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Trademark Law of the People's Republic of China
Trademark Law of the People's Republic of China
(The fifth national session on August 23, 1982 Adopted at the 24th Session of the Standing Committee of the People's Congress
According to the "On Amending the People's Congress and the People's Republic of China" at the 30th Session of the Standing Committee of the Seventh National People's Congress on February 22, 1993 The first amendment to the Trademark Law of the People's Republic of China
According to the "Decision on Amending the Trademark Law of the People's Republic of China" at the 24th Meeting of the Standing Committee of the Ninth National People's Congress on October 27, 2001 Second Amendment to the Decision of China’s Trademark Law)
Contents
Chapter 1 General Provisions
Chapter 2 Application for Trademark Registration
Chapter 3 Review and Approval of Trademark Registration
Chapter 4 Renewal, Transfer and Use License of Registered Trademarks
Chapter 5 Ruling of Registered Trademark Disputes
Chapter 6 Management of Trademark Use
Chapter 7 Protection of Exclusive Rights of Registered Trademarks
Chapter 8 Supplementary Provisions
Chapter 1 General Provisions
p>Article 1 is to strengthen trademark management, protect the exclusive rights to trademarks, urge producers and operators to ensure the quality of goods and services, maintain trademark reputation, so as to protect the interests of consumers and producers and operators, and promote the socialist market economy development, this law is specially formulated.
Article 2 The Trademark Office of the Industrial and Commercial Administration Department of the State Council is responsible for the registration and management of trademarks nationwide.
The Administration for Industry and Commerce of the State Council has established a Trademark Review and Adjudication Committee to handle trademark disputes.
Article 3 Trademarks approved and registered by the Trademark Office are registered trademarks, including commodity trademarks, service marks, collective trademarks, and certification marks; the trademark registrant enjoys the exclusive right to use the trademark and is protected by law.
The term "collective trademark" as mentioned in this Law refers to a mark registered in the name of a group, association or other organization for use by members of the organization in commercial activities to indicate the user's membership in the organization.
The term "certification trademark" as used in this Law means that it is controlled by an organization with the ability to supervise certain goods or services and is used by units or individuals other than the organization to certify the goods or services. The origin, raw materials, manufacturing methods, quality or other signs of specific quality of the goods or services.
Special matters concerning the registration and management of collective trademarks and certification marks shall be stipulated by the industrial and commercial administration department of the State Council.
Article 4 If a natural person, legal person or other organization needs to obtain the exclusive right to use a trademark for the goods it produces, manufactures, processes, selects or distributes, it shall apply to the Trademark Office for commodity trademark registration.
If a natural person, legal person or other organization needs to obtain the exclusive right to use a trademark for the services it provides, it should apply to the Trademark Office for service trademark registration.
The provisions of this Law regarding commodity trademarks shall apply to service trademarks.
Article 5: Two or more natural persons, legal persons or other organizations may apply to the Trademark Office to register the same trademark at the same time, and jointly enjoy and exercise the exclusive right to the trademark.
Article 6: Goods that are required to use registered trademarks by the state must apply for trademark registration. Products without approved registration may not be sold in the market.
Article 7 Trademark users shall be responsible for the quality of the goods on which their trademarks are used. Industrial and commercial administrative departments at all levels should use trademark management to prevent behaviors that deceive consumers.
Article 8 Any visible mark that can distinguish the goods of a natural person, legal person or other organization from the goods of others, including words, graphics, letters, numbers, three-dimensional signs and color combinations, as well as the above Any combination of elements can be applied for registration as a trademark.
Article 9 The trademark applied for registration shall have distinctive features and be easy to identify, and shall not conflict with the legal rights previously obtained by others.
The trademark registrant has the right to indicate "registered trademark" or registered mark.
Article 10 The following signs shall not be used as trademarks:
(1) Those that are identical or similar to the country name, national flag, national emblem, military flag or medal of the People's Republic of China , and the name is the same as the name of a specific place where the central state agency is located or the name or figure of a landmark building;
(2) It is the same as or similar to the name, national flag, national emblem, or military flag of a foreign country, but Except with the consent of the government of the country;
(3) Identical or similar to the name, flag, or emblem of an intergovernmental international organization, except with the consent of the organization or if it is not likely to mislead the public;
(4) Identical or similar to official signs or inspection marks indicating implementation of control and guarantee, except those authorized;
(5) Same as "Red Cross" and "Red Crescent" The name or logo is the same or similar;
(6) Ethnically discriminatory;
(7) Exaggerated propaganda and deceptive;
(8) Harmful to socialist morals or have other adverse effects.
Place names of administrative divisions at or above the county level or foreign place names known to the public shall not be used as trademarks. However, exceptions are made where place names have other meanings or are part of collective trademarks or certification marks; registered trademarks using place names will continue to be valid.
Article 11 The following signs shall not be registered as trademarks:
(1) Only the common name, graphics and model of the product;
(2) ) only directly expresses the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the goods;
(3) Lack of distinctive features.
If the signs listed in the preceding paragraph acquire distinctive features through use and are easy to identify, they may be registered as trademarks.
Article 12 When applying for a registered trademark with a three-dimensional mark, a shape that is solely caused by the nature of the goods themselves, a shape of the goods that is necessary to obtain technical effects, or a shape that makes the goods of substantial value shall not be used. register.
Article 13 If a trademark applied for registration on the same or similar goods is a copy, imitation or translation of someone else’s well-known trademark that has not been registered in China and is likely to cause confusion, it shall not be registered and its use shall be prohibited.
If the trademark applied for registration for different or dissimilar goods is a copy, imitation or translation of a well-known trademark that has been registered in China by others, misleading the public, and causing the interests of the registrant of the well-known trademark to be potentially damaged, Registration is not allowed and use is prohibited.
Article 14 The following factors shall be considered when determining a well-known trademark:
(1) The degree of awareness of the trademark by the relevant public;
(2) The trademark The duration of use;
(3) The duration, extent and geographical scope of any publicity work for the trademark;
(4) The record of the trademark being protected as a well-known trademark;
(5) Other factors that make the trademark famous.
Article 15 Without authorization, an agent or representative registers the trademark of the principal or represented person in his or her own name, and if the principal or represented person raises an objection, the registration shall not be Registration and use prohibited.
Article 16 If a trademark contains a geographical indication of a product, but the product does not originate from the area indicated by the mark and misleads the public, it shall not be registered and shall be prohibited from use; however, if the trademark has been registered in good faith, remain in effect.
The geographical indications mentioned in the preceding paragraph refer to signs indicating that a certain commodity originates from a certain region, and that the specific quality, reputation or other characteristics of the commodity are mainly determined by the natural factors or human factors of the region.
Article 17 If a foreigner or foreign enterprise applies for trademark registration in China, it shall be handled in accordance with the agreement signed between the country where it belongs and the People's Republic of China or the international treaty to which both countries are party. Or handle it according to the principle of reciprocity.
Article 18 When foreigners or foreign enterprises apply for trademark registration and handle other trademark matters in China, they shall entrust an organization recognized by the state with trademark agency qualifications to act as their agent.
Chapter 2 Application for Trademark Registration
Article 19 When applying for trademark registration, the product category and product name for which the trademark is used shall be filled in according to the prescribed product classification table.
Article 20 If a trademark registration applicant applies to register the same trademark on different categories of goods, he shall submit a registration application according to the commodity classification table.
Article 21 If a registered trademark needs to be used on other goods of the same category, a separate application for registration shall be submitted.
Article 22 If a registered trademark needs to change its sign, a new registration application must be submitted.
Article 23 If a registered trademark needs to change the name, address or other registration matters of the registrant, an application for change shall be submitted.
Article 24: A trademark registration applicant files another trademark registration application for the same goods with the same trademark in China within six months from the date when the trademark is first filed for trademark registration in a foreign country. , can enjoy priority in accordance with the agreement signed by the foreign country and China or the international treaty to which both countries are party, or in accordance with the principle of mutual recognition of priority.
Those who claim priority in accordance with the preceding paragraph shall submit a written statement when filing an application for trademark registration, and submit a copy of the first trademark registration application document within three months; if a written statement is not made, Or if a copy of the trademark registration application document is not submitted within the time limit, it will be deemed that priority has not been claimed.
Article 25 If a trademark is used for the first time on goods exhibited at an international exhibition sponsored or recognized by the Chinese government, the registration of the trademark shall be within six months from the date of exhibition of the goods. Applicants may enjoy priority.
Those who claim priority in accordance with the preceding paragraph shall submit a written statement when applying for trademark registration, and within three months submit the name of the exhibition where the goods are exhibited and the use of the trademark on the goods on display. Evidence of the trademark, date of exhibition and other supporting documents; if no written statement is made or supporting documents are not submitted within the time limit, it will be deemed that priority has not been claimed.
Article 26 The matters reported and the materials provided for applying for trademark registration shall be true, accurate and complete.
Chapter 3 Review and Approval of Trademark Registration
Article 27 If a trademark applied for registration complies with the relevant provisions of this Law, the Trademark Office shall preliminarily review and announce it.
Article 28 If a trademark applied for registration does not comply with the relevant provisions of this Law or is identical or similar to a trademark that has been registered or preliminarily approved by others on the same or similar goods, the trademark shall be The Bureau rejected the application and did not make an announcement.
Article 29: If two or more trademark registration applicants apply for registration of the same or similar trademark on the same or similar goods, the first applicant shall be preliminarily reviewed and announced. If the application is made on the same day, the previously used trademark will be initially reviewed and announced, and other applications will be rejected and will not be announced.
Article 30: Anyone may raise an objection to a preliminary approved trademark within three months from the date of announcement. If there is no objection at the expiration of the announcement period, the registration will be approved, a trademark registration certificate will be issued, and the announcement will be made.
Article 31: Application for trademark registration shall not damage the existing prior rights of others, nor shall unfair means be used to preemptively register a trademark that has been used by others and has certain influence.
Article 32 The Trademark Office shall notify the trademark registration applicant in writing for a trademark that rejects the application and refuses to be announced. If the trademark registration applicant is dissatisfied, he may apply to the Trademark Review and Adjudication Board for review within fifteen days from the date of receipt of the notice. The Trademark Review and Adjudication Board will make a decision and notify the applicant in writing.
If the party concerned is dissatisfied with the decision of the Trademark Review and Adjudication Board, it may file a lawsuit with the People's Court within thirty days from the date of receipt of the notice.
Article 33: If an objection is raised against a trademark that has been initially approved and announced, the Trademark Office shall listen to the facts and reasons stated by the opponent and the person being opposed, and make a ruling after investigation and verification. If the party concerned is dissatisfied, he may apply to the Trademark Review and Adjudication Board for review within fifteen days from the date of receipt of the notice. The Trademark Review and Adjudication Board will make a ruling and notify the opponent and the opposed party in writing.
If the party concerned is dissatisfied with the ruling of the Trademark Review and Adjudication Board, it may file a lawsuit with the People's Court within thirty days from the date of receipt of the notice. The people's court shall notify the other party in the trademark review procedure to participate in the litigation as a third party.
Article 34 If the party concerned does not apply for review of the ruling made by the Trademark Office within the statutory period or does not file a lawsuit in the People's Court against the ruling made by the Trademark Review and Adjudication Board, the ruling shall take effect.
If the objection is determined to be untenable, the registration will be approved, a trademark registration certificate will be issued, and an announcement will be made; if the objection is ruled to be established, the registration will not be approved.
If the objection is determined to be untenable and the registration is approved, the time for the trademark registration applicant to obtain the exclusive right to trademark shall be calculated from the expiration of the three-month period from the preliminary announcement.
Article 35: Applications for trademark registration and trademark review shall be reviewed in a timely manner.
Article 36 If a trademark registration applicant or registrant discovers that there are obvious errors in trademark application documents or registration documents, they may apply for correction. The Trademark Office shall make corrections within the scope of its powers in accordance with the law and notify the parties involved.
The correction errors referred to in the preceding paragraph do not involve the substantive content of the trademark application documents or registration documents.
Chapter 4 Renewal, Transfer and Use License of Registered Trademarks
Article 37 The validity period of a registered trademark is ten years, calculated from the date of approval of registration.
Article 38 If a registered trademark expires and needs to be continued to be used, an application for renewal of registration shall be made within six months before expiration; if the application is not made during this period, a six-month period may be granted of extension period. If an application has not been made before the extension period expires, the registered trademark will be cancelled.
Each renewal of registration is valid for ten years.
After the registration renewal is approved, an announcement will be made.
Article 39 If a registered trademark is transferred, the transferor and the transferee shall sign a transfer agreement and submit applications to the Trademark Office at the same time. The transferee shall ensure the quality of the goods using the registered trademark.
After the transfer of a registered trademark is approved, it will be announced. The assignee shall enjoy the exclusive right to use the trademark from the date of announcement.
Article 40 A trademark registrant may authorize others to use its registered trademark by signing a trademark license contract. The licensor shall supervise the quality of the goods used by the licensee using its registered trademark. The licensee shall ensure the quality of the goods using the registered trademark.
If you use someone else's registered trademark with permission, you must indicate the name of the licensee and the place of origin of the goods on the goods using the registered trademark.
The trademark license contract shall be reported to the Trademark Office for filing.
Chapter 5 Ruling on Disputes over Registered Trademarks
Article 41 If a registered trademark violates the provisions of Articles 10, 11 and 12 of this Law , or if the registration is obtained by deception or other improper means, the Trademark Office shall revoke the registered trademark; other units or individuals may request the Trademark Review and Adjudication Board to rule on revoking the registered trademark.
If a registered trademark violates the provisions of Articles 13, 15, 16 and 31 of this Law, within five years from the date of trademark registration, the trademark owner shall Or an interested party may request the Trademark Review and Adjudication Board to rule on revoking the registered trademark. For cases registered in bad faith, the owner of a well-known trademark is not subject to the five-year time limit.
Except for the circumstances specified in the preceding two paragraphs, if there is a dispute over a registered trademark, you may apply to the Trademark Review and Adjudication Board for a ruling within five years from the date of approval of registration of the trademark.
After receiving the ruling application, the Trademark Review and Adjudication Board shall notify the relevant parties and submit a defense within a time limit.
Article 42: For a trademark that has been opposed and adjudicated before registration is approved, no further application for adjudication is allowed based on the same facts and reasons.
Article 43 After the Trademark Review and Adjudication Board makes a ruling to maintain or cancel a registered trademark, it shall notify the relevant parties in writing.
If the party concerned is dissatisfied with the ruling of the Trademark Review and Adjudication Board, it may file a lawsuit with the People's Court within thirty days from the date of receipt of the notice.
The people's court shall notify the other party in the trademark adjudication procedure to participate in the litigation as a third party.
Chapter 6 Management of Trademark Use
Article 44: Anyone who uses a registered trademark and commits any of the following acts shall be ordered by the Trademark Office to correct or cancel the registered trademark within a time limit:
(1) Changing the registered trademark on your own initiative;
(2) Changing the name, address or other registration matters of the registered trademark on your own initiative;
(3) ) Transferring a registered trademark by oneself;
(4) Stopping use for three consecutive years.
Article 45 If a registered trademark is used, and the goods are shoddily manufactured, passed off as inferior, and deceive consumers, the industrial and commercial administration departments at all levels will order corrections within a time limit based on different circumstances, and may notify or A fine may be imposed, or the registered trademark may be revoked by the Trademark Office.
Article 46 If a registered trademark is revoked or is not renewed upon expiration, within one year from the date of cancellation or cancellation, the Trademark Office shall apply for registration of a trademark that is identical or similar to the trademark. Not approved.
Article 47 Anyone who violates the provisions of Article 6 of this Law shall be ordered by the local industrial and commercial administration department to apply for registration within a time limit and may be fined.
Article 48: Anyone who uses an unregistered trademark and commits any of the following acts shall be stopped by the local industrial and commercial administration department, rectified within a time limit, and may be notified or fined:
(1) Counterfeiting a registered trademark;
(2) Violating the provisions of Article 10 of this Law;
(3) Making shoddy products, passing them off as good ones, and deceiving consumers.
Article 49 If the party concerned is dissatisfied with the Trademark Office’s decision to cancel a registered trademark, he may apply to the Trademark Review and Adjudication Board for review within fifteen days from the date of receipt of the notice, and the Trademark Review and Adjudication Board will make a decision. , and notify the applicant in writing.
If the party concerned is dissatisfied with the decision of the Trademark Review and Adjudication Board, it may file a lawsuit with the People's Court within thirty days from the date of receipt of the notice.
Article 50 If the party concerned is dissatisfied with the fine decision made by the industrial and commercial administrative department in accordance with the provisions of Articles 45, 47 and 48 of this Law, he may voluntarily Within 15 days from the date of receipt of the notice, a lawsuit shall be filed in the People's Court; if the party fails to file a lawsuit and fails to perform within the time limit, the relevant industrial and commercial administrative department shall apply to the People's Court for compulsory enforcement.
Chapter 7 Protection of the Exclusive Rights of Registered Trademarks
Article 51 The exclusive right of registered trademarks is limited to the trademarks approved for registration and the goods approved for use.
Article 52: Anyone who commits any of the following acts shall infringe upon the exclusive right to use a registered trademark:
(1) Without the permission of the trademark registrant, the same kind of goods or Using a trademark that is the same as or similar to its registered trademark on similar goods;
(2) Selling goods that infringe the exclusive rights of a registered trademark;
(3) Counterfeiting or manufacturing without authorization registered by others Trademark signs or selling counterfeit or unauthorized registered trademark signs;
(4) Changing the registered trademark without the consent of the trademark registrant and putting the goods with the changed trademark back into the market;
(5) Causing other damage to the exclusive right to use registered trademarks of others.
Article 53 If a dispute arises from any of the acts that infringe upon the exclusive right to use a registered trademark as listed in Article 52 of this Law, the parties shall resolve it through negotiation; if the parties are unwilling to negotiate or the negotiation fails, the trademark registration The person or interested party may bring a lawsuit to the People's Court or request the industrial and commercial administrative department to handle the matter. When the industrial and commercial administration department determines that the infringement is established, it shall order the infringement to cease immediately, confiscate and destroy the infringing goods and tools specifically used to manufacture infringing goods and counterfeit registered trademarks, and may impose a fine. If the party concerned is dissatisfied with the handling decision, he may file a lawsuit with the People's Court in accordance with the "Administrative Procedure Law of the People's Republic of China" within fifteen days from the date of receipt of the handling notice; if the infringer does not file a lawsuit or perform the duties upon expiration of the time limit, the industrial and commercial administration shall The department may apply to the People's Court for compulsory enforcement.
The industrial and commercial administrative department handling the case may mediate the amount of compensation for infringement of trademark exclusive rights at the request of the parties; if mediation fails, the parties may file a lawsuit in the People's Court in accordance with the Civil Procedure Law of the People's Republic of China.
Article 54: The industrial and commercial administrative department has the right to investigate and deal with any infringement of the exclusive rights of registered trademarks in accordance with the law; if a crime is suspected, it shall be promptly transferred to the judicial authority for handling in accordance with the law.
Article 55: The industrial and commercial administrative department at or above the county level may exercise the following powers when investigating and punishing suspected infringement of other people’s exclusive rights to registered trademarks based on obtained evidence or reports of suspected violations of law:
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(1) Question the relevant parties and investigate the situation related to the infringement of the exclusive rights of others’ registered trademarks;
(2) Review and copy the parties’ contracts, invoices, account books and related infringement activities. Other relevant information;
(3) Conduct on-site inspections of places where the parties are suspected of engaging in activities that infringe the exclusive rights to registered trademarks of others;
(4) Inspect items related to infringing activities; If there is evidence that an item infringes upon the exclusive rights of another person's registered trademark, it may be sealed or seized.
When the administrative department for industry and commerce exercises the powers stipulated in the preceding paragraph in accordance with the law, the parties concerned shall provide assistance and cooperation and shall not refuse or obstruct it.
Article 56 The amount of compensation for infringement of trademark exclusive rights shall be the benefits obtained by the infringer due to the infringement during the infringement period, or the losses suffered by the infringed party due to the infringement during the infringement period, including The reasonable expenses paid by the infringer to stop the infringement.
If the benefits gained by the infringer due to the infringement as mentioned in the preceding paragraph, or the losses suffered by the infringed party due to the infringement are difficult to determine, the people's court shall award a compensation of not more than 500,000 yuan based on the circumstances of the infringement.
If you sell goods that are not known to infringe the exclusive rights of a registered trademark, and you can prove that you obtained the goods legally and explain the supplier, you will not be liable for compensation.
Article 57 If a trademark registrant or interested party has evidence to prove that others are committing or about to commit acts that infringe upon the exclusive right to use a registered trademark, if not stopped in time, their legitimate rights and interests will be jeopardized. If the damage is to be compensated, the person may apply to the People's Court to take measures to order the cessation of the relevant conduct and property preservation before filing a lawsuit.
When the people's court handles the application in the preceding paragraph, it shall apply the provisions of Articles 93 to 96 and 99 of the "Civil Procedure Law of the People's Republic of China".
Article 58: In order to prevent infringement, if the evidence may be lost or difficult to obtain in the future, the trademark registrant or interested party may apply to the People's Court for the preservation of evidence before filing a lawsuit.
After accepting the application, the People's Court must make a ruling within 48 hours; if it decides to take preservation measures, it shall start implementation immediately.
The People's Court may order the applicant to provide a guarantee. If the applicant fails to provide a guarantee, the application shall be rejected.
If the applicant does not file a lawsuit within fifteen days after the People’s Court takes preservation measures, the People’s Court shall terminate the preservation measures.
Article 59 If the use of a trademark identical to the registered trademark on the same product without the permission of the trademark registrant constitutes a crime, in addition to compensating the losses of the infringed party, criminal liability will be pursued in accordance with the law.
If a person forges or manufactures a registered trademark of another person without authorization or sells a forged or unauthorized registered trademark, which constitutes a crime, in addition to compensating the losses of the infringed party, criminal liability shall be pursued in accordance with the law.
Whoever knowingly sells goods that are counterfeit registered trademarks constitutes a crime. In addition to compensating the infringed party for their losses, he will also be held criminally responsible in accordance with the law.
Article 60: State agency staff engaged in trademark registration, management and review must enforce the law impartially, be honest and self-disciplined, be dedicated to their duties, and serve in a civilized manner.
Trademark Office, Trademark Review and Adjudication Board and state agency staff engaged in trademark registration, management and review are not allowed to engage in trademark agency business and commodity production and operation activities.
Article 61 The industrial and commercial administrative department shall establish and improve an internal supervision system to supervise the implementation of laws, administrative regulations and compliance with disciplines by state agency staff responsible for trademark registration, management and review. examine.
Article 62: State agency staff engaged in trademark registration, management and review work neglect their duties, abuse their power, practice favoritism, handle trademark registration, management and review matters illegally, accept property from parties, and seek unreasonable gains. If a legitimate interest constitutes a crime, criminal liability shall be investigated in accordance with the law; if it does not constitute a crime, administrative sanctions shall be imposed in accordance with the law.
Chapter 8 Supplementary Provisions
Article 63 Those who apply for trademark registration and handle other trademark matters must pay fees, and the specific fee standards will be determined separately.
Article 64 This Law shall come into effect on March 1, 1983. The "Trademark Management Regulations" promulgated by the State Council on April 10, 1963 shall be abolished at the same time; other provisions related to trademark management that conflict with this law shall be invalid at the same time.
Trademarks that have been registered before the implementation of this law will continue to be valid