PRC Trademark Law (3rd Revision)

Article 2: The Trademark Office of the department for the administration of industry and commerce of the State Council shall be in charge of trademark registration and control for the whole country.

The department for the administration of industry and commerce of the State Council shall establish a Trademark Review and Adjudication Board, which shall be responsible for handling trademark dispute matters.

Article 3: Trademarks approved for registration by the Trademark Office, including trademarks for goods, trademarks for services, collective marks and certification marks, are registered trademarks. Trademark registrants shall have the exclusive right to use a trademark and shall receive legal protection.

For the purposes of this Law, the term “collective mark” means a sign that has been registered in the name of a group, association or other organisation and that is intended to be used by the members of the organisation in their commercial activities, in order to indicate the user's status as a member of the organisation.

For the purposes of this Law, the term “certification mark” means a sign that is controlled by an organisation that has a supervisory capacity over certain goods or services and that is used by work units or individuals, other than the said organisation, on their goods or services in order to certify the origin, raw materials, manufacturing method, quality or other special qualities of such goods or services.

Special matters concerning the registration and control of collective marks and certification marks shall be provided for in regulations to be formulated by the department for the administration of industry and commerce of the State Council.

Article 4: Natural persons, and legal persons and other organisations that need to secure, in the course of production or other business operations, the exclusive right to use a trademark for their goods or services shall apply to the Trademark Office for registration of a trademark.

The provisions of this Law relating to trademarks for goods shall be applicable to trademarks for services.

Article 5: Two or more natural persons or two or more legal persons or other organisations may jointly apply to the Trademark Office to register one trademark and jointly enjoy and exercise the exclusive right to use the said trademark.

Article 6: In the case of goods that laws or regulations specify must use registered trademarks, trademark registration must be applied for. If trademark registration for such goods has not been approved, they may not be sold on the market.

Article 7: The principle of good faith shall be complied with in applying for the registration of, and using, trademarks.

Trademark users shall be responsible for the quality of the goods on which their trademark is used. The departments for the administration of industry and commerce at all levels shall, through trademark control, stop acts that deceive consumers.

Article 8: Any signs, including words, depictions, letters, numbers, three-dimensional signs, colour combinations and sounds as well as combinations of the aforementioned elements, which are capable of distinguishing the goods of a natural person or a legal person or other organisation from those of another may be the subject of applications for registration as a trademark.

Article 9: Trademarks for which registration is applied shall have distinctive characteristics and be easy to distinguish, and may not conflict with prior lawful rights obtained by any third party.

The registrant of a trademark has the right to mark the same with the phrase “注册商标”¹ or the registration symbol.

Article 10: The following signs may not be used as trademarks:

(1) those that are the same as or similar to the state name, national flag, national emblem, national anthem, military flag, military emblem, military anthem, medals, etc. of the People's Republic of China and those that are the same as the names or logos of central state authorities or the specific names of places where central state authorities are located or the names or images of landmarks;

(2) those that are the same as or similar to the state name, national flag, national emblem, military flag, etc. of a foreign country, unless approved by the government of the said country;

(3) those that are the same as or similar to the name, flag, emblem, etc. of an inter-governmental international organisation, unless with the consent of the said organisation or unless doing so would not be likely to mislead the public;

(4) those that are the same as or similar to official signs or hallmarks indicating control or warranty, except where authorised;

(5) those that are the same as or similar to the name or mark of the “Red Cross” or the “Red Crescent”;

(6) those that are of a racial discriminatory nature;

(7) those that are of a deceptive nature and would be likely to cause the public to mistake the quality or other feature of the goods or the origin thereof;

(8) those that harm socialist morality or practices or that have other adverse effects.

Names of administrative districts at or above the county level and commonly-known foreign place names may not be used as trademarks, except where such names have other meanings or are an integral component of a collective mark or certification mark. Trademarks using place names that have already be en registered shall remain valid.

Article 11: The following signs may not be registered as trademarks:

(1) those that consist exclusively of the generic name, depiction or model number of the goods concerned;

(2) those that consist exclusively of a direct designation of the quality, main raw materials, functions, intended purpose, weight, quantity or other characteristics of the goods;

(3) other signs that are lacking in distinctiveness.

The signs mentioned in the preceding paragraph may be registered as trademarks after they have acquired distinctiveness and become easily distinguishable through use.

Article 12: A three-dimensional sign that is the subject of an application for a registered trademark may not be registered if it consists exclusively of the shape of the goods that results from the nature of the goods themselves, or the shape of the goods that is necessary to obtain a technical result or the shape that gives substantial value to the goods.

Article 13: If the holder of a trademark with which the relevant public is very familiar is of the opinion that his/her/its rights have been infringed upon, he/she/it may seek protection thereof as a well-known trademark in accordance herewith.

A trademark that constitutes a reproduction, an imitation, or a translation, liable to create confusion, of another's well-known trademark not registered in China and that is the subject of an application for registration for identical or similar goods shall be refused registration, and its use shall be prohibited.

A trademark that constitutes a reproduction, an imitation or a translation of another's well-known trademark registered in China and that is the subject of an application for registration for dissimilar goods or services shall be refused registration, and its use shall be prohibited, if the use of such trademark would confuse the public and possibly prejudice the interests of the registrant of the well-known trademark.

Article 14: Recognition of a well-known trademark shall be carried out at the request of a concerned party and as a fact that needs to be established in handling a case involving a trademark. When recognising a well-known trademark, the following factors shall be considered:

(1) the degree of notoriety of the trademark among the relevant public;

(2) the length of continuous use of the trademark;

(3) the continuous length, degree and geographical scope of any publicity work for the trademark;

(4) the record of protection of the trademark as a well-known trademark; and

(5) other factors associated with the trademark's being well known.

The Trademark Office may render a determination as to whether a trademark is well-known as required in the course of a trademark registration examination or in the investigation and handling by an administration for industry and commerce of a trademark violation case if a party asserts rights pursuant to Article 13 hereof.

The Trademark Review and Adjudication Board may render a determination as to whether a trademark is well-known as required in the course of handling a trademark dispute if a party asserts rights pursuant to Article 13 hereof.

The people's court designated by the Supreme People's Court may render a determination as to whether a trademark is well-known as required in the adjudication of a civil or administrative trademark case if a party asserts rights pursuant to Article 13 hereof.

Producers and business operators may not use the words “well-known trademark” on goods, the packaging or containers for such goods, or in advertising, publicity, exhibitions or other commercial activities.

Article 15: If an agent or representative registers a trademark of his/her/its principal in his/her/its own name without having been authorised to do so, and his/her/its principal opposes such registration, registration of the trademark shall be refused and its use prohibited.

In the case of a trademark an application for registration of which is made for the same or similar goods that is the same as or similar to a prior unregistered trademark of another party, registration shall not be granted if the applicant has a contractual relationship, business dealings or other relationship with such another party not specified in the preceding paragraph and was well aware of the existence of the trademark of such another party and such another party files an opposition against the registration.

Article 16: If a trademark contains a geographical indication of the goods and the goods do not originate from the region indicated by the indication, thereby confusing the public, registration of the trademark shall be refused and its use prohibited. However, those for which registration has been obtained in good faith shall remain valid.

For the purposes of the preceding paragraph, the term “geographical indication” means an indication that identifies a good as originating from a particular region, where a given quality, reputation or other characteristic of the good is essentially determined by the natural or cultural factors of the said region.

Article 17: Foreigners or foreign enterprises applying to register a trademark in China shall handle matters in accordance with the agreements entered into between their country and the People's Republic of China or international treaties to which both countries have acceded, or handle matters in accordance with the principle of reciprocity.

Article 18: When a party applies to register a trademark or handles other trademark matters, he/she/it may do so himself/herself/itself or he/she/it may engage a lawfully established trademark agency to do so on his/her/its behalf.

When applying for the registration of a trademark or the handling of other trademark matters in China, a foreigner or foreign enterprise shall engage a lawfully established trademark agency to do so on his/her/its behalf.

Article 19: A trademark agency shall handle applications for the registration of trademarks and other trademark matters in line with the principle of good faith in accordance with laws and administrative regulations and as engaged by its principals. A trademark agency shall bear an obligation of maintaining the confidentiality of its principals' trade secrets to which it was privy in the course of acting as their agent.

A trademark agency shall expressly inform its principal where a circumstance specified herein that prohibits registration may apply to a trademark that the principal is applying to register.

If a circumstance set forth in Article 15 or 32 hereof applies to a trademark that a principal is applying to register and the trademark agency is aware or ought to be aware thereof, it may not accept the appointment.

Other than applying to register a trademark for its agency services, a trademark agency may not apply to register other trademarks.

Article 20: A trademark agency industry organisation shall, in accordance with its charter, strictly implement the conditions for accepting members and sanction those members that breach the industry code of self-regulation. A trademark agency industry organisation shall announce to the public the members it has accepted and information on its sanctioning of members in a timely manner.

Article 21: The international registration of trademarks shall comply with the systems established by the relevant international treaties concluded or acceded to by the People's Republic of China. The specific measures therefor shall be specified by the State Council.

Part Two: Application for trademark registration

Article 22: To submit an application for registration, an applicant for trademark registration shall fill in the class of goods and name of goods on which the trademark will be used pursuant to the prescribed table for classification of goods.

An applicant for trademark registration may apply for the registration of a trademark for goods in multiple classes with one application.

An application for the registration of a trademark and other relevant documents may be submitted in writing or in data message format.

Article 23: In the case that the exclusive right to use a trademark needs to be secured for goods other than the ones for which a registered trademark is designated, a separate application for registration shall be submitted.

Article 24: In cases where the sign of a registered trademark needs to be changed, a new application for registration shall be filed.

Article 25: If, within six months of the date on which an applicant for trademark registration first applies for registration of his/her/its trademark in a foreign country, the applicant applies for registration of the same trademark for the same goods in China, he/she/it shall be entitled to a right of priority pursuant to an agreement entered into between, or an international treaty jointly acceded to by, the applicant's home country and China, or pursuant to the principle of reciprocal recognition of the right of priority.

If the applicant claims a right of priority pursuant to the preceding paragraph, he/she/it shall submit a written declaration when submitting his/her/its application for trademark registration and, within three months, submit copies of the application documents he/she/it submitted when he/she/it first applied for registration of the trademark. If the applicant fails to submit a written declaration or fails to submit, within the time limit, copies of the application documents for registration of the trademark, he/she/it shall be deemed not to claim a right of priority.

Article 26: If it is at an international exhibition held or recognised by the Chinese government that a trademark is first used for the goods exhibited thereat, the applicant for registration of such trademark shall be entitled to priority within six months of the date of introduction of the goods into the exhibition.

If the applicant claims a right of priority pursuant to the preceding paragraph, he/she/it shall submit a written declaration when submitting his/her/its application for trademark registration and, within three months, submit such supporting documents as the name of the exhibition at which his/her/its goods were exhibited, evidence of his/her/its use of the trademark for the goods exhibited, the date of exhibition, etc. If the applicant fails to submit a written declaration or fails to submit, within the time limit, the supporting documents, he/she/it shall be deemed not to claim a right of priority.

Article 27: The particulars reported and the materials submitted when applying for the registration of a trademark shall be truthful, accurate and complete.

Part Three: Examination and approval of trademark registration

Article 28: The Trademark Office shall complete its examination of an application to register a trademark within nine months of the date of receipt of the application documents for the registration of the trademark, and if it finds that they comply with relevant provisions hereof, it shall preliminarily approve and gazette the same.

Article 29: If, in the course of an examination, the Trademark Office is of the opinion that details in an application for the registration of a trademark require an explanation or correction, it may require the applicant to provide such explanation or make such corrections. The failure by the applicant to provide such explanation or make such corrections shall not affect the rendering of an examination decision by the Trademark Office.

Article 30: In the case that any trademark for which registration is applied does not conform to the relevant provisions of this Law or is the same as or similar to a trademark that has been registered by another or preliminarily approved for use on the same or similar goods, such application shall be rejected by the Trademark Office, and the trademark shall not be gazetted.

Article 31: If two or more applicants for a registered trademark apply for registration of the same or similar trademarks for use on the same or similar goods, the trademark for which application is first filed shall be preliminarily approved and gazetted. If applications are filed on the same day, the trademark that has been used first shall be preliminary approved and gazetted, and the application(s) of the other applicant(s) shall be rejected and shall not be gazetted.

Article 32: An application for the registration of a trademark may not prejudice the existing right of priority of any third party nor may improper means be used to pre-emptively register a third party's trademark that is already in use and that has a certain degree of influence.

Article 33: If a prior rights holder or materially interested party is of the opinion that a trademark that has preliminarily been approved and gazetted violates the second or third paragraph of Article 13, Article 15, the first paragraph of Article 16, Article 30, Article 31 or Article 32 hereof, or any person is of the opinion that it violates Article 10, Article 11 or Article 12 hereof, he may file an opposition with the Trademark Office within three months of the date of gazetting. Registration of a trademark shall be approved, a trademark registration certificate issued and gazetting thereof carried out if no opposition is filed by the expiration of the gazette period.

Article 34: The Trademark Office shall notify in writing applicants for trademark registration whose trademark applications are rejected and whose trademarks are not gazetted. If the applicant for trademark registration is dissatisfied, he/she/it may, within 15 days of the date on which he/she/it receives notification, apply for review to the Trademark Review and Adjudication Board. The Trademark Review and Adjudication Board shall render its decision and notify the applicant in writing within nine months of the date of receipt of the application. In special circumstances where an extension is required, an extension of three months may be granted with the approval of the department for the administration for industry and commerce of the State Council. If a party is dissatisfied with the decision of the Trademark Review and Adjudication Board, he/she/it may institute a legal action in a people's court within 30 days of the date on which he/she/it receives notification.

Article 35: If an opposition is filed against a trademark that has been preliminarily approved and gazetted, the Trademark Office shall listen to the facts and grounds stated by the opponent and the respondent and, following investigation and verification, shall render its decision on whether or not to grant registration and notify the opponent and respondent in writing within 12 months of the date of expiration of the gazette period. In special circumstances where an extension is required, an extension of six months may be granted with the approval of the department for the administration for industry and commerce of the State Council.

If the Trademark Office renders a decision granting registration, it shall issue a trademark registration certificate and gazette the registration. If the opponent is dissatisfied, he/she/it may apply to the Trademark Review and Adjudication Board for invalidation of the registered trademark pursuant to Article 44 or 45 hereof.

If the respondent is dissatisfied with the decision of the Trademark Office to withhold registration, he/she/it may, within 15 days of the date on which he/she/it receives notification, apply for review to the Trademark Review and Adjudication Board. The Trademark Review and Adjudication Board shall render a review decision and notify the opponent and the respondent in writing within 12 months of the date of receipt of the application. In special circumstances where an extension is required, an extension of six months may be granted with the approval of the department for the administration for industry and commerce of the State Council. If the respondent is dissatisfied with the decision of the Trademark Review and Adjudication Board, he/she/it may institute a legal action in a people's court within 30 days of the date on which he/she/it receives notification. The people's court shall notify the opponent to participate in the action as a third party.

In the case where the determination of the prior right involved in a review conducted in accordance with the preceding paragraph must be based on the outcome of a case then being tried before a people's court or then being handled by an administrative department, the Trademark Review and Adjudication Board may suspend its examination. Once the reason for the suspension no longer holds, the examination procedure shall be resumed.

Article 36: If a party does not apply for review in relation to a decision to reject an application or a decision to withhold registration rendered by the Trademark Office, or does not institute a legal action in a people's court in relation to a review decision rendered by the Trademark Review and Adjudication Board by the expiration of the statutory time limit, such decision shall enter into effect.

For a trademark granted registration following an opposition thereto being found untenable, the term of the exclusive right of the applicant for trademark registration to use the trademark shall commence on the expiration date of the three-month period following the preliminary approval and gazetting. Registration of the trademark shall not have a retroactive effect on the use by another of a sign that is the same as or similar to the trademark on identical or similar goods from the date of expiration of the gazette period for the trademark until the rendering of the decision to grant registration. However, compensation shall be given for the loss incurred by the trademark registrant due to the bad faith of the user.

Article 37: Applications for trademark registrations and trademark reviews shall be examined in a timely manner.

Article 38: If the applicant for or registrant of a registered trademark discovers that the trademark application documents or registration documents contain an obvious error, he/she/it may apply for correction of such error. To the extent it has the authority to do so, the Trademark Office shall effect the correction in accordance with the law and notify the party concerned.

For the purposes of the preceding paragraph, the phrase “correction of such error” does not apply to the substantive content of the trademark application documents or registration documents.

Part Four: Extension, amendment, assignment and licensing of registered trademarks

Article 39: A registered trademark shall be valid for a period of 10 years, calculated from the date on which the registration is approved.

Article 40: In case a registered trademark needs to continue to be used upon expiration of its period of validity, the trademark registrant shall, in accordance with provisions, carry out the extension procedures within 12 months prior to the expiration of the period. If the procedures cannot be carried out during this period, a six month grace period may be granted. Each extension of registration shall be valid for 10 years, counting from the day immediately following the expiration of the previous period of validity of the trademark. If the extension procedures have not been carried out by the expiration of the period, the registered trademark shall be cancelled.

The Trademark Office shall gazette a trademark the registration of which has been extended.

Article 41: In cases where the name or address of the registrant or other registration item in respect of a registered trademark needs to be changed, an application for a change shall be filed.

Article 42: In case of assignment of a registered trademark, the assignor and assignee shall enter into an assignment agreement and jointly file an application with the Trademark Office. The assignee shall ensure the quality of the goods on which the registered trademark is used.

When a registered trademark is assigned, the trademark registrant shall together assign any similar trademarks registered for the same goods and any identical or similar trademarks registered for similar goods.

The Trademark Office shall withhold approval of assignments that are likely to cause confusion or have other negative effects, and notify the applicant thereof in writing explaining the reason.

After an assignment of a registered trademark has been approved, such assignment shall be gazetted. The assignee shall enjoy the exclusive right to use the trademark from the date of gazetting.

Article 43: A trademark registrant may license his/her/its registered trademark to another party by entering into a trademark licensing contract. The licensor shall monitor the quality of the goods on which the licensee uses his/her/its registered trademark. The licensee shall ensure the quality of the goods on which the registered trademark is used.

Any party that uses another's registered trademark pursuant to a licence must indicate the name of the licensee and the place of origin of the goods on the goods for which such registered trademark is used.

When a registered trademark is licensed to another, the licensor shall report the trademark licence to the Trademark Office for the record, which the Trademark Office shall gazette. A trademark licence that has not been placed on the record may not be used as a defence against a bona fide third party.

Part Five: Invalidation of registered trademarks

Article 44: Registered trademarks that violate Article 10, 11 or 12 hereof or for which registration was obtained by deceptive or other improper means shall be invalidated by the Trademark Office. Other entities or individuals may request that the Trademark Review and Adjudication Board declare such trademarks invalid.

The Trademark Office shall notify the parties in writing of a decision rendered by it to declare a registered trademark invalid. If a party is dissatisfied with the decision rendered by the Trademark Office, he/she/it may, within 15 days of the date on which he/she/it receives notification, apply for review to the Trademark Review and Adjudication Board. The Trademark Review and Adjudication Board shall render its decision and notify the parties in writing within nine months of the date of receipt of the application. In special circumstances where an extension is required, an extension of three months may be granted with the approval of the department for the administration for industry and commerce of the State Council. If a party is dissatisfied with the decision of the Trademark Review and Adjudication Board, he/she/it may institute a legal action in a people's court within 30 days of the date on which he receives notification.

If another entity or individual requests that the Trademark Review and Adjudication Board declare a registered trademark invalid, the Trademark Review and Adjudication Board shall notify the relevant parties in writing after receipt of the application and set a deadline for them to respond. The Trademark Review and Adjudication Board shall render a ruling upholding the registered trademark or declaring it invalid and notify the parties in writing within nine months of the date of receipt of the application. In special circumstances where an extension is required, an extension of three months may be granted with the approval of the department for the administration for industry and commerce of the State Council. If a party is dissatisfied with the ruling of the Trademark Review and Adjudication Board, he/she/it may institute a legal action in a people's court within 30 days of the date on which he/she/it receives notification. The people's court shall notify the other party in the trademark ruling procedure to participate in the action as a third party.

Article 45: If a registered trademark violates the second or third paragraph of Article 13, Article 15, the first paragraph of Article 16, Article 30, Article 31 or Article 32 hereof, the prior rights holder or a materially interested party may, within five years of the date of registration of the trademark, request that the Trademark Review and Adjudication Board declare the registered trademark invalid. However, the owner of a well-known trademark shall not be subject to such five year time limit if the trademark was registered in bad faith.

Once the Trademark Review and Adjudication Board has received an application to declare a registered trademark invalid, it shall notify the relevant parties and set a deadline for them to respond. The Trademark Review and Adjudication Board shall render a ruling upholding the registered trademark or declaring it invalid and notify the parties in writing within 12 months of the date of receipt of the application. In special circumstances where an extension is required, an extension of six months may be granted with the approval of the department for the administration for industry and commerce of the State Council. If a party is dissatisfied with the ruling of the Trademark Review and Adjudication Board, he/she/it may institute a legal action in a people's court within 30 days of the date on which he receives notification. The people's court shall notify the other party in the trademark ruling procedure to participate in the action as a third party.

Where the determination of the prior right involved in an examination conducted in relation to a request to declare a registered trademark invalid in accordance with the preceding paragraph must be based on the outcome of a case then being tried before a people's court or then being handled by an administrative department, the Trademark Review and Adjudication Board may suspend its examination. Once the reason for the suspension no longer holds, the examination procedure shall be resumed.

Article 46: If a party does not apply for review in relation to a decision to declare a registered trademark invalid rendered by the Trademark Office, or does not institute a legal action in a people's court in relation to a review decision or a ruling to uphold a registered trademark or declare it invalid rendered by the Trademark Review and Adjudication Board by the expiration of the statutory time limit, the decision of the Trademark Office or the review decision or ruling of the Trademark Review and Adjudication Board shall enter into effect.

Article 47: The Trademark Office shall gazette a registered trademark declared invalid in accordance with Article 44 or 45 hereof, and the exclusive right to use such registered trademark shall be deemed not to have existed ab initio.

A decision or ruling invalidating a registered trademark shall not have a retroactive effect on a judgment, ruling or written mediation statement rendered and enforced by a people's court in a trademark infringement case, a handling decision rendered and enforced by the department for the administration for industry and commerce in a trademark infringement case or a trademark assignment or licensing contract performed before the declaration of invalidity. However, compensation shall be given for the loss incurred by the other party due to the bad faith of the trademark registrant.

If not refunding the damages for trademark infringement, the trademark assignment fee or trademark royalties pursuant to the preceding paragraph would clearly breach the principle of fairness, all or part thereof shall be refunded.

Part Six: Control of trademark use

Article 48: For the purposes of this Law, the term “use of a trademark” means an act whereby a trademark is used on goods, the packaging or containers for goods and documents for the transaction of such goods, or in advertising, publicity, exhibitions and other commercial activities, in order to identify the source of goods.

Article 49: If a trademark registrant changes his/her/its registered trademark, or his/her/its name, address or other registered particular in the course of his/her/its use of the registered trademark, the local department for the administration for industry and commerce shall order him/her/it to rectify the matter within a specified period of time. If he/she/it does not do so, the Trademark Office shall cancel his/her/its registered trademark.

If a registered trademark becomes the generic name of the good for which it is designated or is not used for three years in succession without legitimate reason, any entity or individual may apply to the Trademark Office for cancellation of such registered trademark. The Trademark Office shall render its decision within nine months of the date of receipt of the application. In special circumstances where an extension is required, an extension of three months may be granted with the approval of the department for the administration for industry and commerce of the State Council.

Article 50: In cases where a registered trademark is cancelled, declared invalid or is not extended upon expiration of the period, the Trademark Office shall not approve applications for registration of trademarks that are the same as or similar to such trademark within one year of the date on which the trademark is cancelled, declared invalid or deregistered.

Article 51: In case of a violation of Article 6 hereof, the local department for the administration for industry and commerce shall order application for registration within a specified period. If the illegal turnover was at least Rmb50,000, it may impose a fine of not more than 20% of the illegal turnover, or if there was no illegal turnover or the illegal turnover was less than Rmb50,000, it may impose a fine of not more than Rmb10,000.

Article 52: In case of the passing off of an unregistered trademark as a registered trademark or use of an unregistered trademark that violates Article 10 hereof, the local department for the administration for industry and commerce shall put an end to such act, order rectification within a specified period and may additionally circulate a notice on the matter and if the illegal turnover was at least Rmb50,000, it may impose a fine of not more than 20% of the illegal turnover, or if there was no illegal turnover or the illegal turnover was less than Rmb50,000, it may impose a fine of not more than Rmb10,000.

Article 53: In case of a violation of the fifth paragraph of Article 14 hereof, the local department for the administration for industry and commerce shall order rectification and impose a fine of Rmb100,000.

Article 54: If a party is dissatisfied with a decision of the Trademark Office to cancel or not cancel a registered trademark, he/she/it may, within 15 days of the date on which he/she/it receives notification, apply for review to the Trademark Review and Adjudication Board. The Trademark Review and Adjudication Board shall render its decision and notify the applicant in writing within nine months of the date of receipt of the application. In special circumstances where an extension is required, an extension of three months may be granted with the approval of the department for the administration for industry and commerce of the State Council. If a party is dissatisfied with the decision of the Trademark Review and Adjudication Board, he/she/it may institute a legal action in a people's court within 30 days of the date on which he/she/it receives notification.

Article 55: If a party does not apply for review in relation to a decision to cancel a registered trademark rendered by the Trademark Office, or does not institute a legal action in a people's court in relation to a review decision rendered by the Trademark Review and Adjudication Board by the expiration of the statutory time limit, the decision to cancel the registered trademark or the review decision shall enter into effect.

The Trademark Office shall gazette a registered trademark that has been cancelled and the exclusive right to use such registered trademark shall terminate on the gazette date.

Part Seven: Protection of the exclusive right to use a registered trademark

Article 56: An exclusive right to use a registered trademark shall be limited to the registered trademark that has been approved and the goods on which the trademark has been approved to be used.

Article 57: The following shall be infringement of an exclusive right to use a registered trademark:

(1) use, without the permission of the trademark registrant, of a trademark that is the same as his/her/its registered trademark on the same goods;

(2) use, without the permission of the trademark registrant, of a trademark that is similar to his/her/its registered trademark on the same goods or of a trademark that is the same as or similar to his/her/its registered trademark on similar goods, where confusion is likely to be caused;

(3) sale of goods that infringe the exclusive right to use a registered trademark;

(4) forgery or unauthorised manufacture of representations of another's registered trademark, or sale of representations of a registered trademark that were forged or manufactured without authorisation;

(5) substitution of the trademark of a trademark registrant without his/her/its consent and putting back on the market goods bearing such substituted trademark;

(6) deliberate provision of facilities for infringing another's exclusive right to use a trademark or assisting another in committing an act infringing the exclusive right to use a trademark; or

(7) causing other harm to another's exclusive right to use a registered trademark.

Article 58: The use of another's registered trademark or unregistered well-known trademark as the trade name in an enterprise name shall be handled in accordance with the PRC Anti-unfair Competition Law, where the same misleads the public and constitutes unfair competition.

Article 59: In the case where a registered trademark contains the generic name, depiction or model number of the goods concerned, directly designates the quality, main raw materials, functions, intended purpose, weight, quantity or other characteristic of the goods or contains a place name, the holder of the exclusive right to use the registered trademark shall not have the right to prohibit others from making legitimate use thereof.

In the case where a three-dimensional registered trademark contains the form arising from the nature of the good itself, the form of the good necessary for it to achieve its technical effect or the form that gives the good its substantive value, the holder of the exclusive right to use the registered trademark shall not have the right to prohibit others from making legitimate use thereof.

If another used before the trademark registrant a trademark that has a certain influence and that is the same as or similar to the registered trademark for the same or similar goods before the trademark registrant applied for registration of the trademark, the holder of the exclusive right to use the registered trademark shall not have the right to prohibit the user from continuing to use the trademark within the original scope of use, but may demand that the user add an appropriate distinguishing mark.

Article 60: If the commission of any of the infringements of a party's exclusive right to use a registered trademark enumerated in Article 57 hereof leads to a dispute, the parties shall resolve such dispute through consultations. If a party is not willing to hold consultations or if consultations are unsuccessful, the trademark registrant or a materially interested party may institute a legal action in a people's court. Alternatively, such party may request the department for the administration for industry and commerce to handle the matter.

If the matter is handled by the department for the administration for industry and commerce and such department determines that an infringement was indeed committed, it shall order an immediate cessation to the infringing conduct and the confiscation and destruction of the infringing goods and the tools mainly used to manufacture the infringing goods and forge the representations of the registered trademark. If the illegal turnover was at least Rmb50,000, it may impose a fine of not more than five times the illegal turnover. If there was no illegal turnover or the illegal turnover was less than Rmb50,000, it may impose a fine of not more than Rmb250,000. In the case where trademark infringement is committed at least two times within five years or another serious circumstance applies, heavier penalties shall be imposed. If a party sells goods that he/she/it did not know to be infringing upon the exclusive right to use a registered trademark, and can show that he/she/it obtained the same lawfully and identifies the supplier, the department for the administration for industry and commerce shall order him/her/it to cease sales.

In a dispute over the measure of damages for the infringement of the exclusive right to use a registered trademark, a party may request that the department for the administration for industry and commerce handling the matter conduct mediation or, alternatively, he/she/it may institute a legal action in a people's court in accordance with the PRC Civil Procedure Law (2nd Revision) . If the parties fail to reach agreement through the mediation by the department for the administration for industry and commerce or a party fails to perform after the entry into effect of the written mediation statement, a party may institute a legal action in a people's court in accordance with the PRC Civil Procedure Law (2nd Revision) .

Article 61: Departments for the administration for industry and commerce have the power to investigate and handle cases of infringement of the exclusive right to use a registered trademark in accordance with the law. If they suspect that a criminal offence has been committed, they shall transfer the case to the judicial authorities for handling in accordance with the law in a timely manner.

Article 62: Departments for the administration of industry and commerce at or above the county level may exercise the powers set forth below when, in light of evidence of the suspected violation of the law or a report of a violation that they have obtained, they are investigating and handling cases of suspected infringement of a third party's exclusive right to use a registered trademark:

(1) question relevant concerned parties and investigate circumstances connected with the infringement of the third party's exclusive right to use a registered trademark;

(2) consult and copy the concerned party's contracts, invoices, account books and other relevant materials connected with the infringing activities;

(3) conduct an on-site inspection of the site where the concerned party is suspected of being or having been engaged in activities infringing upon the third party's exclusive right to use a registered trademark; and

(4) inspect articles connected with the infringing activities; a department for the administration of industry and commerce may seal up or impound those articles for which it has evidence showing their infringement upon the third party's exclusive right to use a registered trademark.

When a department for the administration of industry and commerce is exercising the powers specified in the preceding paragraph in accordance with the law, the party concerned shall assist and cooperate with such exercise of powers and may not refuse to assist or cooperate therewith or interfere therewith.

If in the course of the investigation and handling of a trademark infringement case there is a dispute as to the ownership of the trademark or the rights holder has additionally instituted a trademark infringement action in a people's court, the department for the administration for industry and commerce may suspend its investigation and handling of the case. Once the reason for the suspension no longer holds, the case investigation and handling procedure shall be resumed or concluded.

Article 63: The measure of damages for the infringement of the exclusive right to use a trademark shall be determined based on the actual losses incurred by the rights holder as a result of the infringement. Where the actual losses are difficult to determine, it may be determined based on the benefits derived by the infringer as a result of the infringement. Where the losses incurred by the rights holder and the benefits derived by the infringer are difficult to determine, it shall be reasonably determined as a multiple of the royalties for the trademark. In the case of the malicious infringement of the exclusive right to use a trademark and the circumstances are serious, the measure of damages may be determined at not less than the amount and not more than three times the amount determined by the aforementioned method. The measure of damages shall include the reasonable expenditures incurred by the rights holder in stopping the infringement.

For the purposes of determining the measures of damages, where the rights holder has done his/her/its best to adduce evidence but the account books and documentation relating to the infringement are mainly in the possession of the infringer, the people's court may order the infringer to present such account books and documentation. If the infringer fails to do so or presents false account books and documentation, the people's court may determine the measure of damages by referencing the claims of the rights holder and the evidence presented by him/her/it.

If the actual losses incurred by the rights holder as a result of the infringement, the benefits derived by the infringer as a result of the infringement and the royalties for the registered trademark are difficult to determine, the people's court may render a judgment awarding damages of up to Rmb3 million depending on the circumstances of the infringement.

Article 64: If a holder of the exclusive right to use a registered trademark requests compensation and the alleged infringer argues against the same on the grounds that the holder of the exclusive right to use the registered trademark did not use the registered trademark, the people's court may require the holder of the exclusive right to use the registered trademark to provide evidence that he/she/it actually used the registered trademark during the previous three years. If the holder of the exclusive right to use the registered trademark cannot show that he/she/it actually used the registered trademark during the previous three years or that he/she/it incurred other losses as a result of the infringement, the alleged infringer shall not be liable for compensation.

If a party who sold goods that he/she/it did not know to be infringing upon the exclusive right to use a registered trademark is able to show that he/she/it obtained the goods lawfully and identifies the supplier, he/she/it shall not be liable for compensation.

Article 65: If a trademark registrant or a materially interested party has evidence showing that another party is carrying out or about to carry out an act of infringement upon his/her/its exclusive right to use a registered trademark and that failure to immediately halt such act would cause irreparable damage to his/her/its lawful rights and interests, he/she/it may, prior to instituting an action, apply in accordance with the law to a people's court for an injunction against the act and an order of preservation of property.

Article 66: A trademark registrant or a materially interested party may, for the purpose of halting an infringing act, apply in accordance with the law to a people's court for the preservation of evidence prior to the institution of a legal action, if such evidence might be destroyed, lost or difficult to obtain later.

Article 67: If a trademark identical to a registered trademark is used for similar goods without the consent of the registrant of the registered trademark and such act constitutes a criminal offence, the infringer shall, in addition to compensating for the damage suffered by the party whose rights have been infringed, be pursued for criminal liability in accordance with the law.

Where the forgery or unauthorised manufacture of representations of another's registered trademark, or the sale of trademark representations that were forged or manufactured without authorisation, constitutes a criminal offence, the infringer shall, in addition to compensating for the damage suffered by the party whose rights have been infringed, be pursued for criminal liability in accordance with the law..

Where the sale of goods that a party is fully aware to be goods bearing counterfeits of a registered trademark constitutes a criminal offence, the infringer shall, in addition to compensating for the damage suffered by the party whose rights have been infringed, be pursued for criminal liability in accordance with the law.

Article 68: If a trademark agency commits any of the acts set forth below, the department for the administration for industry and commerce shall order it to rectify the matter within a specified period of time, give it a warning, fine it not less than Rmb10,000 and not more than Rmb100,000; and give the manager directly in charge and other directly responsible persons a warning and fine them not less than Rmb5,000 and not more than Rmb50,000; if a criminal offence is constituted, criminal liability shall be pursued in accordance with the law:

(1) in the course of handling trademark matters, it forges, alters or uses forged or altered legal documents, stamps or signatures;

(2) it disparages other trademark agencies or uses other such means to solicit trademark agency business or uses other improper means to disrupt the order of the trademark agency market; or

(3) it violates the third or fourth paragraph of Article 19 hereof.

If a trademark agency commits any of the acts set forth in the preceding paragraph, the department for the administration for industry and commerce shall record the same in its integrity file. If the circumstances are serious, the Trademark Office and the Trademark Review and Adjudication Board may additionally decide to no longer accept trademark agency matters handled by it, and shall announce the same.

If a trademark agency breaches the principle of good faith, thereby infringing the lawful interests of its principals, it shall bear civil liability in accordance with the law and the trademark agency industry organisation shall impose sanctions in accordance with its charter.

Article 69: Those members of the working personnel of state authorities who are engaged in trademark registration, control and review must act impartially, uphold the law, have integrity, be self-disciplined, be dedicated to their duties and provide courteous service.

Working personnel of the Trademark Office and the Trademark Review and Adjudication Board and those members of the working personnel of state authorities who are engaged in trademark registration, control and review may not engage in trademark agency business or in activities associated with the production of, or dealing in, goods.

Article 70: Departments for the administration for industry and commerce shall establish sound internal supervision systems and supervise and examine the enforcement of the law and administrative regulations and the abidance by disciplinary rules of those working personnel of state authorities who are responsible for trademark registration, control and review.

Article 71: If a member of the working personnel of a state authority who is engaged in trademark registration, control or review is derelict in his/her duties, abuses his/her authority, practises favouritism by committing fraud, violates the law when handling trademark registration, control or review matters, accepts property from a concerned party, or seeks to derive improper gains, and such act constitutes a criminal offence, he/she shall be pursued for criminal liability in accordance with the law. If such act is insufficient to constitute a criminal offence, he/she shall be subjected to sanctions in accordance with the law.

Part Eight: Supplementary provisions

Article 72: Fees shall be paid for applications for trademark registration and handling of other trademark matters. The specific fee standards shall be determined separately.

Article 73: This Law shall be implemented as of March 1 1983. The Trademark Administration Regulations promulgated by the State Council on April 10 1963 shall be repealed at the same time. Other regulations concerning the control of trademarks that conflict with this Law shall become ineffective at the same time.

Trademarks registered prior to the implementation of this Law shall remain valid.

Translator's note:

1. The phrase means “registered trademark”.