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(Adopted
at the 24th Session of the Standing Committee of the Fifth National
People's Congress, on August 23, 1982)
Chapter
I. General Provisions
Article
1. This Law is enacted for the purposes of improving the administration
of trademarks, of protecting the exclusive right to use a trademark,
and of encouraging producers to guarantee the quality of their goods
and maintain the reputation of their trademarks, with a view to
protecting consumer interests and to promoting the development of
socialist commodity economy.
Article
2. The Trademark Office of the administrative authority for industry
and commerce under the State Council shall be responsible for the
registration and administrative control of trademarks throughout
the country.
Article
3. Registered trademark means a trademark which has been approved
and registered by the Trademark Office. The trademark registrant
shall enjoy an exclusive right to use the trademark, (which right
shall be) protected by law.
Article
4. Any enterprise, institution, or individual producer or trader,
intending to acquire the exclusive right to use a trademark for
the goods produced, manufactured, processed, selected or marketed
by it or him, shall file an application for the registration of
the trademark with the Trademark Office.
Article
5. Where the State prescribes that certain kinds of goods must bear
a registered trademark, registration of a trademark must be applied
for in respect of such goods. Where no trademark registration has
been granted, such goods shall not be sold in the market.
Article
6. Any user of a trademark shall be responsible for the quality
of the goods in respect of which the trademark is used. The administrative
authorities for industry and commerce at all levels shall, through
the administrative control of trademarks, exercise supervision over
the quality of the goods and shall stop any practice that deceives
consumers.
Article
7. Any word, design, or their combination, used as a trademark,
must be distinctive so that it be distinguishable. Where a registered
trademark is used, it should carry the indication "Registered
Trademark" or a sign indicating that it is registered.
Article
8. In trademarks, the following words or designs shall not be used:
(1)
those identical with or similar to the State name, national flag,
national emblem, military flag, or decorations, of the People's
Republic of China;
(2)
those identical with or similar to the State names, national flags,
national emblems, or military flags, of foreign countries;
(3)
those identical with or similar to the flags, emblems or names,
of international intergovernmental organizations;
(4)
those identical with or similar to the symbols, or names, of the
Red Cross or the Red Crescent;
(5)
those relating to generic names or designs of the goods in respect
of which the trademark is used;
(6)
those having direct reference to the quality, main raw materials,
function, use, weight, quantity or other features of the goods in
respect of which the trademark is used;
(7)
those having the nature of discrimination against any nationality;
(8)
those having the nature of exaggeration and deceit in advertising
goods;
(9)
those detrimental to socialist morals or customs, or having other
unhealthy influences.
Article
9. Any foreigner or foreign enterprise intending to apply for the
registration of a trademark in China shall file an application in
accordance with any agreement concluded between the People's Republic
of China and the country to which the applicant belongs, or according
to the international treaty to which both countries are parties,
or on the basis of the principle of reciprocity.
Article
10. Any foreigner or foreign enterprise intending to apply for the
registration of a trademark, or to deal with other matters concerning
a trademark in China, shall entrust the organization designated
by the State to act on his or its behalf.
Chapter
II. Application for Trademark Registration
Article
11. Any application for the registration of a trademark shall, in
a form, indicate, in accordance with the prescribed classification
of goods, the class of the goods and the designation of the goods
in respect of which the trademark is intended to be used.
Article
12. Where any applicant intends to use the same trademark for goods
in different classes, a separate application for registration shall
be filed in respect of each class of the prescribed classification
of goods.
Article
13. Where a registered trademark is intended to be used in respect
of other goods of the same class, a new application for registration
shall be filed.
Article
14. Where any word and/or design of a registered trademark is to
be altered, a new registration shall be applied for.
Article
15. Where, after the registration of a trademark, the name, address
or other registered matters concerning the registrant change, an
application regarding the change shall be filed.
Chapter
III. Examination for, and Approval of, Trademark Registration
Article
16. Where the trademark for which registration has been applied
for is in conformity with the relevant provisions of this Law, the
Trademark Office shall, after examination, preliminary approve the
trademark and publish (it).
Article
17. Where the trademark for which registration has been applied
for is not in conformity with the relevant provisions of this Law,
or where it is identical with or similar to the trademark of another
person which, in respect of the same or similar goods, has been
registered or, after examination, preliminary approved, the Trademark
Office shall refuse the application and shall not publish (the said
trademark).
Article
18. Where two or more applicants apply for the registration of identical
or similar trademarks for the same or similar goods, the preliminary
approval, after examination, and the publication shall be made for
the trademark which was first filed. Where applications are filed
on the same day, the preliminary approval, after examination, and
the publication shall be made for the trademark which was the earliest
used, and the applications of the others shall be refused and (their
trademarks) shall not be published.
Article
19. Any person may, within three months from the date of the publication,
file an opposition against the trademark which, after examination,
has been preliminary approved. If no opposition is filed, or if
it is decided that the opposition is not justified, registration
shall be approved, a trademark registration certificate shall be
issued and (the trademark) shall be published. If it is decided
that the opposition is justified, no registration shall be approved.
Article
20. The Trademark Review and Adjudication Board, established under
the administrative authority for industry and commerce under the
State Council, shall be responsible for handling trademark disputes.
Article
21. Where the application for registration of a trademark is refused
and no publication of the trademark is made, the Trademark Office
shall notify the applicant in writing. Where the applicant is dissatisfied,
he may, within fifteen days from the receipt of the notification,
apply for a review. The Trademark Review and Adjudication Board
shall make a final decision and notify the applicant in writing.
Article
22. Where an opposition is filed against the trademark which, after
examination, has been preliminary approved and published, the Trademark
Office shall hear the opponent and the applicant state facts and
grounds and shall, after investigation and verification, make a
decision. Where any party is dissatisfied, it may, within fifteen
days from the receipt of the notification, apply for review, and
the Trademark Review and Adjudication Board shall make a final decision,
and notify the opponent and the applicant in writing.
Chapter
IV. Renewal, Assignment and Licensing of Registered Trademarks
Article
23. The period of validity of a registered trademark shall be ten
years counted from the date of the approval of the registration.
Article
24. Where ( the registrant) intends to continue to use the registered
trademark beyond the expiration of the period of validity, an application
for renewal of the registration shall be made within six months
before the said expiration. Where no such application could be filed
within the said period, an extension period of six months may be
allowed. If no application is filed by the expiration of the extension
period, the registered trademark shall be canceled.
The
period of validity of each renewal of registration shall be ten
years.
Any
renewal of registration shall be published after approval.
Article
25. Where a registered trademark is assigned, the assignor and assignee
shall jointly file an application with the Trademark Office. The
assignee shall guarantee the quality of the goods in respect of
which the registered trademark is used.
The
assignment of the registered trademark shall be published after
approval.
Article
26. Any trademark registrant may, by signing a trademark license
contract, authorize other persons to use his registered trademark.
The licenser shall supervise the quality of the goods in respect
of which the licensee uses his registered trademark, and the licensee
shall guarantee the quality of the goods in respect of which the
registered trademark is used.
The
trademark license contract shall be submitted to the Trademark Office
for the file.
Chapter
V. Adjudication of Disputes Concerning Registered Trademarks
Article
27. Any person disputing a registered trademark may, within one
year from the date of approval of the trademark registration, apply
to the Trademark Review and Adjudication Board for adjudication.
The
Trademark Review and Adjudication Board shall, after the receipt
of the application for adjudication, notify the interested parties
and request them to respond with arguments within a specified period.
Article
28. Where the trademark, before being approved for registration,
has been the object of opposition and decision, no application for
adjudication, based on the same facts and grounds, may be made.
Article
29. After the Trademark Review and Adjudication Board has made the
final decision maintaining or canceling the disputed registered
trademark, it shall notify the interested parties in writing.
Chapter
VI. Administrative Control of the Use of Trademarks
Article
30. Where any person who uses the registered trademark commits any
of the following, the Trademark Office shall order him to rectify
(the situation) within a specified period or shall cancel the registered
trademark:
(1)
where any word, design, or their combination, of the registered
trademark is altered unilaterally (that is, without the required
registration);
(2)
where the name, address or other registered matters concerning the
registrant of a registered trademark are changed unilaterally (that
is, without the required application);
(3)
where the registered trademark is assigned unilaterally (that is,
without the required approval);
(4)where
the registered trademark has ceased to be used for three consecutive
years.
Article
31. Where the registered trademark is used in respect of goods which
have been roughly or poorly manufactured, or whose superior quality
has been replaced by inferior quality, (so that) consumers are deceived,
the administrative authorities for industry and commerce at all
levels shall, according to the circumstances, order the rectification
(of the situation) within a specified period, and may, in addition
circulate a notice of criticism or impose a fine, or the Trademark
Office may cancel the registered trademark.
Article
32. Where the registered trademark is canceled or has expired and
not been renewed, the Trademark Office shall not approve, during
one year from the date of the cancellation or the removal (on account
of expiration), applications for registration of trademarks identical
with or similar to the said trademark.
Articles
33. In the case of any person violating the provisions of Article
5 of this Law, the local administrative authorities for industry
and commerce shall order him to file and application for registration
within a specified period, and may, in addition, impose a fine.
Article
34. Where any person who uses an unregistered trademark commits
any of the following, the local administrative authorities for industry
and commerce shall stop the use of the trademark, order him to rectify
(the situation) within a specified period, and may, in addition,
circulate a notice of criticism or impose a fine:
(1)
where the trademark is falsely represented as registered;
(2)
where any provision of Article 8 of this Law is violated;
(3)
where the manufacture is rough or poor, or where superior quality
is replaced by inferior quality, (so that) consumers are deceived.
Article
35. Any party dissatisfied with the decision of the Trademark Office
to cancel the registered trademark may apply for review within fifteen
days, from the receipt of the (corresponding) notice. The Trademark
Review and Adjudication Board shall make a final decision and notify
the applicant in writing.
Article
36. Any party dissatisfied with the decision of an administrative
authority for industry and commerce imposing a fine under the provisions
of Articles 31, Article 33 or Article 34 may institute proceedings
with the people's court within fifteen days from the receipt of
the (corresponding) notice. If no proceedings are instituted or
if there is no performance ( complying with the decision imposing
the fine) by the expiration of the said period, the administrative
authority for industry and commerce concerned may ask the people's
court for compulsory execution.
Chapter
VII. Protection of the Exclusive Right to Use Registered Trademarks
Article
37. The exclusive right to use a registered trademark is limited
to the trademark which has been approved for registration and to
the goods in respect of which the use of the trademark has been
approved.
Article
38. Any of the following acts shall be an infringement of the exclusive
right to use a registered trademark: (1) to use a trademark which
is identical with or similar to the registered trademark in respect
of the same or similar to the registered trademark in respect of
the same or similar goods without the authorization of the proprietor
of the registered trademark;
(2)
to make or sell, without authorization, representations of the registered
trademark of another person;
(3)
to cause, in other respects, prejudice to the exclusive right to
use the registered trademark of another person.
Article
39. In the case of any of the acts infringing the exclusive right
to use a registered trademark as provided for in Article 38 of this
Law, the party whose right was infringed may request the administrative
authority for industry and commerce, at or above the county level,
of the location (domicile or establishment) of the infringer to
handle (the matter). The administrative authority for industry and
commerce concerned shall have the power to order the infringer to
stop the infringing act immediately and to compensate the party
whose right was infringed for the damages suffered. The amount of
compensation shall be the profit which the infringer has earned
through the infringement during the period of the infringement or
the damages that the party whose right was infringed has suffered
through the infringement during the period of the infringement.
If the circumstances are serious, the said authority may, in addition,
impose a fine. Any dissatisfied party may institute proceedings
with the people's court within fifteen days from the receipt of
the notice. If no proceedings are institute or if there is no performance
(complying with the decision imposing the fine) by the expiration
of the said period, the administrative authority for industry and
commerce concerned may ask the people's court for compulsory execution.
Where the exclusive right to use the registered trademark was infringed,
the party whose right was infringed may institute proceedings directly
with the people's court.
Article
40. Any party that passes off a registered trademark of another
person - including any party that makes or sells, without authorization,
representations of the registered trademark of another person -
shall compensate for the damages suffered by the party whose right
was infringed and additionally shall be imposed a fine; furthermore,
any person directly responsible (for the passing off) shall be prosecuted,
according to law, by the judicial organs in respect of criminal
responsibility.
Chapter
VIII. Supplementary Provisions
Article
41. Any application for trademark registration and any other proceeding
in trademark matters shall be subject to the payment of a fee. The
rate of the fees shall be prescribed separately.
Article
42. The Implementing Regulations of the Law shall be drawn up by
the administrative authority for industry and commerce under the
State Council. They shall enter into force after they have been
submitted to and approved by the State Council.
Article
43. This Law shall enter into force on March 1, 1983. The "Regulations
Governing Trademarks" promulgated by the State Council on April
10, 1963, shall be abrogated on the same date, and any other provision
concerning trademark contrary to this Law shall cease to be effective
at the same time.
Trademarks
registered before this Law enters into force shall continue to be
valid.
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