Laws of the People's Republic of China

(Effective Date 1988.01.13)

CONTENTS

CHAPTER I GENERAL PRINCIPLES

CHAPTER II APPLICATION FOR TRADEMARK REGISTRATION

CHAPTER III EXAMINATION OF TRADEMARK REGISTRATION

CHAPTER IV MODIFICATION, ASSIGNMENT AND RENEWAL OF REGISTERED

TRADEMARKS AND ADJUDICATION OF DISPUTES

CHAPTER V CONTROL OF THE USE OF TRADEMARKS

CHAPTER VI PROTECTION OF THE EXCLUSIVE RIGHT TO USE REGISTERED

TRADEMARKS

CHAPTER VII SUPPLEMENTARY PRINCIPLES

CHAPTER I GENERAL PRINCIPLES

   Article 1. These Detailed Implementing Rules are formulated in accordance with the provisions of Article 42 of the Trademark Law of the People's Republic of China (hereinafter referred to as the Trademark Law).

   Article 2. An applicant for trademark registration shall be a legally registered enterprise or individual industrial or commercial household operation which is able to bear its civil liabilities independently, a public institution with corporate capacity or a foreigner or foreign enterprise which complies with the provisions of Article 9 of the Trademark Law.

   Article 3. An application for a matter such as registering a trademark, assigning registration, renewing registration, modifying registration of a person's name or address or the reissue of a trademark certificate shall be verified and passed on by the applicant's local administration for industry and commerce at county level or above (hereinafter referred to as the verification and transfer organ) or an organisation authorised by the State Administration for Industry and Commerce shall act as agent.

If a foreigner or a foreign enterprise applies to register a trademark in China or requires to carry out other matters concerning trademarks, an organisation designated by the State Administration for Industry and Commerce shall act as agent.

   Article 4. Fees shall be paid in accordance with regulations when applications are made for matters such as registering a trademark, assigning registration, renewing registration, modification, reissue or evaluation and examination.

   Article 5. The Trademark Office of the State Administration for Industry and Commerce (hereinafter referred to as the Trademark Office) shall establish a Register of trade in which it shall record registered trademarks and other matters concerning trademarks.

The Trademark Office shall design and arrange the printing and issue of Trademark Notices Which shall carry information on registered trademarks and other relevant matters.

   Article 6. Names of administrative areas at county level and above and foreign place names with which the public are familiar shall not be permitted to be used as trademarks.

A trademark using a name such as those outlined in the preceding paragraph which has already been verified, approved and registered shall continue to valid.

   Article 7. Pharmaceuticals for human use and tobacco products listed by the State and publicly announced by the State Administration for Industry and Commerce shall be required to use a registered trademark.

Other products stipulated by the State as requiring a registered trademark shall be publicly announced by the State Administration for Industry and Commerce.

   Article 8. The State Administration for Industry and Commerce shall establish a Trademark Review and Adjudication Board which shall evaluate and examine matters in accordance with the provisions of Articles 21, 22, 27 and 35 of the Trademark Law and Article 23 of these Detailed Implementing Rules and shall make final decisions and provide adjudication.

CHAPTER II APPLICATION FOR TRADEMARK REGISTRATION

   Article 9. When applying for trademark registration, applications shall be filed in accordance with the item category as prescribed in the commodity classification table. Each application for the registration of a trademark submitted to the Trademark Office shall include one copy of an Application for Trademark Registration, 10 copies of the design of the trademark (if a coloured trademark with specified colours, 10 copies of colour designs of the trademark shall be included) and one black and white ink draft.

The trademark design shall be distinct and easy to stick on, shall be printed on smooth, clean and durable paper or be substituted by a photograph and its length and width shall not exceed 10 cm or be less than 5 cm.

   Article 10. A fountain pen, in or a typewriter shall be used to complete applications for trademark registration and other related documents and writing shall be neat and clear.

The name and seal of the trademark registration applicant shall the same as that which has been verified and approved or registered. Items submitted shall not exceed the verified and approved or registered scope of operations of the applicant. The name of a commodity shall be filled in in accordance with the commodity classification table. If the name of a commodity has yet to be entered in the commodity classification table, a description of the item shall be attached.

   Article 11. If applying to register a trademark for a pharmaceutical for human use, a licence to produce pharmaceuticals or a licence to deal in pharmaceuticals which has been issued by a public health administrative department shall be attached.

If applying to register a trademark for cigarettes, cigars or packaged pipe tobacco, a certificate issued by the State organ in charge of tobacco authorising its production shall be attached.

If applying to register a trademark for any other item which requires a registered trademark in accordance with State regulations, a certificate of approval from the relevant department in charge shall be attached.

   Article 12. The date of application for the registration of a trademark shall be the date on which the Trademark Office receives the application. An application number shall be issued if application procedures are fulfilled and the application form is completed in accordance with regulations. If application procedures are not fulfilled or the application form is not completed in accordance with regulations, the form shall be returned and no date of application shall be retained.

   Article 13. If two or more applicants apply to register identical or similar trademarks for the same or a similar item on the same day, each applicant shall send proof of the date of first use of the trademark to the Trademark Office within the time limit stipulated by the Office in its letter of notification. If usage began on the same day or if yet to be used, the parties shall meet for discussion. If this consultation exceeds 30 days without resulting in an agreement, the Trademark Office shall make a ruling.

   Article 14. when a foreigner or a foreign enterprise applies to register a trademark or to handle another matter concerning a trademark, it shall complete the relevant forms in Chinese and shall provide its agent with a power of attorney. The power of attorney shall stipulate the scope of delegated authority and the nationality of the agent.

Notarisation and authentication procedures for a power of attorney or other relevant certificates shall be handled in accordance with the principle of reciprocity. Documents in a foreign language shall have a Chinese translation attached.

   Article 15. The Trademark Office shall accept and hear cases requesting priority handling of trademark registration. Detailed procedures shall be handled in accordance with regulations promulgated by the State Administration for Industry and Commerce.

CHAPTER III EXAMINATION OF TRADEMARK REGISTRATION

   Article 16. The Trademark Office shall examine applications which have been issued with an application number and those trademarks which pass preliminary examination and approval shall be reported in a Trademark Notice. If an application is rejected, the applicant shall be sent a rejection notice and a copy of this notice shall be sent to the verification and transfer organ.

   Article 17. If an applicant requests a review of a refused application, it shall lodge an Application for a Review of a Refused Trademark with the Trademark Review and Adjudication Board within 15 days of receiving the rejection notice and, at the same time, shall attach the original Application for Trademark Registration, 10 copies of the original trademark design, one copy of a black and white ink draft and the rejection notice. A copy of the Application for a review of a Refused Trademark shall be sent to the verification and transfer organ.

The Trademark Review and Adjudication Board shall issue written notification of its final decision to the applicant and a copy of the notice shall be sent to the verification and transfer organ. If the final decision is in favour of passing the preliminary examination and approval of a trademark, the matter shall be transferred to the Trademark Office for handling.

   Article 18. If there is an objection to a trademark which has been publicly announced by the Trademark Office following preliminary examination and approval, the dissenting party shall send two copies of its letter of dissension to the Trademark Office. The letter shall state clearly the date of the Trademark Notice which reported the trademark in question, the page number and its preliminary examination and approval number. The Trademark Office shall prescribe a time for the applicant to respond to the letter of dissension and shall make a ruling based on the facts and reasons provided by the parties concerned.If no response is given within the time prescribed, the Trademark Office shall make a ruling.

The trademark Office shall notify the parties concerned of its ruling on the dispute and shall send a copy of the notice to the verification and transfer organ.

   Article 19. A party dissatisfied with the ruling of the Trademark Office on a dispute shall send two copies of an Application for a Review of a Trademark Dispute to the Trademark Review and Adjudication Board within 15 days of receiving notification of the ruling on the trademark dispute, and shall also send a copy of the Application to the verification and transfer organ.

The Trademark Review and Adjudication Board shall issue written notification of its final decision to the parties concerned, shall send a copy to the verification and transfer organ and shall transfer the matter to the Trademark Office for handling.

CHAPTER IV MODIFICATION, ASSIGNMENT AND RENEWAL OF REGISTERED TRADEMARKS AND ADJUDICATION OF DISPUTES

   Article 20. If applying to modify the name of a trademark registrant, an Application to Modify the Name of a Trademark Registrant and certification of the modification shall be sent to the Trademark Office and the original Trademark Registration Certificate shall be returned. After verification and approval by the Trademark Office, the original Trademark Registration Certificate, with approval of modification noted on it, shall be returned to the applicant and a public announcement shall be made.

If applying to modify the address of a trademark registrant or other registered items, an Application to Modify the Address of a Trademark Registrant or an application to Modify Other Registered Items Pertaining to a Trademark, together with certification of the modification, shall be sent to the Trademark Office and the original Trademark Registration Certificate shall be returned. After verification and approval by the Trademark Office, the original Trademark Registration Certificate, with approval of modification noted on it, shall be returned to the applicant and a public announcement shall be made.

If modification is to be made to the name or address of a trademark registrant, the registrant shall modify all of its registered trademarks at the one time.

   Article 21. If applying to assign a registered trademark, an Application to Assign a Registered Trademark shall be sent to the Trademark Office and the original Trademark Registration Certificate shall be returned. The verification and transfer organ in the local district of the transferee shall handle matters of verification and transfer. A transferee shall meet the requirements of Article 2 of these Detailed Implementing Rules. After verification and approval by the Trademark Office, the original Trademark Registration Certificate, with approval of assignment noted on it, shall be issued to the assignee and a public announcement shall be made.

If a registered trademark is to be assigned, the trademark registrant shall assign all identical or similar trademarks for the same or similar goods at the one time. If a trademark for a commodity such as those prescribed in Article 7 of these Detailed Implementing Rules is assigned, the assignee shall provide a certificate from the relevant department in accordance with the provisions of Article 11 of these Detailed Implementing Rules.

   Article 22. If applying to renew the registration of a trademark, an Application to Renew a Registered Trademark and five copies of the trademark design shall be sent to the Trademark Office and the Trademark Registration Certificate shall be returned. After verification and approval by the Trademark Office, the original Trademark Registration Certificate, with approval of renewal noted on it, shall be returned to the applicant and a public announcement shall be made.

   Article 23. If an applicant disputes the decision of the Trademark Office to reject an application to assign or renew registration of a trademark, it shall lodge an Application for a Review of an Assignment Rejection or an Application for a Review of a Renewal rejection with the Trademark Review and Adjudication board within 15 days of receiving the rejection notice and, at the same time, shall attach the original Application to Assign a Registered Trademark or the Application to Renew a Registered Trademark and the rejection notice.

The Trademark Review and Adjudication Board shall issue written notification of its final decision to the applicant and send a copy of the notice to the verification and transfer organ. If the final decision is in favour of the assignment or renewal of trademark registration, the matter shall be transferred to the Trademark Office for handling.

   Article 24. If a trademark registrant disputes a trademark already registered by another party, it shall lodge two copies of an Application for Adjudication of a Trademark Dispute with the Trademark Review and Adjudication Board within one year of the date of publication of the trademark registration.

If the Trademark Review and Adjudication Board rules in favour of cancelling the disputed trademark, the matter shall be transferred to the Trademark Office for handling, a public announcement shall be made and a copy of the decision shall be sent to the verification and transfer organ. The party which had the dispute brought against it shall, within 15 days of receiving notice of the final ruling on the trademark dispute, hand the original Trademark Registration Certificate to the local verification and transfer organ for its subsequent transfer to the Trademark Office.

   Article 25. Any party which believes that an improper trademark has been registered may lodge an Application for Adjudication on the Cancellation of the Registration of an Improper Trademark, except in a case where a ruling on a dispute has already been made.

If the Trademark Review and Adjudication Board rules in favour of cancelling a disputed trademark, the matter shall be transferred to the Trademark Office for handling, a public announcement shall be made and a copy of the decision shall be sent to the verification and transfer organ. The original trademark registrant shall, within 15 days of receiving notice of the cancellation ruling, hand the original Trademark Registration Certificate to the local verification and transfer organ for its subsequent transfer to the Trademark Office.

CHAPTER V CONTROL OF THE USE OF TRADEMARKS

   Article 26. If a registered trademarks is used, the characters Registered Trademark or the symbol for registration or (R) shall be marked. If it is unsuitable to mark a product itself, the registered trademark shall be noted on its packaging, in is instruction booklet or on other attachments.

   Article 27. If a Trademark Registration Certificate is lost or damaged, an application shall be made for it to be reissued. The applicant shall lodge an Application for the Reissue if a Trademark Certificate and five copies of the trademark design to the Trademark Office. If the Trademark Registration Certificate has been lost, a lost property notice shall be placed in a newspaper issued at provincial level or above and a copy of the newspaper shall be sent to the trademark Office. If the Trademark Registration Certificate has been damaged, it shall be sent to the Trademark Office.

   Article 28. If any of the acts referred to in items (1), (2) or (3) of Article 30 of the Trademark Law occur, the administration for industry and commerce shall notify the trademark registrant to rectify the matter within a stipulated period. If the registrant refuses to rectify the situation, the administration for industry and commerce in the local district of the registrant shall request the Trademark Office to cancel the registered trademark.

   Article 29. Any person may apply to the Trademark Office for the registration of a trademark to be cancelled if the provisions of item (4) of Article 30 of the Trademark Law apply. The Trademark Office shall notify the trademark registrant to provide, within a specified period, proof of use of its trademark. If proof of use is not provided within the specified period or if it is not valid, the Trademark Office shall cancel the registered trademark.

Use of a trademark as referred to in the preceding paragraph shall include use in advertising or exhibitions.

   Article 30. The restrictions of the provisions of Article 32 of the Trademark Law shall not apply to an application to register, for an identical or similar commodity, a trademark which is identical with or similar to one which is cancelled in accordance with the provisions of Article 29 of these Detailed Implementing Rules.

   Article 31. In a case where the provisions of Article 31 and item (3) of Article 34 of the Trademark Law apply, the administration for industry and commerce shall order the matter to be rectified in a stipulated period. In a serious case, it shall order self-criticism to be undertaken, circulate a notice of criticism and impose a fine of up to 20% of the amount made through the illegal operations or up to two times the illegal profit. Goods which are poisonous or harmful and which are without a use value shall be destroyed by melting or burning. If a registered trademark has been used, it shall be cancelled in accordance with the provisions prescribed in the Trademark Law.

   Article 32. In a case where the provisions of items (1) or (2) Article 34 of the Trademark Law or Article 6 of these Detailed Implementing Rules apply, the administration for industry and commerce shall prohibit the goods from being advertised and shall seal up for safekeeping or take custody of the trademark symbol, order the matter to be rectified in a specified period and, depending on the seriousness of the case, may circulate a notice of criticism and impose a fine of up to 20% of the amount made through the illegal operations.

   Article 33. In a case where the provisions of Article 5 of the Trademark Law are violated, the administration for industry and commerce shall prohibit the sale and advertising of the goods in question, shall seal up for safekeeping or take custody of the trademark symbol and, depending on the seriousness of the case, may impose a fine of up to 10% of the amount made through the illegal operations.

   Article 34. No person shall be permitted to illegally print, make, purchase or sell trademark symbols.

If the provisions of the preceding paragraph are violated, the administration for industry and commerce shall halt the activity, take custody of any trademark symbols and, depending on the seriousness of the case, may issue a fine of up to 20% of the amount made through the illegal operations. If a party is selling symbols of its own registered trademark, the Trademark Office may also cancel its registered trademark. If the case involves violation of the exclusive right to use a registered trademark, the matter shall be handled in accordance with the provisions of Article 43 of these Detailed Implementing Rules.

   Article 35. If a trademark registrant permits another party to use its registered trademark, a trademark usage licence agreement shall be signed. The licensor shall send, within a stipulated period, a copy of the licence agreement to its local administration for industry and commerce at county level for reference filing. This organ shall then report details of the matter to the Trademark Office for its records.

If the provisions of the preceding paragraph are violated, the administration for industry and commerce shall order the matter to be rectified within a stipulated period. If the parties concerned refuse to rectify the matter,the licensor's local administration for industry and commerce shall ask the Trademark Office to cancel the registered trademark and shall take custody of the trademark symbols of the licensee.

   Article 36. If a trademark registrant permits another party to use its registered trademark, the licensee shall meet the requirements prescribed in Article 2 of these Detailed Implementing Rules.

If a party with permission to use a trademark requires to use it on a commodity such as those prescribed in Article 7 of these Detailed Implementing Rules, the licensee shall attach a certificate from the relevant department, in accordance with Article 11 of these Detailed Implementing Rules, when sending a copy of the licence agreement for reference filing.

   Article 37. If the Trademark Office makes a decision to cancel a trademark registration in accordance with the provisions of Article 30 or 31 of the Trademark Law or Articles 34 or 35 of these Detailed Implementing Rules, written notification shall be sent to the trademark registrant and, at the same time, a copy of the notice shall be sent to the original verification and transfer organ. This organ shall take custody of the Trademark Registration Certificate and shall return it to the Trademark Office.

Trademarks which are revoked or cancelled by the Trademark Office shall be announced publicly.

   Article 38. If a trademark registrant applies to cancel its registered trademark, it shall lodge an Application to Cancel a Trademark with the Trademark Office and shall return its original Trademark Registration Certificate.

   Article 39. If a trademark registrant disagrees with the decision of the Trademark Office to revoke its registered trademark, it shall lodge an Application to Review the Revoking of a Trademark to the Trademark Review and Adjudication Board within 15 days of receiving notice of the revocation ruling.

The Trademark Review and Adjudication Board shall issue written notification of its final decision to the trademark registrant and shall also send a copy of the notice to the original verification and transfer organ. If the final decision rescinds the revocation ruling, the matter shall be transferred to the Trademark Office for handling.

   Article 40. If a party disagrees with a decision relating to the handling of a case (except a decision to revoke a trademark registration)as made by the administration for industry and commerce in accordance with the provision of Articles 31, 33, 34 or 35 of these Detailed Implementing Rules, the Party concerned, within 15 days of receiving such notification,may apply to a higher level administration for industry and commerce for a review. The higher level administration for industry and commerce shall issue a decision on the review within 45 days of receiving the review application. If a party disagrees with the fine imposed by a higher level administration for industry and commerce in its review decision made in accordance with the provisions of Articles 31, 32, 33 or 34 of these Detailed Implementing Rules, the party concerned may file a suit in the People's Court within 15 days of receiving notification of the review decision. If the party fails to initiate legal proceedings and fails to comply with the decision within the time prescribed, the administration for industry and commerce shall apply to the People's Court for enforcement.

CHAPTER VI PROTECTION OF THE EXCLUSIVE RIGHT TO USE REGISTERED TRADEMARKS

   Article 41. Any of the following acts shall constitute an infringement of the exclusive right to use a registered trademark as referred to in item (3) of Article 38 of the Trademark Law:

(1) Dealing in goods which infringe on the exclusive right of another party to use a registered trademark;

(2) Using, as the name or decoration on a commodity, a script or pattern which is identical or similar to the registered trademark of another party which uses it on the same or similar goods, with the similarity being sufficient to cause mistaken identity;

(3) Deliberately providing convenience in areas such as storage, transport, postage and concealment in order to allow the infringement of the exclusive right of another party to use a registered trademark.

   Article 42. In the case of an act infringing on the exclusive right to use a registered trademark, any person may report to the administration of industry and commerce at county level or above in the district of the infringer or the district where the act of infringement has occurred in order to lodge a complaint or to inform against an offender. The infringed may also directly file a suit in the People's Court.

   Article 43. In the case of an act infringing on the exclusive right to use a registered trademark, the administration for industry and commerce shall order the immediate halting of the activity, seal up for safekeeping or take custody of the trademark symbols, order the removal of the trademark from existing goods and packaging and order that the infringed is compensated for any economic losses incurred. A notice of criticism may be circulated and a fine of up to 20% of the amount made in the illegal operations or up to two times the profit gained through the infringement may be imposed, depending on the seriousness of the case.

   Article 44. If a party disagrees with a decision on the handling of a case as made by the administration for industry and commerce in accordance with the provisions of the preceding Article, the party concerned, within 15 days of receiving notice of the decision, may lodge an application with a higher level administration for industry and commerce for a review. The higher level administration for industry and commerce shall issue a decision on the review within 45 days of receiving the review application. If a party disagrees with the review decision of the higher level administration for industry and commerce, it may file a suit in the People's Court within 15 days of receiving notification of the review decision. If the party fails to initiate legal proceedings and fails to comply with the decision within the time prescribed, the administration for industry and commerce shall apply to the People's Court for enforcement.

   Article 45. Any person may report to the administration for industry and commerce to lodge a complaint or inform on an offender if a fake trademark is being passed off as the registered trademark of another party.

After receiving a complaint or information on such a matter, the administration for industry and commerce shall handle the matter in accordance with the provisions of Article 43 of these Detailed Implementing Rules. If the matter is serious enough to constitute a criminal offence, the judicial organs shall investigate the criminal liability of persons directly involved in accordance with the law.

   Article 46. A party which requests a review of a case in accordance with the provisions of Articles 21, 22 or 35 of the Trademark Law or Article 23 of these Detailed Implementing Rules or reconsideration of a decision in accordance with the provisions of Article 40 or 44 of these detailed Implementing Rules shall complete application procedures within the time prescribed. In special circumstances, an application for an extension of 30 days may be lodged before the expiry of the time limit. An application for a further extension of 30 days may be lodged before the expiry of the first period of extension if the time is still insufficient to complete all relevant matters.

CHAPTER VII SUPPLEMENTARY PRINCIPLES

   Article 47. The format of documents for application for trademark registration or the handling of other matters concerning trademarks shall be formulated and announced by the State Administration for Industry and Commerce.

Fee standards for applications for trademark registration or the handling other matters concerning trademarks shall be formulated and announced by the State Administration for Industry and Commerce.

The commodity classification table for trademark registration shall be announced by the State Administration for Industry and commerce.

   Article 48. The State Administration for Industry and Commerce shall be responsible for the interpretation of these Detailed Implementing Rules.

   Article 49. These Detailed Implementing Rules shall take effect from the date of promulgation.

The Detailed Regulations for the Implementation of the Trademark Law of the People's Republic of China, promulgated 10 March 1983, shall be nullified simultaneously.