is rough or poor, or where superior quality
is replaced by inferior quality, so that consumers are deceived.
Article 35.Any party dissatisfied with the decision
of the Trademark Office to cancel a registered trademark may, within
fifteen days from receipt of the corresponding notice, apply for a
review. The Trademark Review and Adjudication Board shall make a final
decision and notify the applicant in writing.
Article 36.Any party dissatisfied with the decision
of the administrative authority for industry and commerce to impose
a fine under the provisions of Article 31, Article 33 or Article 34
may, within fifteen days from receipt of the corresponding notice,
institute legal proceedings with the people's court. If there have
been instituted no legal proceedings or made no performance of the
decision at the expiration of the said period, the administrative
authority for industry and commerce may request the people's court
for compulsory execution thereof.
Chapter
VII
Protection of the Exclusive Rights to Use Registered Trademarks
Article
37.The
exclusive right to use a registered trademark is limited to the trademark
which has been approved for registration and to the goods in respect
of which the use of the trademark has been approved.
Article 38.Any of the following acts shall be an
infringement of the exclusive right to use a registered trademark:
(1) to use a trademark that is identical with or similar to a registered
trademark in respect of the same or similar goods without the authorization
of the proprietor of the registered trademark;
(2) to sell goods that he knows bear a counterfeited registered trademark;
(3) to counterfeit, or to make, without authorization,representations
of a registered trademark of another person, or to sell such representations
of a registered trademark as were counterfeited, or made without authorization;
(4) to cause, in other respects, prejudice to the exclusive right
of another person to use a registered trademark.
Article 39.Where any party has committed any of
such acts to infringe the exclusive right to use a registered trademark
as provided for in Article 38 of this Law, the infringe may request
the administrative authority for industry and commerce at or above
the county level for actions. The administrative authority for industry
and commerce shall have the power to order the infringe to immediately
stop the infringing act and to compensate the infringe for the damages
suffered by the latter. The amount of compensation shall be the profit
that the infringe has earned through the infringement during the period
of the infringement or the damages that the infringe has suffered
through the infringement during the period of the infringement. Where
the infringement of the exclusive right to use a registered trademark
is not serious enough to constitute a crime, the administrative authority
for industry and commerce may impose a fine.Where any interested party
is dissatisfied with the decision of handling made by the administrative
ailthority for industry and commerce to order him to stop the infringing
act or to impose a fine, he may, within fifteen days from receipt
of the notice, institute legal proceedings with the people's court.
If there have been instituted no legal proceedings or made no performance
of the decision (to impose a fine) at the expiration of the said period,
the administrative authority for industry and commerce shall request
the people's court for cornpulsory execution thereof.
Where the exclusive right to use a registered trademark has been infringed,
the infringe may institute legal proceedings directly with the people's
court.
Article 40.Where any party passes off a registered
trademark of another person, and the case is so serious as to constitute
a crime, he shall be prosecuted, according to law, for his criminal
liabilities in addition to his compensation for the damages suffered
by the infringe.
Where any party counterfeits, or makes, without authorization, representations
of a registered trademark of another person, or sells such representations
of a registered trademarks were counterfeited, or made without authorization,
and the case is so serious as to constitute a crime, he shall be prosecuted,
according to law, for his criminal liabilities in addition to his
compensation for the damages suffered by the infringe.
Where any party sells goods that he knows bear a counterfeited registered
trademark, and the case is so serious as to constitute a crime, he
shall be prosecuted, according to law, for his criminal liabilities
in addition to his compensation for the damages suffered by the infringe.
Chapter
VIII
Supplementary Provisions
Article 41.Any
application for a trademark registration and for other matters concerning
a trademark shall be subject to payment of the fee as prescribed.
The schedule of fees shall be prescribed separately.
Article 42.The implementing Regulations under this
Law shall be drawn up by the administrative authority for industry
and commerce under the State Council. They shall enter into force
after they have been submitted to and approved by the State Council.
Article 43.This Law shall enter into force on March
1,1983. The "Regulations Governing Trademarks" promulgated
by the State Council on April 10, 1963 shall be abrogated on the same
date, and any other previsions concerning trademarks contrary to this
Law shall cease to be effective at the same time.
Trademarks registered before this Law enters into force shall continue
to be valid.
(In case of discrepancy, the original version in Chinese shall prevail.)