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Chapter 1: General Provisions
Rule 1. These Implementing Regulations are drawn up 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").
Rule 2. An applicant for the registration of a trademark
shall be such an enterprise, an institution, a social organization,
an individual industrial or commercial household or an individual
partnership as legally established, or such a foreigner or
a foreign enterprise as provided for in Article 9 of the Trademark
Law. The provisions made in these Implementing Regulations
concerning goods trademarks shall apply to service marks.
Rule 3. Where an application for the registration of a trademark,
for the assignment or renewal of a trademark registration,
for the modification of the name or address of a registrant,
for the resistance of a certificate of trademark registration
or for any other matters concerning a trademark is to be filed,
the applicant may either entrust any of such trademark agencies
as approved by the State Administration for Industry and Commerce
to act as his agent, or file his application directly with
the Trademark Office. Concerning a trademark in China shall
entrust any foreigner or foreign enterprise intending to apply
for the registration of a trademark or for any other matters
any of such trademark agencies as designated by the State
Administration for Industry and Commerce to act as his or
its agent. Where an application is filed for international
registration, it shall be done in accordance with the "Madrid
Agreement Concerning the International Registration of Marks".
Rule 4. Any application for the registration of a trademark,
for the assignment or renewal of a trademark registration,
for the modification of the name or address of a registrant,
for the resistance of a certificate of trademark registration,
for the review of or adjudication on a trademark or for any
other matters concerning a trademark shall be subject to payment
of the fees as prescribed.
Rule 5. The Trademark Office of the State Administration
for Industry and Commerce (hereinafter referred to as the
"Trademark Office") shall establish and keep a "Trademark
Register", in which all the registered trademarks and
any other registered matters in relation shall be recorded.
The Trademark Office shall compile and publish a "Trademark
Gazette", in which all the trademark registrations and
any other matters in relation shall be announced.
Rule 6. According to Article 3 of the Trademark Law, all
the collective marks and certification marks approved by the
Trademark Office for registration shall be protected by law.
The procedures for the registration and administration of
collective marks and certification marks shall be separately
drawn up by the State Administration for Industry and Commerce,
in cooperation with the departments concerned of the State
Council.
Rule 7. Any of such pharmaceutic products for human use and
tobacco products as prescribed by the State and published
by the State Administration for Industry and Commerce shall
use a registered trademark. Any of such other goods as prescribed
by the State that must use a registered trademark shall be
published by the State Administration for Industry and Commerce.
Rule 8. Under the State Administration for Industry and Commerce,
there shall be established the Trademark Review and Adjudication
Board, which shall make a final decision or adjudication on
any matters submitted for review or adjudication under the
relevant provisions of the Trademark Law and these Regulations.
Chapter 2: Application for Trademark Registration
Rule 9. When applying for the registration of a trademark,
the applicant shall file one application in respect of each
class of goods according to the Classification of Goods as
published. For each filing, an "Application for Trademark
Registration" shall be submitted to the Trademark Office,
accompanied by ten copies of the reproductions of the trademark
(If colour is claimed, ten copies of the colour reproductions
of the trademark shall be attached thereto.) and one copy
of the black and white design thereof. The reproductions of
a trademark must be clear and easy to be pasted up, and shall
be printed on smooth and clear durable paper or substituted
by photographs, the length and breadth of which shall be less
than 10 cm but more than 5 cm each.
Rule 10. The forms relating to an application for trademark
registration or for any other matters concerning a trademark
shall be filled out with pen, Chinese writing brush or typewriter,
and the writing or typing shall be clear and neat. The applicant's
name and seal shall be the same as approved or registered.
The goods listed in the application shall not go beyond the
scope of business as approved or registered. The goods shall
be listed in the application according to the Classification
of Goods. If any goods are not included in the Classification
of Goods, a description of the goods shall be attached to
the application.
Rule 11. Any application for the registration of a trademark
in respect of pharmaceutic products for human use shall be
accompanied by a certificate issued by the health administrative
department. Any application for the registration of a trademark
in respect of cigarettes, cigars or cut tobacco with packages
shall be accompanied by a certificate of authorized manufacture
issued by the competent authority of the State for tobacco
products. Any application for the registration of a trademark
in respect of any such other goods as prescribed by the State
that must use a registered trademark shall be accompanied
by a certificate of authorization issued by the competent
department concerned.
Rule 12. The date of filing of an application for trademark
registration shall be the date on which the Trademark Office
receives the application. If the formal formalities for the
application are complete and the application form is filled
out according to the relevant provisions, the Trademark Office
shall give it a filing number and issue a "Notification
of Acceptance". If the formal formalities therefor are
not complete or the application form is not filled out according
to the relevant provisions, the application shall be returned
to the applicant and no filing date shall be retained. Where
the formal formalities are basically complete or the application
form is basically in conformity with the relevant provisions,
but there is still a need for the applicant to make necessary
supplements thereto or corrections thereof, the Trademark
Office shall notify the applicant to make such supplements
or corrections as advised and require the latter to resubmit
the supplemented or corrected application to the Trademark
Office within fifteen days from receipt of the notification.
If it is supplemented or corrected and resubmitted to the
Trademark Office within the time limit, the filing date shall
be retained; but if no such supplements or corrections have
been made at the expiration of the specified period or they
are made beyond the time limit, no filing date shall be retained.
Rule 13. Where tow or more applicants apply for the registration
of the identical or similar trademarks in respect of the same
or similar goods on the same day, each of the applicants shall,
as notified by the Trademark Office, furnish it, within thirty
days, with the proof of the date of first use of the said
trademark. If the first use started on the same day, or if
neither or none of them has been in use, all applicants involved
therein shall hold consultations among themselves. If they
have reached an agreement, they shall submit their agreement
in writing to the Trademark Office within thirty days. If
no agreement has been reached through consultations within
thirty days, both or all the applicants involved therein shall
draw lots to decide it, the process of which shall be presided
over by the Trademark Office, or otherwise the Trademark Office
shall make an adjudication on it.
Rule 14. Where a trademark applicant entrusts a trademark
agency in filing any application for the registration of a
trademark or for any other matters concerning a trademark,
he shall submit a Power of Attorney. The Power of Attorney
shall indicate such contents and competence as authorized.
Where the applicant is a foreigner or a foreign enterprise,
the Power of Attorney shall, in addition, indicate the nationality
of the entruster. Where a foreigner or a foreign enterprise
applies for the registration of a trademark or for any other
matters concerning a trademark, the Chinese language shall
be used. The notarization and legalization of the Power of
Attorney and the relevant certificates shall be done based
on the principle of reciprocity. Any document in a foreign
language shall be accompanied by a Chinese translation thereof.
Rule 15. The Trademark Office shall accept and handle any
claim for the right of priority in respect of an application
for the registration of a trademark. The specific procedures
in this respect shall be such as prescribed and promulgated
by the State Administration for Industry and Commerce.
Chapter 3: Examination for Trademark Registration
Rule 16. The Trademark Office shall, according to the Trademark
Law, examine all the applications it has accepted. Where a
trademark is distinctive and in conformity with the relevant
provisions of the Trademark Law, the Trademark Office shall,
after examination, preliminarily approve the trademark and
publish it in the "Trademark Gazette". Where an
application for trademark registration is refused, the Trademark
Office shall send a "Notification of Refusal" to
the applicant. Where the Trademark Office considers that the
application for a trademark registration is yet to be modified,
it shall send an "Examiner's Advice" to the applicant
and require the latter to make necessary modifications within
fifteen days from receipt of the notification. If no such
modifications have been made at the expiration of the specified
period, or the modifications are made beyond the time limit,
or the modified application is still not in conformity with
the relevant provisions of the Trademark Law, the Trademark
Office shall refuse the application and send a "Notification
of Refusal" to the applicant.
Rule 17. When applying for review of the refused trademark,
the applicant shall, within fifteen days from receipt of the
notification of refusal, send an "Application for Review
of the Refused Trademark" to the Trademark Review and
Adjudication Board, accompanied by the original Application
for Trademark Registration", ten copies of the original
reproductions of the trademark, one copy of the black and
white design thereof and the "Notification of Refusal".
The Trademark Review and Adjudication Board shall make a final
decision and notify the applicant of the same in writing.
Where a trademark is, according to the final decision, to
be preliminarily approved, it shall be transferred to the
Trademark Office for the corresponding actions.
Rule 18. Where an opposition is filed against a trademark
which has, after examination, been preliminarily approved
and so published by the Trademark Office, the opponent shall
send two copies of the same "Application for Trademark
Opposition" to the Trademark Office. The "Application
for Trademark Opposition" shall indicate both the page
number and issue number of the "Trademark Gazette"
in which the opposed trademark was published and the number
of the preliminary approval. The Trademark Office shall send
one copy of the "Application for Trademark Opposition"
to the opposed party for a response to be made within thirty
days from receipt of the notification, and then make an adjudication
on the basis of such facts and grounds as stated by both parties.
If no response has been made at the expiration of the specified
period, the Trademark Office shall also make an adjudication
thereon and notify the interested parties of the same. If
an opposed trademark has, prior to the entry into force of
the adjudication on the opposition, been announced as a registered
trademark in the "Trademark Gazette", the announcement
thereof shall be invalid.
Rule 19. Where any interested party is dissatisfied with
the adjudication on the opposition made by the Trademark Office,
he may, within fifteen days from receipt of the notification
of adjudication, apply to the Trademark Review and Adjudication
Board for review by sending two copies of the same "Application
for Review of the Opposed Trademark" thereto. The Trademark
Review and Adjudication Board shall make a final adjudication,
notify the interested parties of the same in writing and transfer
the case to the Trademark Office for the corresponding actions.
If the opposition against a trademark is not justified, the
Trademark Office shall, after the entry into force of the
adjudication on the opposition, approve the registration of
the trademark involved therein.
Chapter 4: Modification, Assignment, Renewal and Adjudication-on-Dispute
Concerning a Registered Trademark
Rule 20. When applying modification of his name, the registrant
shall send an "Application for Modification of the Name
of Trademark Registrant" and a proof of the modification
to the Trademark Office, and return the original "Certificate
of Trademark Registration" thereto. Where the Trademark
Office, after examination, approves the application, it shall
return, to the applicant, the original "Certificate of
Trademark Registration" on which the approval has been
marked and shall make a publication of the modification. When
applying for modification of his address or any other matters
relating to a trademark registration, the registrant shall
send an "Application for Modification of the Address
of Trademark Registrant" or an "Application for
Modification of Other Matters Relating to the Registered Trademark"
and a proof of the modification to the Trademark Office, and
return the original "Certificate of Trademark Registration"
thereto. Where the Trademark Office, after examination, approves
the application, it shall return, to the applicant, the original
"Certificate of Trademark Regeneration" on which
the approval has been marked and shall make a publication
of the modification. When applying for modification of his
name or address, the registrant shall do the same modification
in respect of all his registered trademarks.
Rule 21. When applying for the assignment of a registered
trademark, both the assignor and assignee shall jointly send
an "Application for Assignment of Registered Trademark"
to the Trademark Office, accompanied by the original "Certificate
of trademark Registration". The assignee shall do the
formalities required in applying for the assignment of a registered
trademark. The assignee shall be so qualified as provided
for in Rule 2 of these Regulations. Where the Trademark Office
approves the assignment, it shall return, to the assignee,
the original "Certificate of Trademark Registration"
on which the approval of the assignment has been marked and
shall make a publication of the assignment. When applying
for the assignment of a registered trademark, the registrant
shall, at the same time, do the same assignment in respect
of all his other registered trademarks that are identical
with or similar to the said registered trademark in respect
of the same or similar goods. Where a registered trademark
is assigned in respect of such goods as provided for in Rule
7 of these Regulations, the assignee shall, under the provisions
of Rule 11 of these Regulations, furnish the Trademark Office
with a certificate issued by the competent department concerned.
Where an application for the assignment of a registered trademark
may mislead the public or cause confusions or exert any other
unhealthy influences, the Trademark Office shall grant no
approval thereof but refuse it.
Rule 22. When applying for the renewal of a trademark registration,
the registrant shall send an "Application for Renewal
of Trademark Registration" to the Trademark Office, accompanied
by five copies of the reproductions of the registered trademark,
and return the original "Certificate of Trademark Registration"
thereto. Where the Trademark Office, after examination, approves
the renewal, it shall return, to the registrant, the original
"Certificate of Trademark Registration"on which
the approval of the renewal has been marked and shall make
a publication of the renewal. Where it contravenes the relevant
provisions of the Trademark Law, the Trademark Office shall
grant no approval thereof but refuse it. The period of validity
of a renewed trademark registration shall be so calculated
as from the next day to the date of expiration of the previous
period of validity of the said trademark.
Rule 23. Where an applicant is dissatisfied with the decision
of the Trademark Office to refuse his application for an assignment
or renewal, he may, within fifteen days from receipt of the
notification of review by sending an "Application for
Review of the Refused Assignment" or an "Application
for Review of the Refused Renewal" to the Trademark Review
and Adjudication Board, accompanied by the original "Application
for Assignment of Registered Trademark"or "Application
for Renewal of Trademark Registration" and the "Notification
of Renewal of Refusal". The Trademark Review and Adjudication
Board shall make a final decision and notify the applicant
of the same in writing .If the final decision approves the
assignment or renewal, the case shall be transferred to the
Trademark Office for the corresponding actions.
Rule 24. Where a trademark registrant disputes a registered
trademark of another party, he shall, within one year from
the date of announcement, in the "Trademark Gazette",
of the registered trademark in question of another party,
send two copies of the same "Application for Adjudication
on the Disputed Trademark" to the Trademark Review and
Adjudication Board for adjudication. Where the Trademark Review
and Adjudication Board makes a final adjudication either to
maintain or to cancel a disputed registered trademark, it
shall notify the interested parties of the same in writing
and transfer the case to the Trademark Office for the corresponding
actions. If the grounds for the cancellation involve only
some of the registered components, such components as involved
therein shall be canceled. Where it is adjudicated that it
should be canceled, the proprietor of the disputed trademark
shall, within fifteen days from receipt of the notification
of adjudication, return the original "Certificate of
trademark Registration" to the Trademark Office.
Rule 25. The following shall be such acts as referred to
in Paragraph 1 of Article 27 of the Trademark Law, which are
committed in the acquisition of a trademark registration by
fraud or any other unfair means: (1) to fabricate or withhold
the truth or forge an application and the related documents
in the registration: (2) to violate the principles of honesty
and credit and plagiarize, counterfeit or translate any well-known
trademark of another party in the registration; (3) to acquire
a trademark registration in the name of a trademark agent
but without the authorization of the trademark proprietor
who entrusts him in the registration; (4) to infringe any
legal prior rights of another party in the registration; and
(5) to use any other unfair means to acquire a registration.
Where the trademark registrant is dissatisfied with the decision
made by the Trademark Office to cancel the trademark registration
in accordance with Paragraph 1 of Article 27 of the Trademark
Law, he may, within fifteen days from receipt of the notification
of the decision, apply for review by sending an "Application
for Review of the Cancellation of Improperly Registered Trademark"
to the Trademark Review and Adjudication Board. The Trademark
Review and Adjudication Board shall make a final decision
thereon, notify the applicant of the same in writing and transfer
the case to the Trademark Office for the corresponding actions.
Wherever any organization or individual considers that a trademark
has been improperly registered, it or he may apply for adjudication
by sending two copies of the same "Application for the
Cancellation of Improperly Registered Trademark" to the
Trademark Review and Adjudication Board. The Trademark Review
and Adjudication Board shall make a final adjudication thereon,
notify the interested parties of the same in writing and transfer
the case to the Trademark Office for the corresponding actions.
Where an improperly registered trademark is canceled, the
Trademark Office shall have it published. The trademark registrant
in question shall, within fifteen days from receipt of the
notification of the decision or adjudication, send the original
"Certificate of Trademark Registration" back to
the Trademark Office. Where a registered trademark has been
canceled according to paragraph 1 and Paragraph 2 of Article
27of the Trademark Law, the exclusive right to use it shall
be deemed as no existence from the very beginning. Where a
registered as no existence from the very beginning. Where
a registered trademark been canceled according to a decision
or adjudication, there shall be no tracing force in any such
judgment or adjudication on any trademark infringement case
as made and enforced by the people's court or in any such
decision as made and enforced by the administrative authority
for industry and commerce and in any such trademark assignment
or trademark license contract as performed prior to the said
cancellation. But, if the bad faith of the trademark registrant
has caused damages to any other party, a claim shall be made
for the compensation therefor.
Chapter 5: Administration of the Use of Trademarks
Rule 26. Where a registered trademark is used, it shall carry
the indication of "Registered Trademark" or the
registration sign of (?) or (R) If it is difficult to mark
such an indication or sign on the goods, it shall be marked
on the packages or descriptions of or any other attachments
to the goods.
Rule 27. Where a "Certificate of Trademark Registration"
is lost or damaged, it is necessary to apply for the reissuance
thereof. The trademark registrant shall send an "Application
for Reissuance of Certificate of Trademark Registration"
to the Trademark Office, accompanied by five copies of the
reproductions of the registered trademark. Where a "Certificate
of Trademark Registration" is lost, the owner shall declare
the loss thereof in the "Trademark Gazette". Where
a "Certificate of Trademark Registration" is damaged,
it shall be sent back to the Trademark Office. Where any party
has committed any act in forging or altering a "Certificate
of Trademark Registration", the local administrative
authority for industry and commerce shall, according to the
case, impose a fine of not exceeding 20, 000 RMB Yuan and
seize all the copies of the "Certificate of Trademark
Registration" that have been forged or altered.
Rule 28. Where any party has committed any of such acts as
referred to in Article 30 (1), (2) and (3) 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 rectify
it, the administrative authority for industry and commerce
at the registrant's location shall submit the case to the
Trademark Office for the cancellation of the registered trademark.
Rule 29. Where any party has committed the act referred to
in Article 30 (4) of the Trademark Law, any person may apply
to the Trademark Office for the cancellation of the registered
trademark in question and state the facts related thereto.
The Trademark Office shall notify the trademark registrant
and require the latter to furnish, within three months from
receipt of the said notification, proof of use of the said
trademark or otherwise fair reasons for non-use thereof. If
no proof of use has been furnished at the expiration of specified
period or the proof is invalid, the Trademark Office shall
cancel the registered trademark. The use of a trademark referred
to in the preceding paragraph shall include the use of the
trademark on goods, packages or containers of the goods or
in trading documents and the use of the trademark in advertising,
exhibition or any other business activities.
Rule 30. Where an application is filed for the registration
of a trademark that is identical with or similar to such a
trademark as has been canceled under the provisions of Rule
29 of these Regulations in respect of the same or similar
goods, it shall not be bound by the provisions of Article
32 of the Trademark Law.
Rule 31. Where any party has committed any of such acts as
referred to in Article 31 or 34 (3) of the Trademark Law,
the administrative authority for industry and commerce shall
order him to rectify the situation within a specified period.
If the case is serious, the said authority shall order him
to make a self-examination of his faults, circulate a notice
of criticism and, in addition, impose a fine of not exceeding
20% of the amount of his illegal business or not exceeding
twice his profit illegally earned. If the goods in question
are poisonous, harmful or of no value of use, they shall be
destroyed. If a registered trademark is used on such goods,
the Trademark Office shall cancel the registered trademark
according to the provisions of the Trademark Law.
Rule 32. Where any party has committed any of such acts as
referred to in Article 34 (1) and (2) of the Trademark Law,
the administrative authority for industry and commerce shall
prohibit him from any advertising thereof, seal or seize the
representations of the said trademark and order him to rectify
the situation within a specified period, and may, in addition,
circulate a notice of criticism and impose a fine of not exceeding
20% of the amount of his illegal business according to the
case.
Rule 33. Where any party violates the provisions of Article
5 of the Trademark Law, the administrative authority for industry
and commerce shall prohibit him from the sale and advertising
of the goods and seal or seize the representations of the
registered trademark, and may, in addition, impose a fine
of not exceeding 10% of the amount of his illegal business
according to the case.
Rule 34. No person shall be allowed to make, print or transact,
in an illegal manner, the representations of a trademark.
Where any person violates the provisions of the preceding
paragraph, the administrative authority for industry and commerce
shall stop his illegal acts and seize the representations
of the trademark, and may, in addition, impose a fine of not
exceeding 20% of the amount of his illegal business according
to the case. Where any person sells the representations of
his own registered trademark, the Trademark Office may, in
addition, cancel his registered trademark. Where it is a case
in which the exclusive right to use a registered trademark
has been infringed, it shall be handled according to the provisions
of Rule 43 of these Regulations.
Rule 35. Where a trademark registrant authorizes any other
person to use his registered trademark, they shall sign a
trademark license contract for the use. Both the licensor
and licensee shall, within three months from conclusion of
the trademark license contract, submit a copy of the contract
to the administrative authority for industry and commerce
at the county level of his location for reference. The licensor
shall submit another copy of the same contract to the Trademark
Office for record, and the Trademark Office shall publish
the same. Where any party violates the provisions of the preceding
paragraph, the administrative authority for industry and commerce
at the location of either the licensor or the licensee shall
order him to rectify the situation within a specified period.
If the said party refuses to rectify it, the administrative
authority for industry and commerce shall impose a fine of
not exceeding 10,000 RMB Yuan, or even submit the case to
the Trademark Office for the cancellation of the registered
trademark. Where any party violates the provisions of Paragraph
2 of Article 26 of the Trademark Law, the administrative authority
for industry and commerce at the licensee's location shall
order him to rectify the situation within a specified period
and seize the representations of the licensed trademark of
the licensee, and may, in addition, impose a fine of not exceeding
50,000 RMB Yuan according to the case.
Rule 36. Where a trademark registrant authorizes any other
person to use his registered trademark, the licensee shall
be so qualified as provided for in Rule 2 of these Regulations.
Where a licensor authorizes any other person to use his registered
trademark in respect of any such gods as prescribed in Rule
7 of these Regulations, the licensee shall, under Rule 11
of these Regulations, furnish, as an attachment thereto, the
related certificate issued by the competent authority concerned
when he submits a copy of the contract to the administrative
authority for industry and commerce for reference.
Rule 37. When the Trademark Office makes a decision to cancel
a registered trademark under the provisions of Article 30
or 31 of the Trademark Law or Rule 28, 29, 31, 34 or 35 of
these Regulations, it shall notify the trademark registrant
and the administrative authority for industry and commerce
at the registrant's location of the same in writing. Where
the trademark registrant is dissatisfied with the decision
of the Trademark Office to cancel his registered trademark,
he may, within fifteen days from receipt of the notification
of cancellation, apply for review by sending an "Application
for Review of the Canceled Trademark" to the Trademark
Review and Adjudication Board. The Trademark Review and Adjudication
Board shall make a final decision, notify the trademark registrant
and the administrative authority for industry and commerce
at the registrant's location of the same in writing and transfer
the case to the Trademark Office for the corresponding actions.
Rule 38. Where a trademark registrant applies for the removal
of his registered trademark from the "Trademark Register",
he shall send an "Application for Trademark Removal"
to the Trademark Office and return the original "Certificate
of Trademark Registration" thereto.
Rule 39. Where a registered trademark is canceled or removed,
the Trademark Office shall publish the same in the "Trademark
Gazette". From the date of announcement of the cancellation
or removal thereof, there shall be no further existence of
the exclusive right to use the trademark. Where a registered
trademark is canceled, the administrative authority for industry
and commerce at the registrant's location shall recall the
"Certificate of Trademark Registration" in question
and transfer it to the Trademark Office.
Rule 40. Where any interested party is dissatisfied with
the decision made by the administrative authority for industry
and commerce under the provisions of Chapter VI of the Trademark
Law and Chapter V of these Regulations, he may, within fifteen
days from receipt of the notification of the decision, apply
to the administrative authority for industry and commerce
at the higher level for reconsideration of the decision. The
said authority at the higher level shall, within two months
from receipt of the application for reconsideration, make
a decision on it. Where any interested party is dissatisfied
with the decision on the reconsideration, he may, within fifteen
days from receipt of the notification of the decision, institute
legal proceedings with the people's court. If there has been
filed no application for reconsideration, instituted no legal
proceedings or made no performance of the decision at the
expiration of the specified period, the administrative authority
for industry and commerce shall request the people's court
for compulsory execution thereof.
Chapter 6: Protection of the Exclusive Right to Use a
Registered Trademark
Rule 41. Any of the following acts shall constitute an infringement
of the exclusive right to use a registered trademark as referred
to in Article 38 (4) of the Trademark Law. (1) to deal in
the goods that he knows or he should know have been involved
in an infringement of the exclusive right of another person
to use a registered trademark; (2) to use any word or device
that is identical with or similar to the registered trademark
of another person, in respect of the same or similar goods,
as the designation or decoration of the goods, which is so
sufficient as to mislead the public; and (3) to provide any
person intentionally with such facilities as of storage, transportation,
post service and concealment in his infringing the exclusive
right of another person to use a registered trademark.
Rule 42. Where the exclusive right to use a registered trademark
has infringed, any person may lodge a complaint with or report
the case of infringement to the administrative authority for
industry and commerce at or above the county level of the
infringer's location or of the place where the infringing
act was done. The infringee may otherwise institute legal
proceedings directly with people's court. Where the administrative
authority for industry and commerce considers that it has
constituted an infringement of the exclusive right to use
a registered trademark, it may exercise the following functions
and powers in its investigations to obtain evidences: (1)
to inquire of the interested parties about the case; (2) to
check up such articles as relate to the infringing act, and
to order to seal the same where necessary; (3) to investigate
into such acts as involved in the infringement; and (4) to
examine or reproduce such contracts, account books and any
other commercial data as connected with the infringing act.
When the administrative authority for industry and commerce
exercises such functions and powers as enumerated in the preceding
paragraph, the interested parties shall give assistance thereto
and must not refuse to do so.
Rule 43. Where the exclusive right to use a registered trademark
has been infringed, the administrative authority for industry
and commerce may take the following measures to stop the infringing
act: (1) to order to immediately stop the sale of the goods;
(2) to seize and destroy the representations of the trademark
in question; (3) to order to remove the infringing trademark
from the remaining goods; (4) to seize such molds, plates
and any other tools of offense as directly and exclusively
used in the trademark infringement; and (5) to order and supervise
to destroy the infringing articles if it cannot sufficiently
stop the infringing act to take such measures as enumerated
in the preceding four sub-paragraphs or if the infringing
trademark and the goods involved therein could hardly be separated
from each other. Where an 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, according to the case, impose a fine of not exceeding
50% of the amount of his illegal business or five times his
profit earned in the infringement. As for the person who is
directly responsible therefor of an organization that was
involved in an infringement of the exclusive right to use
a registered trademark, the administrative authority for industry
and commerce may, according to the case, impose a fin of not
exceeding 10,000 RMB Yuan. The administrative authority for
industry and commerce may, at the request of the infringee,
order the infringer to compensate for the damages suffered
by the infringee. Where any interested party is dissatisfied
therewith, he may institute legal proceedings with the people's
court.
Rule 44. Where any interested party is dissatisfied with
the decision made by the administrative authority for industry
and commerce under the provisions of Paragraph 1 and Paragraph
2 of the preceding article, he may, within fifteen days from
receipt of the notification of the decision, apply to the
administrative authority for industry and commerce at the
higher level for reconsideration of the decision. The said
authority at the higher level shall, within two months from
receipt of the application for reconsideration, make a decision
on it. Where any interested party is dissatisfied with the
decision on the reconsideration, he may, within fifteen days
from receipt of the notification of the decision, institute
legal proceedings with the people's court. If there has been
filed no application for reconsideration, instituted no legal
proceedings or made no performance of the decision at the
expiration of the specified period, the administrative authority
for industry and commerce shall request the people's court
for compulsory execution thereof.
Rule 45. Where any party passes off a registered trademark
of another person, any person may lodge a complaint with or
report the case of offense to the administrative authority
for industry and commerce or the procuratorial organ. If the
complaint is lodged with or the case of offense is reported
to the administrative authority for industry and commerce,
it shall be dealt be dealt with by the said authority according
to the provisions of Rule 43 of these Regulations. If the
case is so serious as to constitute a crime, any person responsible
for it shall be prosecuted, according to law, by the judicial
organ for his criminal liabilities.
Chapter 7: Supplementary Provisions
Rule 46. Where any party applies for review under the provisions
of Article 21, 22 or 35 of the Trademark Law or Rule 23 or
25 of these Regulations, he shall do it within the specified
period. In case of irresistible cases or any other fair reasons,
the interested party may ask for an extension of thirty days
before the expiration of the said period. It shall, however,
be up to the Trademark Review and Adjudication Board to decide
whether or not it is approvable. where a document is dispatched
or delivered by post, it shall be dated as that of the postmark.
In case the postmark is not clear or missing, the receiving
or sending date for the interested party shall respectively
be that twenty days after the Trademark Office dispatches
or twenty days before the Trademark Office receives the document
in question.
Rule 47. The forms of the application for a trademark registration
or for any other matters concerning a trademark shall be prescribed
and published by the State Administration for Industry and
Commerce. The schedule of fees in respect of applications
for a trademark registration and for any other matters concerning
a trademark shall be prescribed and published by the State
Administration for Industry and Commerce in accordance with
the relevant prescriptions of the State. The Classification
of Goods for the Purposes of the Registration of Trademarks
shall be published by the State Administration for Industry
and Commerce.
Rule 48. Where a service mark which has ever been used since
before July 1, 1993 is identical with or similar to any registered
service mark (other than a well-known service mark) of another
party in respect of the same or similar services, it may continue
to be used in accordance with the relevant regulations issued
by the State Administration for Industry and Commerce.
Rule 49. The State Administration for Industry and Commerce
shall be responsible for interpreting these Regulations.
Rule 50. These Regulations shall enter into force on the
date of the promulgation thereof.
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