Implementing Regulations for the PRC Trademark Law (Revised)

Article 2: The provisions of these Regulations relating to trademarks for goods shall be applicable to trademarks for services.

Article 3: A trademark holder requesting well-known trademark protection in accordance with Article 13 of the Trademark Law shall submit evidence showing that his/her/its trademark constitutes a well-known trademark. The Trademark Office (TMO) or Trademark Review and Adjudication Board (TRAB) shall determine whether his/her/its trademark is well-known pursuant to Article 14 of the Trademark Law and based on the requirements of the examination and handling of the case and the evidence submitted by the concerned party.

Article 4: A geographical indication as provided for in Article 16 of the Trademark Law may be the subject of an application for registration as a certification mark or a collective mark pursuant to the Trademark Law and these Regulations.

Where a geographical indication has been registered as a certification mark, a natural person or a legal person or other organisation whose goods satisfy the conditions for use of the geographical indication may request to use such certification mark, and the organisation that controls the mark shall permit such use. Where a geographical indication has been registered as a collective mark, a natural person or a legal person or other organisation whose goods satisfy the conditions for use of the geographical indication may request to join the group, association or other organisation that registered such geographical indication as a collective mark, and such group, association or other organisation shall accept him/her/it as a member pursuant to its charter; if he/she/it does not request to join the group, association or other organisation that registered such geographical indication as a collective mark, he/she/it may nonetheless make legitimate use of the geographical indication, and the said group, association or other organisation shall have no right to prohibit the same.

Article 5: An applicant entrusting a trademark agency to apply for trademark registration or to handle other trademark matters shall file a power of attorney. The power of attorney shall clearly state the matters entrusted and the limits of authority. The power of attorney of a foreigner or foreign enterprise shall also state the nationality of the principal.

The notarisation and authentication procedures for the power of attorney and the relevant supporting documents of a foreigner or foreign enterprise shall be carried out in accordance with the principle of reciprocity.

Where an application is made to register a trademark or assign a trademark and the applicant for trademark registration or the trademark assignor or assignee is a foreign national or foreign enterprise, he/she/it shall designate in the application a recipient in China to be responsible for receiving subsequent legal documents concerning trademark matters from the TMO and TRAB. Subsequent legal documents concerning trademark matters shall be served by the TMO and TRAB on the recipient in China.

For the purposes of Article 18 of the Trademark Law, the phrase “foreigners and foreign enterprises” means foreigners and foreign enterprises that have no permanent residence or place of business in China.

Article 6: The Chinese language shall be used for applications for trademark registration or the handling of other trademark matters.

Certificates, supporting documents and evidence submitted pursuant to the Trademark Law or these Regulations that are in a foreign language shall be accompanied by a Chinese translation, failing that they shall be deemed not to have been submitted.

Article 7: A member of the working personnel of the TMO or TRAB shall recuse himself/herself, and may be challenged by a party or a materially interested person, in any of the following circumstances:

(1) he/she is a party or a close family member of a party or of an agent;

(2) he/she is otherwise related to a party or to an agent in a way that may affect his/her impartiality; or

(3) he/she is materially interested in the application for trademark registration or the handling of the other trademark matters.

Article 8: Where a trademark registration application or other such relevant documents are filed in data message format as specified in Article 22 of the Trademark Law, they shall be submitted via the internet in accordance with the provisions of the TMO or TRAB.

Article 9: With the exception of the circumstance set forth in Article 18 hereof, for the date on which a party submits a document or materials to the TMO or TRAB, the date of delivery shall prevail if delivered by hand, or the postmark date shall prevail if sent by mail. If the postmark date is unclear or there is no postmark, the date on which the TMO or TRAB actually receives the document or materials shall prevail unless the party is able to submit evidence of the actual postmark date. Where delivery is effected by a courier enterprise other than a postal enterprise, the date of consignment to the courier enterprise shall prevail. If the consignment date is unclear, the date on which the TMO or TRAB actually receives the document or materials shall prevail unless the party is able to submit evidence of the actual consignment date. Where submission is effected in data message format, the date of entry of the same into the TMO's or TRAB's electronic system shall prevail.

If a party mails a document to the TMO or TRAB, it shall do so by registered mail.

When a party submits a document to the TMO or TRAB, it shall do so in writing and that recorded in the file kept by the TMO or TRAB shall govern; or if submitted in data message format, that recorded in the TMO's or TRAB's database shall govern, unless the party has evidence showing that there is an error in the TMO's or TRAB's file or database.

Article 10: Documents from the TMO or TRAB may be served on parties by mail, by hand, by data message or other means. The consent of the concerned party shall be required for service in data message format. If a party has engaged a trademark agency, service of a document on the trademark agency shall be deemed service on the party.

When the TMO or TRAB serves a document on a party, the postmark date shall be deemed the date of service if served by mail. If the postmark date is unclear or there is no postmark, the document shall be deemed served on the party 15 days from the date of mailing of the document, unless the party can substantiate the actual date of receipt. If served by hand, the date of delivery shall be the date of service. If served in data message format, the document shall be deemed served on the party 15 days from the date of transmission of the document unless the party can substantiate the date on which the document entered his/her/its electronic system. If a document cannot be served by any of the aforementioned methods, it may be served by announcement, in which case it shall be deemed served on the party 30 days from the date of issuance of the announcement.

Article 11: The following periods of time shall not be counted as part of the examination or review period:

(1) the period of announcement or service of a document from the TMO or TRAB;

(2) the period required for a party to provide additional evidence or correct documents as well as the period required for a new response when a party is replaced;

(3) the period required for the submission of evidence of use when applications are made on the same date as well as that required for consultations and the drawing of lots;

(4) the period required for determination of prior right; and

(5) in the course of examination or review, the period required for the result of a trial of a prior rights case at the request of the case applicant.

Article 12: With the exception of the circumstance set forth in the second paragraph of this Article, the date on which the various periods specified in the Trademark Law and these Regulations commence is not counted as part of the period. Where a period is counted in years or months, the corresponding day in the last month of the period shall be the date of expiration of the period, and if there is no corresponding day in the month in question, the last day of such month shall be the date of expiration of the period. If the date of expiration of a period falls on a holiday, the first working day after the holiday shall be the date of expiration of the period.

The term of a validity of a registered trademark as specified in Articles 39 and 40 of the Trademark Law shall commence to count from the statutory date, and the day immediately preceding the corresponding date of the last month of the term shall be the date of expiration of the term. If there is no corresponding date in the month in question, the last day of such month shall be the date of expiration of the term.

Part Two: Applications for trademark registration

Article 13: When applying for registration of a trademark, the application shall be completed in line with the published classification of goods and services. For each application for registration of a trademark, an Application for Trademark Registration and one specimen of the trademark shall be filed with the TMO. Where an application for registration of a trademark is made with a colour combination or a coloured specimen, a coloured specimen and one black and white sketch shall be filed. If no colour is designated, a black and white specimen shall be filed.

The trademark specimens shall be clear and easy to paste up. They shall be printed on glossy, durable paper or be replaced by photographs. Their length or width shall not exceed 10 centimetres and not be less than five centimetres.

If an application is made for registration of a three-dimensional sign as a trademark, the applicant shall declare the same in the application, explain the method of using the trademark and file specimens enabling determination of the three-dimensional shape, which specimens shall include a view of at least three sides.

If an application is made for registration of a colour combination as a trademark, the applicant shall declare the same in the application and explain the method of using the trademark.

If an application is made for registration of a sound mark as a trademark, the applicant shall declare the same in the application, file a sound sample that meets requirements, describe the sound trademark for which registration is applied and explain the method of using the trademark. When describing the sound trademark, the applicant shall notate the sound to be used as a trademark for which the application is made using five-line staff notation or numbered musical notation together with a written explanation. If the sound trademark cannot be notated using five-line staff notation or numbered musical notation, the applicant shall describe the sound in words. The description of the trademark shall be consistent with the sound sample.

When applying for registration of a collective or certification mark, the applicant shall declare the same in the application and file documents supporting his/her/its qualifications to apply as well as the rules for administration of the use of the mark.

If the trademark is in a foreign language or includes a foreign language, its meaning shall be explained.

Article 14: An applicant for trademark registration shall submit his/her/its identity document. The name of the applicant for trademark registration shall be consistent with that on the identity document submitted.

The provision in the preceding paragraph on the submission of an applicant's identity document shall apply to applications for amendment, assignment, renewal, opposition, cancellation and other such trademark matters filed with the TMO.

Article 15: Names of goods or services shall be provided in accordance with the class numbers and names contained in the Classification of Goods and Services. If the name of a good or service is not listed in the Classification of Goods and Services, an explanation of the good or service shall be attached.

If relevant documents, such as those for an application for registration of a trademark, are submitted in hard copy, they shall be typed or printed.

The second paragraph of this Article shall apply when handling other trademark matters.

Article 16: If joint application is made for registration of a trademark or the handling of other matters relating to a co-owned trademark, a representative shall be designated in the application. In the absence of such designation, the person ranked first in the application shall be the representative.

TMO and TRAB documents shall be served on the representative.

Article 17: If an applicant changes his/her/its name, address, agent or person for the receipt of documents or reduces the number of designated goods, he/she/it shall carry out amendment procedures with the TMO.

If an applicant assigns his/her/its application for trademark registration, he/she/it shall carry out assignment procedures with the TMO.

Article 18: The date of application for trademark registration shall be the date on which the application documents are received by the TMO.

If the application procedures for trademark registration have been completed, the application documents have been filled out in accordance with provisions and the fee has been paid, the TMO shall accept the same and notify the applicant in writing. If the application procedures have not been completed or the application documents have not been filled out in accordance with provisions or the fee has not been paid, the TMO will not accept the same and shall notify the applicant in writing, stating the reasons therefor. If the application procedures have been basically completed or the application documents basically conform to the provisions, but supplementation and/or correction is required, the TMO shall notify the applicant to carry out supplementation and/or correction and require him/her/it to supplement and/or correct the contents indicated and return the application to the TMO within 30 days from the date of receipt of the notice. If supplementation and/or correction is carried out and the application is returned to the TMO within the time limit, the application date shall be retained. If supplementation and/or correction is not carried out within the time limit or supplementation and/or correction is not carried out in accordance with requirements, the TMO will not accept the application and shall notify the applicant in writing.

The second paragraph of this Article concerning the criteria for acceptance of an application shall apply when handling other trademark matters.

Article 19: If two or more applicants separately apply on the same date for registration of the same or similar trademarks for use on the same or similar goods, each applicant shall, within 30 days of the date of receipt of a notice from the TMO, submit evidence that he/she/it was the first to use the trademark in question prior to the application for registration. If the trademarks have been first used on the same date or none has yet been used, the applicants may hold consultations among themselves and submit their written agreement to the TMO within 30 days after receipt of a notice from the TMO. If the applicants do not wish to consult or consultations are unsuccessful, the TMO shall notify the applicants to determine one applicant by drawing lots and shall reject the registration applications of the others. Applicants who have been notified by the TMO but fail to participate in the draw shall be deemed to have abandoned their applications. Applicants who fail to participate in the draw shall be notified in writing by the TMO.

Article 20: Where a right of priority is claimed pursuant to Article 25 of the Trademark Law, the copies, filed by the applicant, of the application documents he/she/it submitted when he/she/it first applied for registration of the trademark must be authenticated by the trademark authority that accepted such application and marked with the application date and number.

Part Three: Examination of applications for trademark registration

Article 21: Applications for trademark registration that have been accepted shall be examined by the TMO in accordance with relevant provisions of the Trademark Law and these Regulations. If an application for registration conforms to the provisions or conforms to the provisions to the extent that the trademark is used on some of the designated goods only, the TMO shall preliminarily approve and gazette the trademark. If an application for registration does not conform to the provisions or does not conform to the provisions vis-à-vis some of the goods for which the trademark is designated, the TMO shall reject the application or reject the application with respect to some of the designated goods, and notify the applicant in writing, stating the reasons therefor.

Article 22: Where the TMO rejects an application for trademark registration for a portion of the designated goods, the applicant may apply to have the portion of the application that passed preliminary approval split off as a separate application. The filing date for the original application shall be retained for such separate application.

If division is necessary, the applicant shall apply to the TMO for division within 15 days from the date of receipt from the TMO of the Notice of Rejection of a Portion of an Application for Trademark Registration.

After the TMO receives the application for division, it shall divide the original application into two applications, allocate a new application number to the preliminarily approved application that has been split off, and gazette the same.

Article 23: If, pursuant to Article 29 of the Trademark Law, the TMO deems it necessary to explain or revise the contents of an application for trademark registration, the applicant shall provide such explanation or make the revision(s) within 15 days from the date of receipt of the notice from the TMO.

Article 24: To raise an opposition against a trademark that has been preliminarily approved and gazetted by the TMO, the opponent shall submit the following trademark opposition materials to the TMO in duplicate and note on each document whether it is the original or a duplicate:

(1) the written application for trademark opposition;

(2) the opponent's identity document; and

(3) if the opposition is filed on the grounds of violation of the second or third paragraph of Article 13, Article 15, the first paragraph of Article 16, Article 30, Article 31 or Article 32 of the Trademark Law, proof that the opponent is the prior rights holder or a materially interested party.

An application for trademark opposition shall have clear claims and factual basis and be accompanied by the relevant evidence.

Article 25: If, after receipt of an application for trademark opposition, the TMO determines after review that the same is in compliance with the conditions for acceptance, it shall accept the same and issue the applicant a notice of acceptance.

Article 26: The TMO will not accept an application for trademark opposition and shall notify the applicant in writing, stating the reasons therefor, if:

(1) it was not filed by the statutory deadline;

(2) the applicant's qualifications as a subject or the grounds for the opposition do not conform with Article 33 of the Trademark Law;

(3) there are no clear grounds, facts or legal basis for the opposition; or

(4) the application is made based on the same grounds, facts or legal basis as a previous opposition application from the same opponent against the same trademark.

Article 27: The TMO shall send a copy of the trademark opposition materials to the respondent in a timely manner and instruct him/her/it to respond within 30 days from the date of receipt of the copy of the opposition materials. Failure on the part of the respondent to respond shall not affect the rendering of a decision by the TMO.

If a party needs to submit additional relevant evidence after filing his/her/its opposition or responding, he/she/it shall include a statement to that effect in his/her/its application for trademark opposition or response and submit the evidence within three months from the date on which he/she/it filed his/her/its opposition or submitted his/her/its response. If the supplementary evidence is not submitted within the time limit, such party shall be deemed to have waived supplementation of the relevant evidence. However, if evidence generated after the expiration of the time limit or evidence that the party could not submit before the expiration of the time limit for another legitimate reason is submitted after the expiration of the time limit, the TMO shall provide the evidence to the other party and may admit the same after cross-examination.

Article 28: For the purposes of the third paragraph of Article 35 and the first paragraph of Article 36 of the Trademark Law, the phrase “decision to refuse registration” includes decisions to refuse registration for a portion of the designated goods.

If registration of the opposed trademark was gazetted prior to the TMO rendering a decision to grant registration or refuse registration, the gazetting of the registration shall be cancelled. If, following review, the opposition is found untenable and registration is granted, the registration shall be gazetted anew after the decision to grant registration enters into effect.

Article 29: If an applicant for trademark registration or a trademark registrant wishes to apply to make a correction pursuant to Article 38 of the Trademark Law, he/she/it shall submit a written application for the correction to the TMO. If the conditions for correction are satisfied, the TMO shall correct the relevant contents after approving the same. If the conditions for correction are not satisfied, the TMO will not approve the application and shall notify the applicant in writing, stating the reasons therefor.

If the correction is for a trademark that has been gazetted upon preliminary approval or gazetted upon registration, the correction shall be gazetted.

Part Four: Amendment, assignment and renewal of registered trademarks

Article 30: To change the name, address or other registered particulars of a trademark registrant, an amendment application shall be filed with the TMO. To change the name of a trademark registrant, a document in support of the change issued by the relevant registry shall additionally be filed. If the TMO approves the application, it shall issue a corresponding certificate to the registrant and gazette the same. If the TMO does not approve the application, it shall notify the applicant in writing, stating the reasons therefor.

If the name or address of a trademark registrant is changed, the trademark registrant shall amend the registrations of all of his/her/its trademarks simultaneously. If he/she/it fails to do so, the TMO shall notify him/her/it that he/she/it should rectify the matter within a specified time limit. If he/she/it fails to rectify the matter within the time limit, the amendment application shall be deemed abandoned and the TMO shall notify the applicant in writing.

Article 31: To apply for assignment of a registered trademark, the assignor and the assignee shall file an application for assignment of a registered trademark with the TMO. The application procedures for assignment of the registered trademark shall be carried out by the assignor and assignee together. If the TMO approves the application, it shall issue a corresponding certificate to the assignee and gazette the assignment.

When assigning a registered trademark, if the trademark registrant does not simultaneously assign his/her/its same or similar trademarks registered for the same or similar goods, the TMO shall notify him/her/it that he/she/it should rectify the matter within a specified time limit. If he/she/it fails to rectify the matter within the time limit, the application for assignment of the registered trademark shall be deemed abandoned and the TMO shall notify the applicant in writing.

Article 32: If the exclusive right to use a registered trademark is transferred to another party for reasons other than assignment, such as inheritance, the party accepting such right shall carry out the procedures for the transfer of the exclusive right to use a registered trademark with the TMO on the strength of the relevant supporting documents or legal documents.

If the exclusive right to use a registered trademark is transferred to another party, the same or similar trademarks of the holder of such right registered for the same or similar goods shall be transferred simultaneously. If the holder of such right fails to do so, the TMO shall notify him/her/it that he/she/it should rectify the matter within a specified time limit. If he/she/it fails to rectify the matter within the time limit, the application for transfer of the registered trademark to another party shall be deemed abandoned and the TMO shall notify the applicant in writing.

After an application to transfer a trademark has been approved, it shall be gazetted. The party accepting the transfer of the exclusive right to use the registered trademark shall enjoy such right from the gazette date.

Article 33: If the registration of a registered trademark needs to be renewed, an application for renewal of trademark registration shall be filed with the TMO. If the TMO approves the application, it shall issue a corresponding certificate and gazette the renewal.

Part Five: International registration of trademarks

Article 34: For the purposes of Article 21 of the Trademark Law, the term “international registration of trademarks” means the Madrid international registration of trademarks handled pursuant to the Madrid Agreement Concerning the International Registration of Marks (the Madrid Agreement), the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (the Madrid Protocol) and the Common Regulations under the Madrid Agreement Concerning the International Registration of Marks and the Protocol Relating to that Agreement.

Applications for the Madrid international registration of trademarks shall include applications for international registration of trademarks with China as the country of origin, applications designating territorial extension to China and other relevant applications.

Article 35: If an application for international registration of a trademark is made with China as the country of origin, the applicant shall have a genuine and valid place of business in China, be domiciled in China or have Chinese nationality.

Article 36: If the trademark of an applicant who is compliant with Article 35 hereof has been registered with the TMO, he/she/it may apply for international registration of said trademark pursuant to the Madrid Agreement.

If the trademark of an applicant who is compliant with Article 35 hereof has been registered with the TMO or an application for registration thereof has been filed with and accepted by the TMO, he/she/it may apply for international registration thereof pursuant to the Madrid Protocol.

Article 37: For an application for international registration of a trademark with China as the country of origin, the applicant shall apply to the International Bureau of the World Intellectual Property Organisation (the International Bureau) through the TMO.

Where China is the country of origin, any subsequent designation, waiver or de-registration matters of international trademark registration relating to the Madrid Agreement shall be carried out with the International Bureau through the TMO. Assignment, deletion, amendment or renewal procedures of international trademark registration relating to the Madrid Agreement may be carried out with the International Bureau either through the TMO or directly.

Where China is the country of origin, any subsequent designation, assignment, deletion, waiver, de-registration, amendment or extension matters relating to international trademark registration relating to the Madrid Protocol may be carried out with the International Bureau either through the TMO or directly.

Article 38: Where an application for international registration of a trademark or other relevant matter is carried out with the International Bureau through the TMO, an application and relevant materials conforming with the requirements of the International Bureau and the TMO shall be submitted.

Article 39: The goods or services designated in an application for international registration of a trademark may not exceed the scope of the goods or services of the domestic application or registration on which the international application is based.

Article 40: If the paperwork for an application for the international registration of a trademark is not completely in order or the written application is not completed in accordance with provisions, the TMO will not accept it and the filing date will not be retained.

If the application paperwork is essentially in order or the application is essentially in compliance with provisions, but requires supplementation or correction, the applicant shall do so within 30 days from the date of receipt of the supplementation/correction notice, and if he/she/it fails to do so, the TMO will not accept it and shall notify him/her/it in writing.

Article 41: When applying for the international registration of a trademark to, or carrying out another relevant application with, the International Bureau through the TMO, fees shall be paid in accordance with provisions.

The applicant shall pay the fee to the TMO within 15 days from the date of receipt of the fee payment notice from the TMO. If he/she/it fails to do so before the expiration of the deadline, the TMO will not accept his/her/its application and shall notify him/her/it in writing.

Article 42: The TMO shall examine an application designating territorial extension to China pursuant to relevant provisions of the Trademark Law and these Regulations, render its decision and notify the International Bureau within the rejection period specified in the Madrid Agreement or Protocol (the Rejection Period). If the TMO does not issue a notice of rejection or partial rejection during the Rejection Period, the application designating territorial extension shall be deemed approved.

Article 43: If an applicant for designated territorial extension to China requests protection of a three-dimensional sign, colour combination or sound mark as a trademark or requests the protection of a collective mark or a certification mark, he/she/it shall submit the relevant materials specified in Article 13 hereof to the TMO through a lawfully established trademark agency within three months from the date on which the trademark in question is recorded in the international register of the International Bureau. If the relevant materials are not submitted by the aforementioned deadline, the TMO shall reject the application for territorial extension.

Article 44: Where the World Intellectual Property Organisation gazettes a matter relating to the international registration of a trademark, the TMO will not gazette the same separately.

Article 45: An opponent satisfying the conditions set forth in Article 33 of the Trademark Law may file an opposition application with the TMO in respect of an application for territorial extension to China within three months from the first day of the month immediately following the publication of the WIPO Gazette of International Marks.

The TMO will notify the International Bureau in the form of a rejection decision during the Rejection Period of matters relating to the opposition application.

The respondent may respond within 30 days from the date of receipt of the rejection notice forwarded by the International Bureau, and the response and relevant evidence shall be submitted to the TMO through a lawfully established trademark agency.

Article 46: The term of validity of an internationally registered trademark that has secured protection in China shall count from the international registration date or subsequent designation date. The registrant may apply for renewal to the International Bureau before the expiration of the term of validity, and if he/she/it fails to do so, he/she/it may be accorded a six months' grace period. Once the TMO receives a renewal notice from the International Bureau, it shall carry out an examination in accordance with the law. If the International Bureau gives notice that an internationally registered trademark was not renewed, it shall be de-registered.

Article 47: Where an application for territorial extension to China is to be assigned, the assignee shall have a genuine and valid place of business in a Madrid contracting country, or be domiciled in a contracting country or be a national of a contracting country.

If the assignor fails to simultaneously assign his/her/its identical or similar trademarks for identical or similar goods or services, the TMO shall notify the registrant to rectify the matter within three months from the date of issuance of the notice. If the registrant fails to rectify the matter by the expiration of the deadline, or the assignment would likely lead to confusion or have another adverse effect, the TMO shall render a decision invalidating the assignment in China and make a declaration to the International Bureau.

Article 48: If a deletion is carried out in respect of an application for territorial extension to China and the goods or services after the deletion fail to satisfy China's requirements in respect of the classification of goods or services or exceed the originally designated scope of goods or services, the TMO shall render a decision invalidating the deletion in China and make a declaration to the International Bureau.

Article 49: Where an application is made for the cancellation of an internationally registered trademark pursuant to the second paragraph of Article 49 of the Trademark Law, such application shall be filed with the TMO after a full three years has elapsed since the date of expiration of the Rejection Period for the application for the international registration of the trademark. If, at the expiration of the Rejection Period, a rejection re-examination or opposition related procedure is still pending, the application shall be filed with the TMO after a full three years has elapsed since the date of entry into effect of the decision to grant registration rendered by the TMO or TRAB.

Where an application is made for the invalidation of an internationally registered trademark pursuant to the first paragraph of Article 44 of the Trademark Law, such application shall be filed with TRAB after the expiration of the Rejection Period for the application for the international registration of the trademark. If, at the expiration of the Rejection Period, a rejection re-examination or opposition related procedure is still pending, the application shall be filed with TRAB after the entry into effect of the decision to grant registration rendered by the TMO or TRAB.

Where an application is made for the invalidation of an internationally registered trademark pursuant to the first paragraph of Article 45 of the Trademark Law, such application shall be filed with TRAB within five years from the date of expiration of the Rejection Period for the application for the international registration of the trademark. If, at the expiration of the Rejection Period, a rejection re-examination or opposition related procedure is still pending, the application shall be filed with TRAB within five years from the date of entry into effect of the decision to grant registration rendered by the TMO or TRAB. Where registration was done in bad faith, the well-known trademark owner shall not be subject to the five year time limit.

Article 50: The provisions of the following articles of the Trademark Law and these Regulations shall not apply when handling matters relating to the international registration of trademarks:

(1) the provisions on the time limits for examination and review of Article 28 and the first paragraph of Article 35 of the Trademark Law;

(2) Article 22 and the second paragraph of Article 30 hereof; and

(3) the provisions of Article 42 of the Trademark Law and Article 31 hereof on the joint application and carrying out of the procedures by the assignor and assignee for a trademark assignment.

Part Six: Trademark review and adjudication

Article 51: The term “trademark review and adjudication” means the review of relevant trademark dispute matters by TRAB pursuant to Articles 34, 35, 44, 45 and 54 of the Trademark Law. A party submitting an application for review and adjudication to TRAB shall have clear claims, facts, grounds and legal basis, and provide the pertinent evidence.

TRAB shall carry out review and adjudication on the basis of the facts and in accordance with the law.

Article 52: When TRAB hears a re-examination case of dissatisfaction with a decision of the TMO to reject an application for the registration of a trademark, it shall conduct its review by looking at the rejection decision of the TMO and the facts, grounds and claims in the applicant's application for re-examination as well as the state of the facts at the time of the review and adjudication.

If TRAB, in hearing a re-examination case of dissatisfaction with a decision of the TMO to reject an application for the registration of a trademark, discovers that the trademark the registration of which is applied for violates Article 10, 11, 12 or the first paragraph of Article 16 of the Trademark Law, and the TMO failed to render a rejection decision on the basis of the aforementioned provisions, it may render a re-examination decision rejecting the application on the basis of the aforementioned provisions. Before rendering its re-examination decision, TRAB shall listen to the opinions of the applicant.

Article 53: When TRAB hears a re-examination case of dissatisfaction with a decision of the TMO to deny registration, it shall conduct its review by looking at the decision of the TMO to deny registration, the facts, grounds and claims in the applicant's application for re-examination and the opinions put forward by the original opponent.

When TRAB hears a re-examination case of dissatisfaction with a decision of the TMO to deny registration, it shall notify the original opponent to participate and offer his/her/its opinions. If the opinions of the original opponent have a substantive impact on the outcome of the review of the case, they may serve as a basis for the review and adjudication; but if the original opponent fails to participate or offer his/her/its opinions, the same shall not affect the review of the case.

Article 54: When TRAB reviews a case in which a request for invalidation of a registered trademark is made pursuant to Article 44 or 45 of the Trademark Law, it shall conduct its review by looking at the facts, grounds and claims presented in the parties' application and response.

Article 55: When TRAB hears a re-examination case of dissatisfaction with a decision rendered by the TMO to invalidate a registered trademark pursuant to the first paragraph of Article 44 of the Trademark Law, it shall conduct its review by looking at the decision of the TMO and the facts, grounds and claims in the applicant's application for re-examination.

Article 56: When TRAB hears a re-examination case of dissatisfaction with a decision rendered by the TMO to cancel or uphold a registered trademark pursuant to Article 49 of the Trademark Law, it shall conduct its review by looking at the decision to cancel or uphold the registered trademark rendered by the TMO and the facts, grounds and claims on which the concerned party relied at the time of applying for the re-examination.

Article 57: To apply for trademark review and adjudication, the applicant shall file an application with TRAB, accompanied by a number of copies corresponding to the number of parties on the opposite side. When applying for re-examination on the basis of a written decision of the TMO, the application shall additionally be accompanied by copies of the written decision of the TMO.

After having received the application, TRAB shall accept the same if it is found to satisfy the conditions for acceptance. If the application is found not to satisfy the conditions for acceptance, TRAB will not accept it and shall notify the applicant in writing, stating the reasons therefor. If supplementation and/or correction is required, TRAB shall notify the applicant to carry out supplementation and/or correction within 30 days from the date of receipt of the notice. If the application still does not comply with the provisions after it has been supplemented and/or corrected, TRAB will not accept it and shall notify the applicant in writing, stating the reasons therefor. If supplementation and/or correction is not carried out within the time limit, the application shall be deemed withdrawn and TRAB shall notify the applicant in writing.

If TRAB discovers an application for trademark review and adjudication not to satisfy the conditions for acceptance after it has accepted the same, it shall reject the application and notify the applicant in writing, stating the reasons therefor.

Article 58: After TRAB has accepted an application for trademark review and adjudication, it shall deliver a copy of the application to the respondent in a timely manner and instruct him/her/it to offer a response within 30 days from the date of receipt of the copy. Failure to offer a response shall not affect the review and adjudication by TRAB.

Article 59: If a party needs to submit relevant supplementary evidence after he/she/it has applied for review and adjudication or offered a response, he/she/it shall declare the same in his/her/its application or response and submit the evidence within three months of the date on which he/she/it filed his/her/its application or response. If the supplementary evidence is not submitted within the time limit, the party shall be deemed to have abandoned his/her/its right to submit supplementary evidence. However, if evidence generated after the expiration of the time limit or evidence that the party could not submit before the expiration of the time limit for other legitimate reason is submitted after the expiration of the time limit, TRAB shall provide the evidence to the other party and may admit the same after cross-examination.

Article 60: Based on a party's request or actual need, TRAB may decide to conduct an oral hearing in respect of an application for review and adjudication.

If TRAB decides to conduct an oral hearing concerning an application for review and adjudication, it shall notify the parties in writing 15 days prior to the hearing, informing them of the date and place of the hearing and of the adjudicators. The parties shall reply within the time limit specified in the notice.

If the applicant neither replies nor attends the hearing, his/her/its application for review and adjudication shall be deemed withdrawn and he/she/it shall be notified in writing by TRAB. If the respondent neither replies nor attends the hearing, TRAB may conduct review and adjudication by default.

Article 61: An applicant may, before TRAB has rendered a decision or ruling, apply to TRAB in writing to withdraw his/her/its application, stating the reasons therefor. If TRAB deems that the application may be withdrawn, the review and adjudication procedure shall be terminated.

Article 62: An applicant who has withdrawn his/her/its application for trademark review and adjudication may not submit another review and adjudication application based on the same facts and grounds. If TRAB has already made a ruling or decision in respect of an application for trademark review and adjudication, no party may submit another review and adjudication application based on the same facts and grounds. However, where an application for invalidation of the registered trademark is made to TRAB after registration is approved through a procedure to re-examine a denial of registration, the foregoing shall not apply.

Part Seven: Administration of the use of trademarks

Article 63: When a registered trademark is used, it may be marked with the phrase “注册商标"¹ or a registration symbol on the goods, the packaging for the goods, the instruction leaflet or manual, or other attachments.

The registration symbols include and ^®. When a registration symbol is used, it shall be placed at the top or bottom right corner of the trademark.

Article 64: If a Trademark Registration Certificate has been lost or damaged, application must be made to the TMO for reissuance thereof. If the Trademark Registration Certificate has been lost, a declaration of loss shall be published in the Trademark Gazette. Damaged Trademark Registration Certificates shall be returned to the TMO when the application for reissuance is filed.

If a trademark registrant requires the TMO to reissue a certificate of amendment, assignment or renewal of a trademark or issue a trademark registration certificate, or an applicant for trademark registration requires the TMO to issue a proof of prior right, he/she/it shall submit the appropriate application to the TMO. If the same satisfies requirements, the TMO shall issue the appropriate certificate. If it fails to satisfy requirements, the TMO will not handle the matter and shall notify the applicant, giving him/her/it the reasons therefor.

If a Trademark Registration Certificate or other trademark supporting document is forged or altered, criminal liability shall be pursued in accordance with the law pursuant to the provisions of the Criminal Law on the crime of forging or altering certificates issued by state authorities or other criminal offence.

Article 65: If a registered trademark becomes the generic name for the good for which it is designated as specified in Article 49 of the Trademark Law, any entity or person may apply to the TMO for cancellation of the registered trademark in question, provided that he/she/it provides evidence when submitting the application. The TMO shall notify the trademark registrant after acceptance of the application, and allow him/her/it two months from the date of receipt of the notice to provide a response. Failure to provide a response before the deadline shall not affect the rendering of a decision by the TMO.

Article 66: If a registered trademark is not used for three years in succession without a legitimate reason as specified in Article 49 of the Trademark Law, any entity or person may apply, stating the relevant details when submitting the application, to the TMO for cancellation of the registered trademark. The TMO shall notify the trademark registrant after acceptance of the application, and allow him/her/it two months from the date of receipt of the notice to provide materials evidencing his/her/its use of the trademark prior to the submission of the application for cancellation, or to provide a legitimate reason for not using the same. If the registrant fails to provide evidence of use or provides invalid evidence, and fails to give a legitimate reason for not using the trademark, the TMO shall cancel his/her/its registered trademark.

For the purposes of the preceding paragraph, the term “materials evidencing use” includes materials evidencing the trademark registrant's use of the registered trademark and materials evidencing the trademark registrant's licensing of the registered trademark to another person.

Where an application for cancellation of a registered trademark is filed on the grounds of non-use for three years in succession without a legitimate reason, such application shall be filed a full three years after the date of gazetting of the registration of the registered trademark in question.

Article 67: Any of the following shall be deemed a legitimate reason for the purposes of Article 49 of the Trademark Law:

(1) force majeure;

(2) a government policy restriction;

(3) bankruptcy liquidation; or

(4) another legitimate reason not attributable to the trademark registrant.

Article 68: If the reasons for cancellation or invalidation of a registered trademark that has been cancelled or invalidated by the TMO or TRAB apply to a portion of the designated goods only, the trademark registration shall be cancelled or invalidated to the extent of that portion of the designated goods.

Article 69: When a licensor licenses his/her/its registered trademark to another party, he/she/it shall file the same with the TMO for the record and submit the record filing materials during the term of the trademark licensing contract. The record filing materials shall state the licensor and licensee of the registered trademark, the term of the licence, the scope of the goods or services for which use of the trademark is licensed and other such matters.

Article 70: If the exclusive right to use a registered trademark is to be pledged, the pledgor and pledgee shall execute a written pledge contract and jointly submit an application to the TMO for registration of the pledge. The same shall be gazetted by the TMO.

Article 71: If a party violates the second paragraph of Article 43 of the Trademark Law, 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 fails to rectify the matter within the time limit, he/she/it shall be ordered to cease sales, and if he/she/it refuses to cease sales, he/she/it shall be fined up to Rmb100,000.

Article 72: If a trademark holder wishes to request well-known trademark protection pursuant to Article 13 of the Trademark Law, he/she/it may submit such request to the administration for industry and commerce. If the trademark has been recognized as a well-known trademark by the TMO pursuant to Article 14 of the Trademark Law, the administration for industry and commerce shall order that use of the trademark in violation of Article 13 of the Trademark Law be halted and confiscate and destroy the trademark representations used in violation of the law. If the trademark representations cannot be separated from the goods, they shall be confiscated and destroyed together.

Article 73: To apply for the de-registration of his/her/its registered trademark or for the de-registration of his/her/its trademark for a portion of the designated goods only, a trademark registrant shall file an application for the de-registration of a trademark with, and return the original Trademark Registration Certificate to, the TMO.

If a trademark registrant applies for the de-registration of his/her/its registered trademark or for the de-registration of his/her/its registered trademark for a portion of the designated goods only, after the approval of the TMO of the de-registration, the exclusive right to use the registered trademark or the exclusive right to use the registered trademark for that portion of the designated goods shall be extinguished from the date of receipt by the TMO of the application for its de-registration.

Article 74: If a registered trademark is cancelled, or is de-registered pursuant to Article 73 hereof, the original Trademark Registration Certificate will become void, and the same shall be gazetted. If the registration of the trademark is cancelled as to a portion of the designated goods, or if the trademark registrant applies for the de-registration of his/her/its trademark for a portion of the designated goods, a new Trademark Registration Certificate shall be issued, and the same gazetted.

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

Article 75: The provision to another party of warehousing, transport, mailing, printing, concealment, a place of business or online merchandise trading platform, etc. to infringe another person's exclusive right to use his/her/its trademark constitutes the “provision of facilities” as specified in Item (6) of Article 57 of the Trademark Law.

Article 76: Use, as the name or trade dress of goods, of a sign that is identical or similar to another party's registered trademark for identical or similar goods, thereby misleading the public, constitutes infringement of the exclusive right to use a registered trademark as specified in Item (2) of Article 57 of the Trademark Law.

Article 77: Any party may lodge a complaint against an infringement of the exclusive right to use a trademark with, or report such infringement to, the administration for industry and commerce.

Article 78: When calculating the illegal turnover specified in Article 60 of the Trademark Law, the following factors may be considered:

(1) the sales price of the infringing goods;

(2) the sticker price on unsold infringing goods;

(3) the ascertained actual average sales price of the infringing goods;

(4) the median market price of the goods being infringed;

(5) the infringer's business revenue generated in connection with the infringement; and

(6) other factors that permit reasonable calculation of the value of the infringing goods.

Article 79: The following shall constitute a circumstance of being able to show that one obtained the goods in question lawfully as specified in Article 60 of the Trademark Law:

(1) having a supply list and a payment receipt lawfully signed/stamped by the supplier, and the same are found to be true after verification or the same are acknowledged by the supplier;

(2) having a purchase contract entered into by the parties and the same is found after verification to have been genuinely performed;

(3) having a lawful purchase invoice and the matters recorded thereon correspond with the goods in question; or

(4) another circumstance that shows that the goods in question were lawfully obtained applies.

Article 80: If a party sells goods that he/she/it did not know infringed the exclusive right to use a registered trademark, and can show that he/she/it obtained the same lawfully and identifies the supplier, the administration for industry and commerce shall order him/her/it to cease sales and notify the administration for industry and commerce of the place where the supplier of the infringing goods is located of the details of the case.

Article 81: If title to the registered trademark involved in a case is currently being reviewed by the TMO or TRAB or litigated before a People's Court and the outcome of the case could affect the determination of the nature of the case, the same shall be deemed an existence of a dispute over title to a trademark as specified in the third paragraph of Article 62 of the Trademark Law.

Article 82: The administration for industry and commerce may, in the course of investigating and handling a trademark infringement case, require the rights holder to identify whether the goods in question were products produced by him/her/it or produced under a licence granted by him/her/it.

Part Nine: Trademark agency

Article 83: For the purposes of the Trademark Law, the term “trademark agency” means, upon engagement by a client, the handling of trademark registration application, trademark review and adjudication or other trademark matters in the name of the client.

Article 84: The trademark agencies referred to in the Trademark Law include service firms registered with the administration for industry and commerce that engage in trademark agency business and law firms that engage in trademark agency business.

A trademark agency that acts as an agent in handling trademark matters falling within the purview of the TMO and TRAB shall carry out record filing with the TMO in accordance with the following provisions:

(1) deliver for inspection the document evidencing its registration with the administration for industry and commerce or the document evidencing approval of the judicial administrative department for establishment of the law firm, with a photocopy thereof to be retained;

(2) submit basic particulars such as the name, domicile, person in charge and contact information of the trademark agency; and

(3) submit a list of its trademark agency employees and their contact information.

The administration for industry and commerce shall open an integrity file for the trademark agency. If the trademark agency violates the Trademark Law or these Regulations, the TMO or TRAB shall publicly circulate a notice to that effect and record the same in the integrity file.

Article 85: For the purposes of the Trademark Law, the term “trademark agency employee” means a staff member of a trademark agency who engages in trademark agency business.

A trademark agency employee may not accept an engagement in his/her own name.

Article 86: Relevant application documents filed with the TMO or TRAB by a trademark agency shall bear its official stamp and be signed by the relevant trademark agency employee.

Article 87: If a trademark agency applies to register or acquire a trademark other than one for its agency services, the TMO will not accept the same.

Article 88: Any of the following acts shall constitute an act of using other improper means to disrupt the order of the trademark agency market as specified in Item (2) of the first paragraph of Article 68 of the Trademark Law:

(1) using means such as fraud, fraudulent publicity, causing misunderstanding or commercial bribery to solicit business;

(2) withholding facts, providing fraudulent evidence, or coercing or inducing another person to withhold facts or provide fraudulent evidence; or

(3) in a trademark case, accepting the engagement of parties that have a conflict of interest.

Article 89: If a trademark agency commits an act as set forth in Article 68 of the Trademark Law, the administration for industry and commerce at the county level or above of the place where the perpetrator is located or where the violation was committed shall investigate and handle the matter, and notify the TMO of the details thereof.

Article 90: If the TMO or TRAB is to suspend acceptance of trademark agency matters from a trademark agency pursuant to Article 68 of the Trademark Law, it may render a decision to suspend such acceptance for six months up to in perpetuity. Once the term of suspension expires, the TMO or TRAB shall resume accepting matters from the trademark agency.

The TMO or TRAB shall post a decision to suspend or resume the acceptance of trademark agency matters on its website.

Article 91: An administration for industry and commerce shall strengthen its monitoring and guidance of trademark agency industry organizations.

Part Ten: Supplementary provisions

Article 92: Trademarks for services that have been used continuously up to July 1 1993 and that are the same as or similar to trademarks for services registered by others for the same or similar services may continue to be used; however, those whose use has been suspended for three years or more after July 1 1993 may not continue to be used.

If a trademark that has been continuously in use until the date the TMO accepts for the first time a newly opened good or service item is identical or similar to a trademark registered by another person for goods or services identical or similar to the newly opened good or service item, use of the same may continue. However, if use thereof is interrupted for at least three years after the date of first acceptance, it may not continue to be used.

Article 93: The classification of goods and services for the purposes of the registration of trademarks shall be formulated and published by the TMO.

The formats of documents for applications for trademark registration or the handling of other trademark matters shall be designed and published by the TMO and TRAB.

The review and adjudication rules of TRAB shall be formulated and published by the industry and commerce administrative department of the State Council.

Article 94: The TMO shall establish a Trademark Register, in which it shall record registered trademarks and related registration matters.

Article 95: A Trademark Registration Certificate and related certificates are proof that the rights holder has the exclusive right to use the registered trademark. The registered particulars recorded on a Trademark Registration Certificate shall be consistent with those in the Trademark Register. In the event of a discrepancy, the Trademark Register shall prevail, unless there is evidence showing that the Trademark Register truly is in error.

Article 96: The TMO shall issue the Trademark Gazette, in which it shall publish trademark registrations and other related matters.

The Trademark Gazette shall be issued in hard copy or electronic format.

Except in the case of service by announcement, the public shall be deemed to know or ought to have become aware of the contents of the gazette from the date of issuance thereof.

Article 97: Applications for trademark registration or the handling of other trademark matters shall require the payment of fees. The fee items and rates payable shall be stipulated and published by the industry and commerce administrative department of the State Council in conjunction with the department in charge of pricing of the State Council.

Article 98: These Regulations shall be effective as of May 1 2014.

Translator's note:
1. “registered trademark”