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Trademark Law of the People's Republic of China
From: www.saic.gov.cn
(Adopted at the 24th Session of the Standing Committee of the Fifth National People’s Congress on 23 August 1982; first amended by the “Decision Regarding the Revision of the Trademark Law of the People’s Republic of China”, adopted at the 30th Session of the Standing Committee of the Seventh National People’s Congress on February 22, 1993; again amended by the “Decision Regarding the Revision of the Trademark Law of the People’s Republic of China,” adopted at the 24th Session of the Standing Committee of the Ninth National People’s Congress on 27 October 2001.)
Table of Contents
Chapter 1 General Provisions
Chapter 2 Application for Trademark Registration
Chapter 3 Examination and Approval of Trademark Registration
Chapter 4 Renewal, Assignment, and Licensing of Registered Trademarks
Chapter 5 Adjudication of Disputes Involving Registered Trademarks
Chapter 6 Administration of Trademark Use
Chapter 7 Protection of the Exclusive Rights to Use Registered Trademarks
Chapter 8 Supplementary Provisions
Chapter 1 General Provisions
Article 1 This Law is enacted for the purposes of improving the administration of trademarks, protecting the exclusive right to use a trademark, and encouraging producers to guarantee the quality of their goods and maintain the reputation of their trademarks, with a view towards protecting consumers’ interests and promoting the development of a socialist market economy.
Article 2 The Trademark Office of the State Administration for Industry and Commerce under the State Council shall be responsible for the registration and administration of trademarks throughout the country.
Article 3 A registered trademark means a trademark that has been approved and registered by the Trademark Office. A trademark registrant shall enjoy an exclusive right to use the trademark, which shall be protected by law.
For the purposes of this law, a collective mark is a mark registered in the name of a group, association, or any other organization and used by its members to indicate membership.
For the purposes of this law, a certification mark is a mark which is owned by an organization that exercises supervision over a particular product or service and which is used to indicate that third-party goods or services meet certain standards pertaining to place of origin, raw materials, mode of manufacture, quality, or other characteristics.
Particulars pertaining to the registration and administration of collective marks and certification marks shall be formulated by the State Administration for Industry and Commerce under the State Council.
Article 4 Any natural person, legal person, or other organization desirous of acquiring the exclusive right to use a trademark for the goods produced, manufactured, processed, selected, or marketed by it or him shall file an application for the registration of the goods mark with the Trademark Office. Any natural person, legal person, or other organization desirous of acquiring the exclusive right to use a service mark for the services provided by it or him shall file an application for the registration of the service mark with the Trademark Office.
The provisions in this law concerning goods trademarks shall apply to service marks.
Article 5 Two or more natural persons, legal persons, or other organizations may jointly file an application for the registration of a trademark and jointly enjoy and exercise an exclusive right to use the mark.
Article 6 For goods that must be used in connection with a registered trademark as prescribed by the State, a trademark registration must be applied for. Where no trademark registration has been granted, such goods cannot be sold on the marked.
Article 7 Any user of a trademark shall be responsible for the quality of the goods in connection with which the trademark is used. The administrative authorities for industry and commerce at all level shall exercise supervision over the quality of the goods and shall prohibit any practice that defrauds the consumer.
Article 8 An application may be made to register as a trademark any word, device, any letter of the alphabet, any number, three-dimensional symbol, and colour combination, or any combination thereof, that identifies an distinguishes the goods of a natural person, legal person, or other organization from those of others.
Article 9 A trademark seeking registration shall be so distinctive as to be distinguishable and shall not infringe upon the prior legitimate rights of others.
A trademark registrant shall have the right to display the wording “Registered Trademark” or a sign indicating that it is registered.
Article 10 The following words or devices shall not be used as trademarks:
1) Those identical with or similar to the State name, national flag, national emblem, military flag, or decorations, of the People’s Republic of China; those identical with the names of the specific locations that are seats of central state organs; or those identical with the names or designs of landmark buildings;
2) those identical with or similar to the state names, national flags, national emblems or military flags of foreign countries, except with the permission of the government of the country involved;
3) those identical with or similar to the flags, emblems, or names of international inter-governmental organizations, except with the permission of the organization concerned or where no likelihood of public confusion exists;
4) those identical with or similar to an official mark or inspection seal that indicates control and guarantee, except where authorized;
5) those identical with or similar to the symbols or names of the Red Cross or the Red Crescent;
6) those that discriminate against any nationality;
7) those in the nature of exaggeration and fraud in advertising; and
8) those detrimental to socialist morals or customs, or having other unhealthy influences.
The geographical names of administrative divisions at or above the county level and foreign geographical names well-known to the public shall not be used as trademarks, except for geographical names that have other meaning or constitute part of a collective mark or certification mark. Registered trademarks that use geographical names shall continue to be valid.
Article 11 The following marks are not registrable as a trademark:
1) Names, devices, or designs that are generic to a class or group of goods;
2) Marks that merely indicate the quality, principal raw materials, function, use, weight, quantity or other features of the goods in respect of which the marks are used;
3) Marks that lack distinctive characteristics.
A mark to which the above provisions are applicable but which has acquired distinctiveness through use and is readily distinguishable may be registrable as a trademark.
Article 12 Registration shall be refused where a three-dimensional design merely indicates the shape inherent in the nature of the goods concerned. Registration also shall be refused where a three-dimensional design is only dictated by the need to achieve technical effects or the need to give the goods substantive value.
Article 13 Where a mark is a reproduction, imitation, or translation of a third-party’s famous trademark which has not been registered in China and where the goods are identical or similar, which may cause public confusion and damage the interests of the registrant of the famous mark, no registration shall be granted and the use of the mark shall be prohibited.
Where a mark is a reproduction, imitation, or translation of a third-party’s famous trademark which has been registered in China and where the goods are not identical or dissimilar, which may mislead the public and cause injury to the interests of the registrant of the famous trademark, no registration shall be granted and the use of the mark shall be prohibited.
Article 14 The following factors shall be considered in determining whether or not a mark is a famous trademark:
1) The degree of public recognition of the mark in its trading areas;
2) how long the mark has been in use;
3) the duration and extent of advertising and publicity of the mark, and the geographical extent of the trading areas in which the mark is used;
4) the protection of the mark as a famous trademark; and
5) other reasons for the fame of the trademark.
Article 15 Where an agent or representative, without the authorization of the principal, seeks to register in the agent’s name the principal’s trademark and where the principal objects, registration shall be refused and the use of the mark shall be prohibited.
Article 16 Where a trademark includes a geographical sign that does not describe the location or the origin of the goods in question, the term causes confusion among members of the public and shall be refused registration. Its use as a trademark also shall be prohibited. However, where a registration has been obtained in goodwill, such registration shall continue to be valid.
The geographical sign referred to in the above paragraph means that it is the place of orign on the goods at issue and that the special qualities, reputation or other characteristics of the goods are primarily determined by the natural conditions or other humanistic conditions of the geographical location involved.
Article 17 Any foreigner or foreign enterprise desirous of applying for the registration of a trademark in China shall file an application in accordance with any agreement concluded between the People’s Republic of China and country to which the applicant belongs, or according to the international treaty to which both countries are parties, or on the basis of the principle of reciprocity.
Article 18 Any foreigner of foreign enterprise desirous of applying for the registration of a trademark or processing any other trademark matters in China shall retain any of the organizations designated by the State to be his or its agent.
Chapter 2 Application for Trademark Registration
Article 19 A trademark registration applicant shall indicate on the application the class of goods and describe the goods with which the mark is used, based on the prescribed schedule of classes of goods.
Article 20 Where the applicant intends to use the same trademark for goods in different classes, an application shall be filed for each class based on the prescribed schedule of classes of goods.
Article 21 Where a trademark registrant intends to use the trademark in connection with other goods in the same class for which the registration was granted, a new application shall be filed.
Article 22 Where any word or device of a registered trademark is to be altered, a new application shall be filed.
Article 23 Where, after the registration of a trademark, the name, address, or other matters pertaining to the registrant change, an application regarding the change shall be filed.
Article 24 An application for registration of a mark filed by a party that has previously duly filed an application to register the same mark in connection with the same goods in a foreign country shall be accorded priority in accordance with any agreement concluded between the PRC and the foreign country concerned, or with the international treaty to which both countries are parties, or on the basis of the principle of reciprocity, provided that the application in China is filed within six months from the date on which the application was first filed in the foreign country.
An applicant claiming priority in accordance with the above provision shall so state in writing at the time of filing the application and shall submit within three months a copy of the original trademark application. An applicant who fails to claim priority in writing or to submit a copy of the original trademark application by the specified time shall be deemed as not claiming priority.
Article 25 Where an applicant uses a trademark for the first time on goods displayed at an international exhibition organized or recognized by the Chinese Government, it may claim priority provided it files an application to register the mark within six months from the date of the exhibition.
An applicant claiming priority in accordance with the above provision shall so state in writing at the time of filing the application and shall submit within three months the name of the exhibition, evidence proving the use of the mark on the goods displayed, and documents validating the date of the exhibition. An applicant who fails to claim priority in writing or to submit the papers shall be deemed as not claiming priority.
Article 26 Matters submitted in the trademark application and all information provided shall be truthful, accurate, and complete.
Chapter 3 Examination and Approval of Trademark Application
Article 27 Where a trademark application complies with the relevant provisions of this Law, it shall be approved for publication by the Trademark Office after examination.
Article 28 Where a trademark application does not complies with the relevant provisions in this Law or is identical with or similar to a registered trademark used in connection with the same or similar goods, its registration shall be refused by the Trademark Office after examination and the mark shall not be published.
Article 29 Where two or more applicants apply to register identical or similar trademarks for use in connection with the same or similar goods, the Trademark Office shall first examine and approve for publication the mark with the earliest application date. Where the applications are filed on the same date, the Trademark Office shall first examine and approve for publication the mark with the earliest date of use. Registration of the other trademark applications shall be refused and the marks shall not be published.
Article 30 Any person may, within three months from the date of publication, file to oppose a trademark application that has been published after a preliminary examination and approval. Where no opposition is filed after three months, the application shall be approved for registration, a certificate of registration shall issue, and the mark shall be published.
Article 31 No trademark application shall infringe upon another party’s existing prior rights. Nor shall an applicant rush to register in an unfair manner a mark that is already in use by another party and enjoys substantial influence.
Article 32 Where registration is refused and the mark has not been published, the Trademark Office shall notify the applicant of the refusal in writing. Where the applicant is dissatisfied, it may, within fifteen days from receipt of the notification, apply for a review. The Trademark Review and Adjudication Board shall make a final decision and notify the applicant in writing.
Where the applicant is dissatisfied with the decision of the Trademark Review and Adjudication Board, it may appeal to the People’s Court within 30 days from receipt of the notification.
Article 33 Where an opposition is filed against a trademark published after preliminary examination, the Trademark Office shall hear the facts and grounds submitted by the opposer and the opposed and shall make a decision after investigation and verification. Where a party is dissatisfied with the decision, it may, within 15 days from the receipt of notification, apply in writing to the Trademark Review and Adjudication Board for a review. The Trademark Review and Adjudication Board shall rule on the case and shall notify both the opposer and the applicant in writing accordingly.
Where a party is dissatisfied with the ruling of the Trademark Review and Adjudication Board, it may file institute legal proceedings with a People’s Court within thirty days from the receipt of notification. The People’s Court shall notify the other party in the trademark review proceedings, which shall participate in the proceedings as third party.
Article 34 Where an applicant fails to apply to the Trademark Office for a review of the Office’s decision or to institute legal proceedings with a People’s Court contesting the decision of the Trademark Review and Adjudication Board within the statutory time limits, the decision shall go into effect.
If the opposition is rejected, the mark shall be approved for registration, a certificate of registration shall issue, and the mark shall be published. Where the opposition is upheld, registration of the mark shall be refused.
Where the board or the court rules against the opposer and approves the trademark for registration, the applicant may date its exclusive right to use the mark from three months after the date of publication of the mark following its preliminary examination.
Article 35 Trademark applications and applications for review shall be examined promptly.
Article 36 Where a trademark applicant or trademark registrant discovers an obvious error on the trademark application or on the certificate of registration, it may apply to have it corrected. The Trademark Office shall make corrections to the extent permitted by its functions and powers in accordance with the law and shall notify the party concerned.
The correction of errors provided for in the above paragraph shall not involve substantive matters in the application or registration documents.
Chapter 4 Renewal, Assignment, and Licensing of Trademark Registrations
Article 37 A trademark registration shall remain valid for a period of ten years from the date of approval for registration.
Article 38 Where the registrant intends to continue to use the registered trademark beyond the 10-year period, an application to renew the registration shall be make within six months prior to the date of expiration. Where no application for renewal is filed within the six-month period, a grace period of six months is allowed. If no application for renewal is filed at the expiration of the grace period, the registered trademark shall be cancelled.
A trademark registration may be renewed each time for a period of ten years.
After a trademark registration is renewed, it shall be published.
Article 39 To assign a registered trademark, the assignor and assignee shall sign a transfer agreement and jointly file an application with the Trademark Office. The assignee shall guarantee the quality of the goods in connection with which the mark is used.
The assignment of a registered trademark shall be published after it has been approved. The assignee shall enjoy exclusive right to use the mark starting from the date of publication.
Article 40 A trademark registrant may, by signing a trademark licensing agreement, authorize other parties to use its registered trademark. The licenser shall supervise the quality of the goods in connection with which the licensee uses its registered trademark and the licensee shall guarantee the quality of the goods in respect of which the registered trademark is used.
Where a party is licensed to use another party’s registered trademark, the name of the licensee and the place of origins of the goods must be indicated on the goods that bear the registered trademark.
The trademark licensing agreement shall be submitted to the Trademark Office for record.
Chapter 5 Adjudication of disputes Concerning Registered Trademarks
Article 41 Where a trademark registration violates the provisions of Articles 10, 11, and 12 of this Law, or the registration of a trademark was acquired by fraud or any other improper means, the Trademark Office shall cancel the registration at issue. Any organization or individual may request that the Trademark Review and Adjudication Board make a ruling to cancel such a registered trademark.
Where a registration violates the provisions of Articles 13, 15, 16, or 31 of this Law, the owner of a trademark or any interested party may, within five years from the date of registration, request that the Trademark Review and Adjudication Board make a ruling to cancel the registration. Where the registration was obtained with ill will, the owner of a famous trademark shall not be bound by the five-year limitation.
In addition to those cases as provided for in the two preceding paragraphs, any party desirous of contesting a trademark registration, may, within five years from the date of approval of the registration, apply to the Trademark Review and Adjudication Board for adjudication.
The Trademark Review and Adjudication Board shall, after receipt of the application for adjudication, notify the interested parties and request them to submit arguments by a specified time.
Article 42 No application for adjudication shall be filed against a trademark that has been the subject of opposition and decision prior to registration based on the same facts and grounds.
Article 43 After the Trademark Review and Adjudication Board has make a final ruling either to maintain or to cancel a registered trademark, it shall notify the interested parties accordingly in writing.
Where the interested party is dissatisfied with the ruling of the Trademark Review and Adjudication Board, it may, within thirty days from the receipt of notification, institute legal proceedings in a People’s Court. The People’s Court shall notify the other interested parties in the trademark adjudication proceedings to take part in the legal proceedings as third parties.
Chapter 6 Administration of the Use of Trademarks
Article 44 Where a trademark registrant commits any of the following, the Trademark Office shall order it to rectify the situation by a specified time or cancel the registered trademark:
1) Altering the registered trademark without approval;
2) Altering the name, address, or other matters concerning the registrant without approval;
3) Assigning the trademark without approval; or
4) Ceasing to use the registered trademark for three consecutive years.
Article 45 Where registered trademark is used in connection with shoddily manufactured goods or with inferior-quality goods passed off as superior-quality ones so as to deceive consumers, the administrative authorities for industry and commerce at any level shall order that the situation be rectified by a specified time and, depending on the circumstances, circulate a notice of criticism or impose a fine. The Trademark Office also may cancel the registered trademark.
Article 46 Where a registered trademark has been cancelled or has not been renewed upon expiration, the Trademark Office shall not approve any application for the registration of a trademark that is identical to or similar with the said trademark for a period of one year from the date of cancellation or the date of expiration.
Article 47 Where a party violates the provisions of Article 6 of this Law, the local administrative authority for industry and commerce shall order it to file an application to register the mark within a specified period and may, in addition, impose a fine.
Article 48 Where a party that uses an unregistered trademark has committed any of the following, the local administrative authority for industry and commerce shall prohibit the use of the trademark, order the party to rectify the situation within a specified period, and may, in addition, circulate a notice of criticism or impose a fine:
1) Misrepresenting the trademark as registered;
2) Violating the provision of Article 10 of this Law; or
3) Using the mark in connection with shoddily manufactured goods or inferior-quality goods passed off as superior-quality ones in order to deceive consumers.
Article 49 A party that is dissatisfied with the decision of the Trademark Office to cancel a registration may, within fifteen days from receipt of notification, apply to the Trademark Review and Adjudication Board for a review. The Trademark Review and Adjudication Board shall make a decision and notify the applicant in writing.
If the party is dissatisfied with the decision of the Trademark Review and Adjudication Board, it may institute legal proceedings with a People’s Court within 30 days from receipt of notification.
Article 50 Where the party involved is dissatisfied with the decision of the administrative authority for industry and commerce to impose a fine under Article 45, 47, or 48 of this Law, within 15 days from receipt of notification, institute legal proceedings with a People’s Court. Where the party neither complies with the decision nor institutes legal proceedings within a specified period, the administrative authority for industry and commerce concerned may request a People’s Court to enforce the decision.
Chapter 7 Protection of the Exclusive Rights to Use Registered Trademarks
Article 51 The exclusive right to use a registered trademark is limited to the trademark which has been approved for registration and to the goods in connection with which the trademark is to be used.
Article 52 Any of the following constitutes an infringement of the exclusive right to use a registered trademark:
1) Using a trademark that is identical with or similar to a registered trademark in connection with the same or similar goods without the authorization of the owner of the registered trademark;
2) Selling goods that violate the exclusive right to use a registered trademark;
3) Counterfeiting, or making, without authorization, representations of another party’s registered trademark, or selling such representations;
4) Altering another party’s registered trademark without authorization and selling goods bearing such an altered trademark; and
5) Otherwise causing prejudice to another party’s exclusive right to use its registered trademark.
Article 53 When a dispute arises after a party commits any of the acts infringing upon another party’s exclusive right to use a registered trademark as enumerated in Article 52 of this Law, the parties involved shall settle the dispute through consultation. Where the parties refuse to pursue consultation or where consultation has failed, the trademark registrant or any interested party may institute legal proceedings with a People’s Court or ask the administrative authority for industry and commerce to handle the matter. Upon determining that trademark infringement has taken place, the administrative authority for industry and commerce shall order the infringer to cease its infringing activity immediately, confiscate and destroy the infringing goods and any instruments specifically used to manufacture the infringing goods and counterfeit registered trademark, and even impose a fine. Where the party is dissatisfied with the decision of the administrative authority for industry and commerce, it may, within 15 days from the receipt of notification, institute legal proceedings with a People’s Court in accordance with the Administrative Procedural Law of the People’s Republic of China. Where the infringer neither institutes legal proceedings nor complies with the decision within the specified period, the administrative authority for industry and commerce may request that the People’s Court enforce its decision. Where a party so requests, the administrative authority for industry and commerce handling a dispute may mediate in settling the amount of damages. Where mediation fails, a party may institute legal proceedings with a People’s Court in accordance with the Civil Procedural Law of the People’s Republic of China.
Article 54 The administrative authority for industry and commerce is authorized to investigate any conduct infringing upon the exclusive right to use a registered trademark. Where a crime is suspected to have been committed, the administrative authority for industry and commerce shall promptly turn over the case to the judicial department to be dealt with in accordance with the law.
Article 55 Administrative authorities for industry and commerce above the county level may, based upon existing evidence of illegal conduct or information supplied by a member of the public, exercise the following powers in investigating activities suspected of having infringed upon another party’s exclusive right to use a registered trademark:
1) Question the parties involved and investigate the circumstances surrounding the infringement of another party’s exclusive right to use a registered trademark;
2) Study and copy the parties’ contracts, invoices, books, and other materials pertaining to the trademark-infringing activities;
3) Conduct an on-site inspection of the premises where the party has carried out activities allegedly infringing upon another party’s exclusive right to use a registered trademark; and
4) Inspect articles involved in trademark-infringing activities. Articles that are proven to have infringed upon another party’s exclusive right to use a registered trademark may be sealed and taken into custody.
The parties involved shall assist and cooperate with the administrative authority for industry and commerce as the latter exercises the powers provided for in the above paragraph in accordance with the law and shall not refuse or obstruct questioning or inspection.
Article 56 The amount of damages for trademark infringement shall be the profit that the infringer has earned as a result of the infringement during the period of the infringement or the losses that the infringee has suffered as a result of the infringement during the period of the infringement, including any reasonable expenses the infringee has incurred in its effort to stop the infringement.
Where the profits earned by the infringer or losses suffered by the infringee referred to in the above paragraph cannot be determined, a People’s Court shall award damages up to 500,000 yuan, depending on the facts of the case.
Where a party unknowingly sells goods that infringe upon another party’s exclusive right to use a registered trademark but can prove that it has obtained the goods lawfully and is able to identify the supplier, it shall not be held liable for damages.
Article 57 Where a trademark registrant or any interested party submits evidence proving that another party is engaged in or will soon engage in actions that infringe upon the former’s exclusive right to use its registered trademark and that, unless they are stopped promptly, will cause irreparable injury to its legitimate rights and interests, may, before filing a lawsuit, apply to a People’s Court for the granting of an injunction prohibiting the actions and protecting its assets.
The People’s Court shall apply the provisions in Articles 93 through 96 and in Article 99 of the Civil Procedural Law of the People’s Republic of China in handling the application provided for in the above paragraph.
Article 58 With a view towards prohibiting trademark-infringing activities and where evidence may be destroyed or lost or become unobtainable in the future, a trademark registrant or an interested party may, prior to filing a lawsuit, apply to a People’s Court to have evidence preserved.
The People’s Court shall make a ruling within 48 hours from the acceptance of the application. A ruling to have evidence preserved must be enforced immediately.
The People’s Court may order the applicant to provide security. Where no security is provided, the People’s Court may reject the application.
Where the applicant fails to institute legal proceedings within 15 days after the People’s Court grants the protective measure, the People’s Court shall rescind the protective measure.
Article 59 Where a party, without the authorization of a trademark registrant, uses a mark identical to the registrant’s mark and on the same goods as those in connection with which the registered mark is used, and where the case is so serious as to constitute a crime, the party shall be prosecuted, according to the law, for its criminal liabilities in addition to being required to compensate the infringee for the damages suffered by the infringee.
Where a party counterfeits, or makes, without authorization, representations of another party’s registered trademark, or sells such representations, and the case is so serious as to constitute a crime, the party shall be prosecuted, according to the law, for its criminal liabilities in addition to being required to compensate the infringee for the damages suffered by the infringee.
Where a party sells goods that it knows bears a counterfeit registered trademark, and the case is so serious as to constitute a crime, the party shall be prosecuted, according to the law, for its criminal liabilities in addition to being required to compensate the infringee for the damages suffered by the infringee.
Article 60 State personnel engaged in trademark registration, administration, and review shall be impartial in implementing the law, incorruptible and self-disciplined, and devoted to their duty, and shall provide civilized services.
State personnel in the Trademark Office and the Trademark Review and Adjudication Board and other personnel engaged in trademark registration, management, and review shall not be involved in trademark agency services or in the production or buying and selling of goods.
Article 61 Administrative authorities for industry and commerce shall establish and perfect an internal supervisory system to supervise and inspect the way state personnel responsible for trademark registration, administration, and review implement the law and administrative rules and regulations and observe discipline.
Article 62 Where state personnel engaged in trademark registration, administration, and review are derelict of duty, abuse their office, and practice fraud for personal considerations; where they handle trademark registration, administration, and re-examination matters in violation of the law; where they accept money or properties from a party in a trademark matter; where they seek improper gains; and where the case is so serious as to constitute a crime, they shall be prosecuted, according to the law, for their criminal liabilities. Where the case does not constitute a crime, the worker involved shall be subject to administrative disciplinary measures.
Chapter 8 Supplementary Provisions
Article 63 Any application for a trademark registration and for the processing of other trademark matters shall be subject to the payment of the prescribed fee. The schedule of fees shall be prescribed separately.
Article 64 This Law shall enter in force on 1 March 1983. The Regulations for Trademark Administration promulgated by the State Council on 10 April 1963 shall be abrogated on the same date, and any other regulations pertaining to trademarks which conflict with this Law shall cease to be effective at the same time.
Trademarks registered before this Law enters into force shall continue to be valid.
