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Implementing
Regulations under the Trademark Law of
the People's Republic of China |
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(Promulgated
by the State Council on 3 August 2002)
Chapter I. General
Provisions
Article 1.
These Implementing Regulations are formulated in
accordance with the Trademark Law of the People's
Republic of China (hereinafter referred to as the
Trademark Law).
Article 2. The
provisions made in these Implementing Regulations
concerning goods marks shall apply to service marks.
Article 3. The
use of trademarks referred to in the Trademark Law
and these Regulations include, among other things,
the use of trademarks on goods, packages or containers
thereof and commodity trading instruments, or use
of trademarks in advertisements, exhibitions and
other commercial activities.
Article 4. Goods
required to bear registered trademarks as prescribed
by the State mentioned in Article 6 of the Trademark
Law refer to goods in respect of which registered
trademarks must be used as prescribed by law and
administrative regulations.
Article 5. Under
the Trademark Law and these Regulations, when an
interested party believes his trademark constitutes
a well-known trademark when a dispute arises in
the course of trademark registration or trademark
review and adjudication, he may file a request with
the Trademark Office or the Trademark Review and
Adjudication Board to establish it as a well-known
trademark, to reject the trademark registration
application contrary to the provision of Article
13 of the Trademark Law, or to cancel the trademark
registration contrary to the provision of Article
13 of the Trademark Law. When filing an application,
an interested party shall submit proofs that his
trademark constitutes a well-known trademark.
At the request of the interested party, the Trademark
Office or the Trademark Review and Adjudication
Board shall, on the basis of ascertained facts,
establish whether his trademark constitutes a well-known
trademark pursuant to the provision of Article 14
of the Trademark Law.
Article 6. Applications
may be filed for registration of geographic indications
provided for in Article 16 of the Trademark Law
as certification marks or collective marks in accordance
with the provisions of the Trademark Law and these
Regulations.
Where a geographic indication is registered as a
certification mark, the natural person, legal person
or other organization whose goods has met the requirement
imposed on the geographic indications may request
for using the certification mark, and the organization
having control on the certification mark shall give
its permission. Where a geographic indication is
registered as a collective mark, the natural person,
legal person or other organization whose goods has
met the requirement imposed on the geographic indications
may request for membership of the body, association
or other organization having the geographic indication
as its collective mark. The body, association or
other organization shall accept him or it as its
member according to the articles of constitution
thereof. Any person who does not ask to join the
body, association or other organization having the
geographic indication as its collective mark may
also duly use the geographic indication, and the
body, association or other organization does not
have the right to prohibit the use.
Article 7. An
interested party entrusting a trademark agency with
the filing of an application for trademark registration
or attending to other trademark matters shall submit
a Power of Attorney. The Power of Attorney shall
indicate such contents and competence as authorized;
the Power of Attorney from a foreign person or foreign
enterprise shall, in addition, indicate the nationality
of the entruster.
Notarization and legalization of the Power of Attorney
and other relevant certificates from a foreign person
or foreign enterprise shall be done based on the
principle of reciprocity.
The foreign person or foreign enterprise mentioned
in Article 18 of the Trademark Law refers to the
foreign person who or foreign enterprise which does
not have its habitual residence or place of business
in China.
Article 8. The
Chinese language shall be used in applying for trademark
registration or attending to other trademark matters.
Where the various certificates, certifying documents
and proofs submitted under the Trademark Law and
these Regulations are in a foreign language, the
Chinese translation thereof shall be attached; where
the Chinese translation is not attached, the certificates,
certifying documents and proofs shall be deemed
not to have been submitted.
Article 9. In
any one of the following circumstances, any staff
member of the Trademark Office and the Trademark
Review and Adjudication Board shall withdraw, or
a party or interested party may request him to withdraw:
(1) he is a party or a close relative to a party
or agent;
(2) he is related in such ways with a party or agent
insofar as the relation would affect impartiality;
(3) he has interests in an application for trademark
registration or any other trademark matters.
Article 10. Unless
otherwise provided for in these Regulations, where
any document is sent to the Trademark Office or
the Trademark Review and Adjudication Board, the
date of receipt shall be the date of delivery where
it is delivered personally, or the date of posting
indicated by the postmark if it is sent by post;
where the date of posting indicated by the postmark
is illegible, or there is no postmark, the date
of receipt shall be the date on which the Trademark
Office or the Trademark Review and Adjudication
Board actually receives the document, except that
the interested party is able to present evidence
as to the actual date of posting indicated by the
postmark.
Article 11. Any
document of the Trademark Office or the Trademark
Review and Adjudication Board may be served by post,
by personal delivery or by other means. Where an
interested party entrusts a trademark agency, delivery
of the document to the trademark agency shall be
deemed delivery thereof to the interested party.
Where any document is sent to an interested party
by the Trademark Office or the Trademark Review
and Adjudication Board, the date of receipt shall
be the date of receipt indicated by the postmark
on which the interested party receives it if it
is sent by post; where the date of posting indicated
by the postmark is illegible, or where there is
no postmark, the document shall be deemed to have
been delivered to the interested party on the fifteenth
day from the date of posting the document; the date
of receipt shall be the date of delivery if it is
delivered personally. Where any document cannot
be sent by post or by personal delivery, the document
may be served by making an announcement. At the
expiration of the thirtieth day from the date of
the announcement, the document shall be deemed to
have been served.
Article 12. Where
an application is filed for international registration,
it shall be done in accordance with the relevant
international treaties to which China has acceded.
The specific measures shall be prescribed by the
administrative department for industry and commerce
under the State Council.
Chapter II. Application
for Trademark Registration
Article 13.
When applying for the registration of a trademark,
a separate application shall be filed in respect
of each class of goods or service according to the
published Classification of Goods and Services.
For each application for the trademark registration,
an Application for Trademark Registration shall
be filed with the Trademark Office, accompanied
by five copies of the reproduction of the trademark;
if color is claimed, five copies of the color reproduction
of the trademark shall be attached, so shall be
a black and white design of the trademark.
The reproduction of the trademark must be clear
and easy to paste and shall be printed on smooth
and clean durable paper or substituted by a photograph.
Its length or breadth shall not be more than 10
cm and less than 5 cm each.
Where an application is filed for the registration
of a three-dimensional sign as a trademark, a statement
shall be made in the application, and the reproduction
capable of defining the three-dimensional shape
be submitted.
Where an application is filed for the registration
of a combination of colors as a trademark, a statement
shall be made in the application, and an explanation
thereof be submitted in writing.
Where an application is filed for the registration
of a certification mark or collective mark, a statement
shall be made in the application, and the certificates
of the qualification of the applicant and regulations
for the administration of the use thereof be submitted.
Where a trademark is in a foreign language or contains
lexical elements in a foreign language, explanation
of its meaning shall be made.
Article 14. Filing
an application for the registration of a trademark,
the applicant shall submit a copy of effective certificate
capable of proving his identification. The name
of the applicant for trademark registration shall
be consistent with the certificate submitted.
Article 15. The
goods or services shall be listed in the application
according to the Classification of Goods and Services.
If the goods or services are not listed in the Classification
of Goods and Services, a description of the said
goods or services shall be attached.
The documents relating to an application for trademark
registration shall be typewritten or printed.
Article 16. If
an application is jointly filed for registration
of the same trademark, a representative shall be
designated in the application; if such representative
is not designated, the first person listed in the
application shall be the representative.
Article 17. If
an applicant changes his name, address, agent, or
deletes or reduces designated goods, he may go through
the formalities for the change with the Trademark
Office.
An applicant who assigns his application for trademark
registration shall go through the formalities for
the assignment with the Trademark Office.
Article 18. The
filing date of an application for trademark registration
shall be the date on which the Trademark Office
receives the application documents. Where the formal
requirements of the application are fulfilled and
the application form is filled out according to
the relevant rules, the Trademark Office will accept
the application and notify the applicant in writing.
Where the formal requirements are not fulfilled
or the application form is not filled out according
to the relevant rules, the Trademark Office will
not accept it, and it shall notify the applicant
in writing and explain the reason.
Where the formal requirements are basically fulfilled
or the application form filled out basically according
to the relevant rules, but amendments are required,
the Trademark Office shall notify the applicant
to make the amendments and require him to do so
according to the contents prescribed and re-submit
it to the Trademark Office within thirty days from
the date on which he receives the notification.
Where the application is amended and re-submitted
to the Trademark Office within the time limit, the
date of filing shall be retained. Where the application
is not amended within the time limit, the application
shall be deemed to have been abandoned, and the
Trademark Office shall notify the applicant in writing.
Article 19. Where
two or more applicants respectively apply for the
registration of identical or similar trademarks
used on the identical or similar goods on the same
day, each applicant shall, within thirty days from
the date of receipt of the notification of the Trademark
Office, submit a proof of his prior use of the mark
in respect of which he has applied for the registration.
Where the applicants used the mark for the first
time on the same day or where none of them has used
the mark, they shall try to resolve the matter through
consultation, and submit a written agreement to
the Trademark Office within thirty days from the
date of receipt of the notification from the Trademark
Office; where the applicants are reluctant to resolve
the matter through consultation or an agreement
is not reached, the Trademark Office shall notify
the applicants that one applicant will be singled
out by lot, and reject the registration applications
filed by the other applicants. Where the Trademark
Office notifies an applicant, but the applicant
does not show up and draw his lot, his application
shall be deemed to have been abandoned, and the
Trademark Office shall notify in writing the applicant
who has failed to show up.
Article 20. Where
an applicant claims the right of priority according
to Article 24 of the Trademark Law, the copy of
the application document which he first filed for
the registration of the trademark shall be certified
by the competent trademark authority accepting the
application, with the date of filing and the application
number indicated.
Where an applicant claims the right of priority
according to Article 25 of the Trademark Law, the
certification documents submitted by him shall be
certified by the administrative department for industry
and commerce under the State Council, except that
the international exhibition on which the goods
are put on display is held inside the territory
of China.
Chapter III. Examination
of Application for Trademark Registration
Article 21. The
Trademark Office shall, in accordance with the Trademark
Law and these Regulations, examine the applications
for the registration of trademark it has accepted.
Applications which conform to the relevant provisions,
or those for the registration of trademarks in respect
of a part of the designated goods which conform
to the relevant provisions, shall be preliminarily
approved and published. Applications which do not
conform to the relevant provisions, or those for
the registration of trademarks in respect of a part
of the designated goods which do not conform to
the relevant provisions, shall be rejected. The
Trademark Office shall notify the applicant in writing
and explain the reason for the rejection.
Where the Trademark Office has preliminarily approved
applications for the registration of trademarks
on a part of the designated goods, the applicant
may apply for the abandonment thereof before the
date of expiration of the opposition period; where
the applicant abandons the registration of trademarks
in respect of a part of the designated goods, the
Trademark Office shall withdraw the preliminary
approval, terminate the examination procedure, and
republish it.
Article 22. Where
an opposition is filed to a trademark having been
preliminarily approved and published by the Trademark
Office, the opponent shall submit the Application
for Trademark Opposition in duplicate to the Trademark
Office. The Application for Trademark Opposition
shall indicate the issue number of the Trademark
Gazette on which the opposed trademark is published,
and the number of preliminary approval of the opposed
trademark. The Application for Trademark Opposition
shall contain the specific requests and facts and
grounds, with relevant proofs and certificates attached.
The Trademark Office shall send a copy of the Application
for Trademark Opposition to the opposed party and
require him to make a reply within thirty days from
the date of his receipt of the copy. His failure
to make a reply shall not affect the adjudication
by the Trademark Office on the opposition.
Where an interested party needs to supplement relevant
proofs and certificates after he raises an opposition
application or makes a reply, he shall make a statement
in the application or reply, and submit the proofs
and certificates within three months from the date
of submission of the application or reply; where
he fails to submit them at the expiration of the
time limit, the interested party shall be deemed
to have abandoned supplementing the relevant proofs
and certificates.
Article 23. The justification of the opposition
mentioned in Article 34, paragraph two, of the Trademark
Law shall include the justification of the opposition
to a registration in respect of a part of the designated
goods. Where such opposition is justified, the application
for the registration of trademarks in respect of
that part of the designated goods shall not be approved.
Where an opposed trademark has, prior to the coming
into effect of the adjudication on the opposition,
been announced as a registered trademark in the
Trademark Gazette, the registration announcement
shall be cancelled. The trademark that has been
approved for registration upon the adjudication
on the opposition shall be re-published.
The trademark approved for registration upon the
adjudication on the opposition shall not have the
retroactive effect on another person's act to use
a sign identical with or similarly to the trademark
on the same or similar goods from the date on which
the period for trademark opposition expires and
before the adjudication on the opposition takes
effect; however, the losses inflicted to the trademark
registrant due to the bad faith in which the sign
is used shall be compensated.
The time limit for the application for review and
adjudication of the trademark approved for registration
upon the adjudication on the opposition shall be
calculated from the date of publication of the adjudication
on the trademark opposition.
Chapter IV. Modification,
Assignment and Renewal of Registered Trademarks
Article 24. When
applying for modification of his name, address or
other registration matters, the registrant shall
file an Application for Modification with the Trademark
Office. The Trademark Office shall, upon examination
and approval, issue the trademark registrant the
relevant certificates, and make an announcement.
Where the application is not approved, the Trademark
Office shall notify the applicant in writing and
explain the reason.
When applying for modification of his name, the
registrant shall submit modification certificate
issued by the relevant registry. An applicant who
has not submitted the modification certificate may
do so within thirty days from the date of filing
the application. Where the submission is not made
within the time limit, the application for the modification
shall be deemed to have been abandoned, and the
Trademark Office shall notify the applicant in writing.
When applying for modification of his name and address,
the trademark registrant shall make the modifications
in all his registered trademarks. If he fails to
do so, the application for the modification shall
be deemed to have been abandoned, and the Trademark
Office shall notify the applicant in writing.
Article 25. When
applying for the assignment of a registered trademark,
the assignor and assignee shall file with the Trademark
Office an Application for Assignment of Registered
Trademark. The formalities of applying for the assignment
of the registered trademark shall be gone through
by the assignee. The Trademark Office, upon examination
and approval of the application, shall issue the
relevant certificate to the assignee and make an
announcement.
When applying for the assignment of a registered
trademark, the trademark registrant shall assign
all the identical or similar trademarks registered
in respect of the same or similar goods. If the
registrant fails to do so, the Trademark Office
shall notify him to correct the situation within
a time limit; if the correction is not made within
the time limit, the application for the assignment
of the registered trademark shall be deemed to have
been abandoned, and the Trademark Office shall notify
the applicant in writing.
Any application for the assignment of a registered
trademark that may mislead the public or cause confusion
or exert any other adverse effects shall not be
approved by the Trademark Office. the Trademark
Office shall notify the applicant in writing and
explain the reason.
Article 26.
If the exclusive right to use a registered trademark
is transferred for reasons other than assignment,
the party receiving the transferred exclusive right
to use the registered trademark shall go to the
Trademark Office with relevant certificates or legal
instruments to go through the formalities for the
transfer of the exclusive right to use the registered
trademark.
When applying for the transfer of the exclusive
right to use a registered trademark, the exclusive
right holder of the registered trademark shall transfer
all the other identical or similar trademarks registered
in respect of the same or similar goods. If the
exclusive right holder fails to do so, the Trademark
Office shall notify him to correct the situation
within a time limit; if the correction is not made
within the time limit, the application for the assignment
of the registered trademark shall be deemed to have
been abandoned, and the Trademark Office shall notify
the applicant in writing.
Article 27. When
applying for the renewal of a trademark registration,
the applicant shall file with the Trademark Office
an Application for Renewal of Trademark Registration.
After examination and approval of the application
for the renewal of a trademark registration, the
Trademark Office shall issue the relevant certificate
and announce it.
The period of validity of a renewed trademark shall
be calculated from the day after the expiration
of the previous period of validity of the said trademark.
Chapter V. Trademark
Review and Adjudication
Article 28. The
Trademark Review and Adjudication Board shall accept
applications for trademark review and adjudication
filed according to the provisions of Articles 32,
33, 41 and 49 of the Trademark Law, and conduct,
according to law, the review and adjudication on
the basis of facts.
Article 29. By
having dispute over a registered trademark mentioned
in Article 41, paragraph three, of the Trademark
Law shall be meant that a registrant of a trademark
in respect of which a prior application is filed
for registration thereof alleges that a trademark
in respect of which another person subsequently
files an application for its registration is identical
with or similar to his trademark registered in respect
of the identical or similar goods.
Article 30.
When applying for the trademark review and adjudication,
the applicant shall file an application with the
Trademark Review and Adjudication Board, and submit
the same number of copies thereof as that of the
other parties; when filing the application for reexamination
based on the Decision or Adjudication made by the
Trademark Office, the applicant shall meantime submit
a copy of the Decision or Adjudication made by the
Trademark Office.
After receipt of the application, the Trademark
Review and Adjudication Board shall accept the application
found to have met the requirements for acceptance
upon examination; the Trademark Review and Adjudication
Board shall not accept the application if it does
not meet the requirements, and notify the applicant
in writing and explain the reason. Where rectification
is required, the Trademark Review and Adjudication
Board shall notify the applicant to make the rectification
within thirty days from the date of receipt of the
notification. If an application still fails to meet
the requirements after the rectification, the Trademark
Review and Adjudication Board shall not accept it,
and notify the applicant in writing and explain
the reason. If the rectification is not made within
the time limit, the application shall be deemed
to have been withdrawn, and the Trademark Review
and Adjudication Board shall notify the applicant
in writing.
Where it finds that an application for the trademark
review and adjudication does not meet the requirements
for acceptance after accepting it, the Trademark
Review and Adjudication Board shall reject the application
and notify the applicant in writing and explain
the reason.
Article 31. After
accepting an application for the trademark review
and adjudication, the Trademark Review and Adjudication
Board shall send, in a timely manner, a copy of
the Application to the other party, and require
him to reply within thirty days from the date of
receipt of the copy of the Application; failure
to make a reply at the expiration of the time limit
shall not affect the review and adjudication by
the Trademark Review and Adjudication Board.
Article 32. Where
an interested party needs to supplement relevant
proofs after he files an application for trademark
review and adjudication or makes a reply, he shall
make a statement to this effect in the Application
or Reply, and submit the proofs within three months
from the date of filing the Application or making
the Reply; if the proofs are not submitted at the
expiration of the time limit, the supplementation
thereof shall be deemed to have be abandoned.
Article 33. The
Trademark Review and Adjudication Board may, at
the request of an interested party or according
to practical needs, decide to conduct a public review
and adjudication of the application therefor.
Where it conducts a public review and adjudication
of an application therefor, the Trademark Review
and Adjudication Board shall notify the interested
party, within fifteen days before the public review
and adjudication is held, of the date and place
of, and the persons conducting the public review
and adjudication. The interested party shall make
a reply within the time limit fixed in the notification.
Where the applicant does not reply, nor attend the
public review and adjudication, his application
for the trademark review and adjudication shall
be deemed to have been withdrawn, and the Trademark
Review and Adjudication Board shall notify him in
writing. Where the respondent does not respond,
nor attend the public review and adjudication, the
Trademark Review and Adjudication Board may conduct
a default review and adjudication.
Article 34. Where
an applicant requests for the withdrawal of his
application before the Trademark Review and Adjudication
Board makes its decision or adjudication, he may
withdraw his application after he explains the reason
in writing to the Trademark Review and Adjudication.
Where the application is withdrawn, the review and
adjudication procedure terminates.
Article 35. Where
an applicant withdraws his application for review
and adjudication, he shall not file another application
for the review and adjudication on the basis of
the same facts and grounds. Where the Trademark
Review and Adjudication Board has made the adjudication
or decision as regards an application for trademark
review and adjudication, any person shall not file
another application for the review and adjudication
on the basis of the same facts and grounds.
Article 36. In
respect of a trademark the registration of which
is cancelled in accordance with Article 41 of the
Trademark Law, the exclusive right to use the trademark
shall be deemed to be non-existent from the beginning.
The decision or adjudication on the cancellation
of the registered trademark has no retroactive effect
on a judgment or decision already made and executed
by the People's Court or the administrative department
for industry and commerce on a case of trademark
infringement, or on a trademark assignment or licensing
contract executed. However, in respect of damage
done to any other person in bad faith by the trademark
registrant, he shall compensate for the damages.
Chapter VI. Administration
of the Use of Trademarks
Article 37. Where
a registered trademark is used, it may carry the
indication of “Registered Trademark in Chinese characters”
or the registration signs on the goods, packaging
or description or other attachments on the goods.
The registration signs include (registered in Chinese
character) and ( ? ). When used, the registration
signs shall be marked or indicated on the upper
or lower right hand corner of the trademark.
Article 38.
Where a Certificate of Trademark Registration is
lost or damaged, it is necessary to apply to the
Trademark Office for re-issuance of the Certificate.
Where the Certificate is lost, the registrant shall
declare the loss of the Certificate by publishing
a declaration in the Trademark Gazette. The damaged
Certificate shall be returned to the Trademark Office
when an application for re-issuance is filed.
Where a Certificate of Trademark Registration is
forged or falsified, criminal liability shall be
imposed according to law based on the provisions
governing the crimes of forging and falsifying certificates
issued by the State administrative authority or
other crimes.
Article 39. In
respect of any of the acts referred to in Article
44 (1), (2) and (3) of the Trademark Law, the administrative
authority for industry and commerce shall order
the trademark registrant to rectify the situation
within a time limit. If the registrant refuses to
comply, the case shall be submitted to the Trademark
Office for cancellation of the registered trademark.
In respect of the act referred to in Article 44
(4) of the Trademark Law, any person may apply to
the Trademark Office for cancellation of the said
registered trademark and explain the circumstances.
The Trademark Office shall notify the trademark
registrant and require him to furnish, within two
months from the date of receipt of the notification,
proof of use of the trademark before the date on
which the application for cancellation is filed,
or a justifiable reason for its non-use. If no proof
of use, nor a justifiable reason for the non-use
is furnished at the expiration of the time limit
or the proof is invalid, the Trademark Office shall
cancel his registered trademark.
The proof of use of a trademark referred to in the
preceding paragraph includes the proofs of the registrant's
use of the registered trademark and his licensing
any other person to use the registered trademark.
Article 40. Registered
trademarks cancelled according to the provisions
of Articles 44 and 45 of the Trademark Law shall
be published by the Trademark Office; the exclusive
right in the registered trademarks shall terminate
on the date of cancellation decision made by the
Trademark Office.
Article 41. Where
the Trademark Office or the Trademark Review and
Adjudication Board cancels a registered trademark
for reasons relating only to a part of the goods
designated, the trademark registration in respect
of this part of the designated goods shall be cancelled.
Article 42. The
amount of the fine imposed in accordance with the
provisions of Articles 45 and 48 of the Trademark
Law shall be less than 20% of the illegal business
turnover or less than two times the illegal profits.
The amount of the fine imposed in accordance with
the provision of Article 47 of the Trademark Law
shall be less than 10% of the illegal business turnover.
Article 43. Where
he licenses another person to use his registered
trademark, the licensor shall submit the trademark
licensing contract to the Trademark Office for filing
within three months from the date on which the contract
is concluded.
Article 44. Where
any person contravening the provisions of Article
40, paragraph two, of the Trademark Law, the administrative
department for industry and commerce shall order
the offender to rectify the situation within a prescribed
time limit. Where the offender refuses to comply,
the administrative department for industry and commerce
shall confiscate the representations of his trademark.
If it is difficult to detach the representations
of the trademark from the goods, both the representations
and goods shall be confiscated and destroyed.
Article 45.
Where a trademark is used in contravention of the
provision of Article 13 of the Trademark Law, an
interested party may request the administrative
department for industry and commerce for prohibition
of the use. When filing the request, the interested
party shall submit proofs that his trademark constitutes
a well-known mark. If the Trademark Office establishes
it as a well-known mark according to the provision
of Article 14 of the Trademark Law, the administrative
department for industry and commerce shall order
the infringer to cease the act of using the well-known
mark in contravention with the provision of Article
13 of the Trademark Law, confiscate and destroy
the representations of the trademark. If it is difficult
to detach the representations of the trademark from
the goods, both the representations and goods shall
be confiscated and destroyed.
Article 46. Where
a trademark registrant applies for the removal,
from the Register, of his registered trademark or
the registration of his trademark in respect of
a part of the designated goods, he shall send an
Application for Trademark Removal and return the
original Certificate of Trademark Registration to
the Trademark Office.
Where a trademark registrant applies for the removal,
from the Register, of his registered trademark or
the registration of his trademark in respect of
a part of the designated goods, the exclusive right
in the registered trademark or the effect thereof
on the part of designated goods shall terminate
on the date of receipt by the Trademark Office of
the Application for Trademark Removal.
Article 47. Where the registrant
of a trademark dies or ceases, and no formalities
have been gone through for transfer of the registered
trademark at the expiration of one year from the
date of the death or cessation, any person is entitled
to apply to the Trademark Office for the removal,
from the Register, of the registered trademark.
When filing an application for the removal, he shall
submit the proofs of the death or cessation of the
trademark registrant.
Where a registered trademark is removed from the
Register owing to the death or cessation of the
trademark registrant, the exclusive right to use
the registered trademark terminates from the date
of the death or cessation of the trademark registrant.
Article 48. Where
a registered trademark is cancelled or removed from
the Register according to the provisions of Articles
46 and 47 of these Regulations, the original Certificate
of Trademark Registration shall become invalid.
Where the registration of the trademark in respect
of a part of the designated goods is cancelled,
or where the trademark registrant applies for removal,
from the Register, the registration of the trademark
in respect of a part of designated goods, the Trademark
Office shall return, to the registrant, the original
Certificate of Trademark Registration on which the
approval of the cancellation or removal has been
marked, or re-issue the Certificate of Trademark
Registration and publish the re-issuance.
Chapter VII. Protection
of the Exclusive Right to Use Registered Trademark
Article 49.
Where a registered trademark contains the generic
name, shape or model of the goods in respect of
which it is used, or directly indicates the quality,
main raw material, function, use, weight, quantity
and other features of the goods, or contains a place
name, the holder of the exclusive right to use the
registered trademark has no right to prohibit others
from duly using.
Article 50. Any
of the following acts shall be an act of infringement
of the exclusive right to use a registered trademark
as provided for in Article 52 (5) of the Trademark
Law:
(1) to use any design which is identical with or
similar to the registered trademark of another person
on the same or similar goods, as the designation
or decoration of the goods, which mislead the public;
or
(2) to intentionally provide any other person with
such facilities as of storage, transportation, postal
service, and concealment in his infringement of
the exclusive right of another person to use a registered
trademark.
Article 51. Where
the exclusive right to use a registered trademark
has been infringed, any person may lodge a complaint
with, or file a report on, the case of infringement
to the administrative department for industry and
commerce.
Article 52. An
act of infringement of the exclusive right to use
a registered trademark shall be subject to a fine
of not exceeding three times the amount of the illegal
business turnover. Where it is impossible to calculate
the amount of the illegal business turnover, the
fine shall be no more than RMB 100,000 yuan.
Article 53. Where
a trademark proprietor believes that another person
has registered his well-known trademark as an enterprise
name, which is likely to deceive, or mislead, the
public, he may file an application with the competent
authority for the registration of enterprise names
for cancellation of the registration of the enterprise
name. The competent authority for the registration
of enterprise names shall handle the matter pursuant
to the Regulations for the Administration of Registration
of Enterprise Names.
Chapter VIII. Supplementary
Provisions
Article 54. Where
a service mark already in continuous use up to 1
July 1993 which is identical with or similar to
the service mark of another person already registered
in respect of the same or similar services may continue
to be used. However, a mark the use of which has
been suspended for three or more years after 1 July
1993 shall not continue to be used.
Article 55. The
specific measures for the administration of trademark
agency shall be separately provided for by the State
Council.
Article 56. The
classification of goods and services for the purposes
of registration of trademarks shall be formulated
and published by the administrative department for
industry and commerce under the State Council.
The documents or forms for filing applications for
the registration of trademarks or for attending
to other trademark matters shall be formulated and
published by the administrative department for industry
and commerce under the State Council.
The rules for trademark review and adjudication
of the Trademark Review and Adjudication Board shall
be formulated and published by the administrative
department for industry and commerce under the State
Council.
Article 57. The
Trademark Office shall set up the Register of Trademark
Registration for the documentation of registered
trademarks and matters relating to the registration.
The Trademark Office shall compile, print and distribute
the Trademark Gazette to publish trademark registrations
and other related matters.
Article 58. Fees
shall be paid for applying for the registration
of trademarks or for handling other trademark matters.
The items and schedule of the fees shall be provided
for and published by the administrative department
for industry and commerce under the State Council
in conjunction with the competent price administrative
department under the State Council.
Article 59. These
Regulations shall enter into force on 15 September
2002. The Implementing Regulations of the Trademark
Law of the People's Republic of China promulgated
by the State Council on 10 March 1983, revised for
the first time with the approval by the State Council
on 3 January 1988, and revised for the second time
with the approval by the State Council on 15 July
1993 and the Answers by the State Council to Issues
Relating to the Attachment of Certificates for the
Purpose of Trademark Registration shall simultaneously
be abrogated.
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