PRC Trademark Law (2nd Revision)

Promulgated: October 27 2001
Effective: December 1 2001

Main contents: Among the general provisions in Part One, Article 2 states that product trademarks, service trademarks, collective marks and certification marks are protected, while Article 5 contains an inserted paragraph that states: "Two or more natural persons, legal persons or other organizations can jointly apply to register the same trademark." Articles 11 and 12 prohibit the use of generic names and images as trademarks. Article 13 makes it illegal to register or use a well-known foreign trademark that is not registered in China. Article 18 (formerly Article 10) now stipulates that a trademark agency engaged by foreign individuals or enterprises must be qualified and accredited.
Part Two deals with the trademark registration application. Newly inserted are Articles 24 and 25. Article 24 grants priority to trademarks whose registration for the same goods was first applied for abroad less than six months ago (subject to existing bilateral agreements or international agreements in which both countries participate, or based on the principle of reciprocity). Article 25 states that the display of a trademark for the first time at a Chinese government organized or accredited international exposition will automatically initiate a six-month period of prior claim to the trademark.
In Part Three on trademark examination and approval, Article 32 (formerly Article 21) and Article 33 (formerly Article 22) have been amended to include the option of appeal to a people's court when disagreement exists over a ruling by the Trademark Review and Adjudication Board on a trademark dispute. Article 49 (formerly Article 35) likewise enables appeal to a people's court when the Trademark Review Board cancels a trademark or orders changes.
The revised Article 53 (formerly Article 39) now outlines a process of negotiation, referral to the administrative department for industry and commerce, and appeal to a people's court when exclusive trademark rights have been infringed upon. Article 53 also includes a provision granting the administrative department for industry and commerce the power to confiscate material or machinery used in the manufacture of the infringing goods. The same article removes, on the other hand, the power of the administrative department for industry and commerce to order compensation or damages. This power is now held by the people's court.
In Part Seven, Article 57 states that if a trademark registrant has proof that an infringing action is being or about to be carried out and will cause him irreparable damage, the registrant can apply to the people's court for a cease-and-desist order before instituting an action. Article 58 states that the people's court should respond to the application within 48 hours. The court can require the registrant to give security.