TRADEMARK LAW OF THE PEOPLE'S REPUBLIC OF CHINA

unofficial English translation by LLA

(Adopted at the full meeting of the 24th Session of the standing committee of the 5th National People's Congress on August 23, 1982. The 1st correction was according to The Decision concerning to correct Trademark Law Of The People's Republic Of China at the full meeting of the 30th Session of the standing committee of the 7th National People's Congress on February 22, 1993. The 2nd correction was according to The Decision concerning to correct Trademark Law Of The People's Republic Of China at the full meeting of the 24th Session of the standing committee of the 9th National People's Congress on October 27, 2001. )

CHAPTER I GENERAL PROVISIONS
CHAPTER II APPLICATION FOR TRADEMARK REGISTRATION
CHAPTER III EXAMINATION FOR AND APPROVAL OF TRADEMARK REGISTRATION
CHAPTER IV RENEWAL, ASSIGNMENT AND LICENSING OF REGISTERED TRADEMARKS
CHAPTER V ADJUDICATION OF DISPUTES CONCERNING REGISTERED TRADEMARKS
CHAPTER VI ADMINISTRATION OF THE USE OF TRADEMARKS
CHAPTER VII PROTECTION OF THE EXCLUSIVE RIGHTS TO USE REGISTERED TRADEMARKS
CHAPTER VIII SUPPLEMENTARY PROVISIONS

CHAPTER I GENERAL PROVISIONS

Article 1 This Law is enacted for the purposes of improving the administration of trademarks, protecting the exclusive right to use a trademark, and of encouraging producers to guarantee the quality of their goods and services and maintain the reputation of their trademarks, with a view to protecting consumers' and producers' interests and to promote the development of socialist market 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 administration of trademarks throughout the country.
The Administrative authority for Industry and Commerce under the State Council shall set up a Trademark Review and Adjudication Board, which is responsible for the disputes concerning trademarks.

Article 3 A registered trademark means a trademark that has been approved and registered by the Trademark Office, including trademark, service, collective and certificate marks. The trademark registrant shall enjoy an exclusive right to use the trademark, which shall be protected by law.
The collective marks in this Law mean the trademarks that are registered in the name of communities, associations or other organizations, and are used in business activities by its members, in order to indicate the users' membership in the organization.
The certificate marks in this Law are controlled by organizations which supervise over the goods or services, but are used for the goods or services by the units or individuals rather than the organizations, in order to prove the origins, materials, production means, quality or other particular quality.
The special registration and administration for the collective and certificate marks shall be established by the administrative authority for Industry and Commerce under the State Council.

Article 4 Any natural person, legal person or other organization, intending to acquire the exclusive right to use a trademark for the goods produced, manufactured, processed, selected or marketed by it or him, should file an application, where necessary, for the registration of the trademark with the Trademark Office.
Any natural person, legal person or other organization, intending to acquire the exclusive right to use a service mark for the services provided by it or him, shall file an application, where necessary, for the registration of the service mark with the Trademark Office.
The provisions made in this Law concerning trademarks shall apply to service marks.

Article 5 More than two natural persons, legal persons or organizations could jointly apply for one trademark with Trademark Office, and enjoy and perform the exclusive right for the trademark together.

Article 6 As for any of such goods, as prescribed by the State, a trademark registration must be applied for, where no trademark registration has been granted, the goods shall not be sold on the market.

Article 7 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 different levels shall, through the administration of trademarks, stop any behaviors that deceive the consumers.

Article 8 Any visible symbol, including word, device, letter, number, three-dimensional mark and color and their combination, that is used as a trademark of natural persons, legal persons or other organizations to distinguish from that of other's, could be applied for the registration as trademark.

Article 9 The trademarks which are applied for registration should have distinctiveness and be distinguishable, and could not cause conflict with other's prior lawful rights.
The trademark registrants have the rights to indicate "Registered Trademark" or a sign indicating that it is registered.

Article 10 The following symbols shall not be used as trademarks:

(1) those identical with or similar to the State name, national flag, national emblem, military flag or medal of the People's Republic of China, or a particular names of places or the names and devices of a identity buildings of the place where the State organs are located;
(2) those identical with or similar to the State names, national flags, national emblems or military flags of foreign countries, exclusive those having the prior approve by the country;
(3) those identical with or similar to the names, flags, emblems of international intergovernmental organizations, exclusive those obtaining the approve of that organization or unlikely misleading the public;
(4) those identical with or similar to the official symbols and testing marks which indicate the implementing of control or the guarantee, exclusive of those obtaining authorization;
(5) those identical with or similar to the names and symbols of the Red Cross or the Red Crescent;
(6) those having the nature of discrimination against any nationality;
(7) those having the nature of exaggeration and fraud in advertising goods;
(8) those detrimental to socialist morals or customs, or having other unhealthy influences.

The geographical names as the administrative divisions at or above the county level and the foreign geographical names well-known to the public shall not be used as trademarks, but such geographical names as having alternative meanings or being parts of the collective and certificate marks shall be exceptional. Where a trademark using any of the above-mentioned geographical names has been approved and registered, it shall continue to be valid.

Article 11 The following symbols shall not be registered as trademarks:

(1) just containing the general name, device and model of the goods;
(2) just directly indicating the quality, main material, function, using, weight, quantity and other characters;
(3) being lack of distinctiveness.

The above-mentioned symbols having distinctiveness and easily being distinguishable after uses could be registered as trademarks.

Article 12 Where applying for the trademark registration of three-dimensional marks, the shape which results from just the figures of goods, is for the needs of technical effect, or is to make the goods having substantial value, the trademark shall not be registered.

Article 13 In respect of the identical or similar goods, the trademarks which are copying, imitating or translating other's unregistered foreign well-known marks and easily causing confusions, shall not be registered and used.
In respect of different or non-similar goods, the trademarks which are copying, imitating or translating other's registered well-known marks in China, misleading the public, which results in possible harms to the interests/rights of the registrant of the well-known mark, shall not be registered and used.

Article 14 To verify a well-known mark shall consider the following factors:

(1) the well-knowness among the public concerned about the mark;
(2) the time of the continuous use of the mark;
(3) the lasting time, intensity and geographical coverage of any promoting of the mark;
(4) the protection records for the mark as a well-known one;
(5) other factors that the mark is well-known.

Article 15 Without authorization, the agent or representative registers/applies for the registration in his own name the person's entrusting or represented trademark, where the person lodges an opposition/dispute, the trademark shall not be registered and used.

Article 16 Where the geographical indication is in the trademark, but the goods is not originated from the indicated place, which misleads the public, the trademark shall not be registered and used; but that having been registered in good faith shall continue to be valid.
The geographical indication as the above-mentioned means that the indication which is labeling the places where the goods origin from, the particular quality, reputation or other characters of the goods, which are mainly decided by the natural or social factors in the area.

Article 17 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 18 Any foreigner or foreign enterprise intending to apply for the registration of a trademark or do any other matters concerning a trademark in China shall entrust any of such organizations of professional qualification as recognized by the State to act as his or its agent.

CHAPTER II APPLICATION FOR TRADEMARK REGISTRATION

Article 19 An applicant 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 to be used.

Article 20 Where any applicant intends to register the same trademark for goods in different classes, an application for registration shall be filed in each class according to the prescribed classification of goods.

Article 21 Where a registered trademark is to be used in respect of other goods under the same class, a fresh application for registration shall be filed.

Article 22 Where the registered trademark needs to be altered, a fresh registration shall be applied for.

Article 23 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.

Article 24 The applicant of the trademark registration, filing the application of the same trademark for the same goods in China within six months from the day when he raised application of the trademark registration abroad, according to the agreement concluded between the People's Republic of China and the foreign country, the international treaty to which both countries are parties, or the principle of reciprocal priority, shall enjoy the priority right.
The applicant claiming the priority right according to the previous article should submit written statement when submitting the application of trademark registration, and the certified copy of the first trademark application shall be late-filed within the later three months. It shall be regarded as no priority claimed where the written statement was not submitted, or the certified copy of the first trademark application not duly filed.

Article 25 Where the trademark is first used on the international exhibition which is hosted or recognized by Chinese Government, within six months from the day when the goods is exhibited, the applicant of the trademark shall enjoy the priority right.
The applicant claiming priority right according to the previous article shall submit the written statement when filing the application for the trademark registration, and file the name of the exhibition where the goods was exhibited, the proof of the trademark used on the goods, exhibition date and other documents for evidences. It will be considered as not claiming the priority when no written statement is submitted, or the evidence filed on time.

Article 26 The items and materials provided for the application for the trademark registration shall be true, accurate and complete

CHAPTER III EXAMINATION FOR AND APPROVAL OF TRADEMARK REGISTRATION

Article 27 Where a trademark the registration of which has been applied for is in conformity with the relevant provisions of this Law, the Trademark Office shall, after examination, preliminarily approve the trademark and publish it.

Article 28 Where a trademark the registration of which has been applied for is not in conformity with the relevant provisions of this Law, or it is identical with or similar to the trademark of another person that has, in respect of the same or similar goods, been registered or preliminary approved, the Trademark Office shall refuse the application and the trademark shall not be published.

Article 29 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 has been used earlier, and the application by others shall be refused and shall not be published.

Article 30 Any person may, within three months from the date of the publication, file an opposition against the trademark that has, after examination, been preliminarily approved. If no opposition has been filed, the registration shall be approved, a certificate of trademark registration shall be issued and the trademark shall be published.

Article 31 The application for the trademark registration shall not harm other's existing rights, or apply for the registration in bad faith of other's trademark which has been used and of some reputation.

Article 32 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 of the same in writing. Where the applicant is dissatisfied, he may, within fifteen days from receipt of the notification, apply for a review to The Trademark Review and Adjudication Board. The Trademark Review and Adjudication Board shall make a decision and notify the applicant in writing.
Where the applicant is dissatisfied with the decision of the Trademark Review and Adjudication Board, he may, within thirty days from receipt of the notification, institute legal proceedings before the people's court.

Article 33 Where an opposition is filed against the trademark that has, after examination, been preliminary approved and published, the Trademark Office shall hear both the opponent and applicant state facts and grounds and shall, after investigation and verification, make a decision. Where any party is dissatisfied, he may, within fifteen days from receipt of the notification, apply for a review, and the Trademark Review and Adjudication Board shall make a final decision and notify both the opponent and applicant in writing.
Where any party is dissatisfied with the decision made by the Trademark Review and Adjudication Board, he may, within thirty days from receipt of the notification, institute legal proceedings before the people's court. The people's court shall inform the other party of the trademark review to be the third person to participate in the legal proceedings.

Article 34 Where the party do not apply for a review for the decision made by the Trademark Office, or do not institute legal proceedings at people's court for the decision made by the Trademark Review and Adjudication Board, the decision shall enter into effect.
After examination, the opposition is not tenable, the registration shall be approved, the certificate of trademark registration shall be issued and the trademark shall be published; where the opposition is tenable, the registration shall not be approved.
After examination, the opposition is not tenable and the registration is approved, the registration date for the trademark application shall be counted from after the deadline of third months after the preliminary approval publication.

Article 35 The examination shall be taken in time for the trademark registration applications and trademark reviews.

Article 36 Where the applicant or registrant of the trademark discovers obvious mistakes in the documents of the trademark application or registration, he shall be able to apply for the corrections. The Trademark Office shall make corrections according to the laws and regulations and shall inform the party concerned.
The corrections mentioned-above shall no involve in the substantial parts in the documents of the trademark application and registration.

CHAPTER IV RENEWAL, ASSIGNMENT AND LICENSING OF REGISTERED TRADEMARKS

Article 37 The period of validity of a registered trademark shall be ten years, counted from the date of approval of the registration.

Article 38 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 date. Where no application therefor has been filed within the said period, a grace period of six months may be allowed. If no application has been filed at the expiration of the grace period, the registered trademark shall be cancelled.
The period of validity for each renewal of registration shall be ten years.
Any renewal of registration shall be published after it has been approved.

Article 39 Where a registered trademark is assigned, both the assignor and assignee shall sign in the assignment agreement and 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 a registered trademark shall be published after it has been approved. The assignee shall enjoy the exclusive right to the trademark after the publication of the approval.

Article 40 The trademark registrant may, by signing in a trademark license agreement, authorize others to use his registered trademark. The licensor 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 licensed trademark is used.
Where any party is authorized to use a registered trademark of another party by the agreement, the name of the licensee and the origin of the goods must be indicated in the goods bearing the registered trademark.
The trademark license agreement shall be submitted to the Trademark Office for record.

CHAPTER V ADJUDICATION OF DISPUTES CONCERNING REGISTERED TRADEMARKS

Article 41 Where a registered trademark stands in violation of the provisions of Article 10, Article 11 and Article 12 of this Law, or the registration of a trademark was acquired by fraud or any other unfair means, the Trademark Office shall cancel the registered trademark in question; and any other organization or individual may request the Trademark Review and Adjudication Board to make an adjudication to cancel such registered trademark.
Where a registered trademark stands in violation of the provisions of Article 13, Article 15, Article 16 and Article 31 of this Law, within five years from the date of the registration, the trademark owner or the interest party may request the Trademark Review and Adjudication Board to make a decision to cancel such registered trademark. For the registration in bad faith, the owner of well-known trademark shall not be subject to the time limit of five years.
In addition to the situations regulated in the preceding paragraph, within five years from the date of approval of the trademark registration, the cancellation application could be applied with the Trademark Review and Adjudication Board for adjudication.
The Trademark Review and Adjudication Board shall, after receipt of the application for adjudication, notify the party concerned and request him to respond with arguments within a time limit.

Article 42 Where a trademark application, before being approved for registration, has been opposed and decided, no application for cancellation adjudication shall be filed based on the same facts and grounds.

Article 43 After the Trademark Review and Adjudication Board has made a decision to either maintain or cancel a registered trademark, it shall notify the parties concerned of the same in writing.
Where any party is dissatisfied, he may, within thirty days from receipt of the notification, institute legal proceedings at people's court. The people's court shall inform the other party of the trademark dispute to be the third person to participate in the proceedings.

CHAPTER VI ADMINISTRATION OF THE USE OF TRADEMARKS

Article 44 Where any person who uses a registered trademark has committed any of the following, the Trademark Office shall order him to rectify the situation within a specified period or cancel the registered trademark:

(1) where any word, device or their combination of a 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); and
(4) where the registered trademark has ceased to be used for three consecutive years.

Article 45 Where a registered trademark is used in respect of the goods that 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 different levels shall, according to the circumstances, order rectification of the situation within a specified period, and may, in addition, circulate a notice of criticism or impose a fine, and the Trademark Office may cancel the registered trademark.

Article 46 Where a registered trademark has been cancelled or has not been renewed at the expiration, the Trademark Office shall, during one year from the date of the cancellation or removal thereof, approve no application for the registration of a trademark that is identical with or similar to the said trademark.

Article 47 Where any person violates the provisions regulated in Article 6 of this Law, the local administrative authority for industry and commerce shall order him to file an application for the registration within a specified period, and may, in addition, impose a fine.

Article 48 Where any person who uses an unregistered trademark has committed any of the following, the local administrative authority 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 10 of this Law is violated; and
(3) where the manufacture is rough or poor, or where superior quality is replaced by inferior quality, so that consumers are deceived.

Article 49 Any party dissatisfied with the decision of the Trademark Office to cancel a registered trademark may, within fifteen days from receipt of the corresponding notice, apply for a review. The Trademark Review and Adjudication Board shall make a decision and notify the applicant in writing.
Where the party is dissatisfied, he may, within thirty days from receipt of the notification, institute legal proceedings at people's court.

Article 50 Any party dissatisfied with the decision of the administrative authority for industry and commerce to impose a fine under the provisions of Article 45, Article 47 or Article 48 of this Law may, within fifteen days from receipt of the corresponding notice, institute legal proceedings with the people's court. Where no legal proceedings instituted and no performance of the decision taken at the expiration of the said period, the administrative authority for industry and commerce shall request the people's court for compulsory enforcement thereof.

CHAPER VII PROTECTION OF THE EXCLUSIVE RIGHTS TO USE REGISTERED TRADEMARKS

Article 51 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 52 Any of the following acts shall be an infringement of the exclusive right to use a registered trademark:

(1) to use a trademark that is identical with or similar to a registered trademark in respect of the same or similar goods without the authorization of the proprietor of the registered trademark;
(2) to sell goods that infringing the exclusive right to a registered trademark;
(3) to counterfeit, or to make, without authorization, reproductions of a registered trademark of another person, or to sell such reproductions;
(4) to change the registered trademark without the trademark owner's approval and put goods bearing the changed mark into market again;
(5) to harm and infringe, in other respects, other's exclusive trademark right.

Article 53 Where any party has committed any of such acts to infringe the exclusive trademark right as stipulated in Article 52 of this Law and causes disputes, the parties concerned may negotiate. Where the parties do not wish to negotiate or the negotiation fails, the trademark registrant or the party concerned could institute legal proceedings with the people's court, or request the administrative authority for industry and commerce to resolve it. Where the administrative authority for industry and commerce considers the infringement is tenable, it shall order the infringer to immediately stop the infringement, confiscate or destroy the infringing goods and the tools to manufacture the infringing goods and falsify the reproductions of registered trademark, and may impose a fine. Where any party is dissatisfied with the decision of handling, he may, within fifteen days from receipt of the notice, according to The Administrative Litigation Law of People's Republic Of China, institute legal proceedings with the people's court. Where no legal proceedings instituted or performance taken of the decision at the expiration of the said period, the administrative authority for industry and commerce may request the people's court for compulsory enforcement thereof. The administrative authority for industry and commerce, at the request of the complaint, may mediate for compensation of infringement; where the mediation fails, the complaint could institute legal proceedings according to The Civil Litigation Law of People's Republic of China.

Article 54 To the action of infringing trademark exclusive rights, the administrative authority for industry and commerce may investigate and treat according to laws, and transfer any suspect to the legal authority in time where the criminal acts are concerned.

Article 55 The administrative authority for industry and commerce above county level, according to information about the illegal suspect evidences or reports, when investigating and treating the suspect infringement of other's trademark rights, may perform the following powers:

(1) inquire the parties concerned, investigate about the trademark infringement;
(2) check and copy the contracts, invoices, account books and other related materials concerning the infringement;
(3) on-site investigation for the trademark infringement;
(4) investigate the related articles of the infringement; holding up or detaining the articles proved infringement of other's trademark rights.

Where the administrative authority for industry and commerce performs the authorities as the above-mentioned according to law, the parties concerned shall assist and cooperate, and shall not resist or obstruct.

Article 56 The amount of compensation for infringing the exclusive rights of registered trademark is the profits getting from the infringing actions during the infringing period by the infringer, or the remedies for the infringed during the infringement period including the reasonable payments paid by the complaint for stopping the infringement.

Where the profits getting from the infringing actions by the infringer mentioned above or the losses suffered by the complaint is hard to define, the people's court, according the facts of the infringement, shall judge a compensation less than 500,000 RMB yuan.
Where any person sells infringing goods unconsciously, no compensation shall be paid by him when he could prove the goods are lawfully obtained and the supplier is identified.

Article 57 Where the trademark registrant or interested party has evidence to prove others are carrying out or will carry out the trademark infringement actions, if without prevention in time, the legal rights would be harmed to the degree that it is incompensated, he could request the people's court, before the litigation, to order to stop the infringement and to make the properties preserved.
The people's court, when handling the request above-mentioned, shall apply the regulations in Article 93 to Article 96 and Article 99 of The Civil Litigation Law of People's Republic Of China.

Article 58 In order to stop infringing actions, under the circumstance that the evidences may vanish or be difficult to be later obtained, the trademark registrant or interested party may apply with the people's court for evidence preservation before the legal proceedings.
The people's court must make decisions within 48 hours after receiving the request; once it is decided to preserve the evidences, it shall be enforced at once.
The people's court could order the complaint to offer money guarantees, or reject the request if no guarantee is made.
The people's court shall relieve of the preservation where the complaint does not institute legal proceedings with 15 days after the evidence preservation carried out.

Article 59 To use a trademark that is identical with a registered trademark in respect of the same goods without the authorization of the proprietor of the registered trademark and commit a crime, criminal sanctions should be given according to law besides the compensations for the losses of party infringed.
To counterfeit, or to make without authorization reproductions of other's registered trademark, or, to sell such reproductions, and to commit a crime, criminal sanctions should be given according to law besides the compensations for the losses of party infringed.
To sell goods that he knows bearing a counterfeited registered trademark and to commit a crime, criminal sanctions should be given according to law besides the compensations for the losses of party infringed.

Article 60 The civil servants engaged in trademark registration, administration and review must act upon laws, be honest and self-disciplined, devoted to the duty and serve with politeness.
The Trademark Office, The Trademark Review and Adjudication Board and the civil servants engaged in trademark registration, administration and review shall not engage in the trademark agency and production and management activities.

Article 61 The administrative authority for industry and commerce shall establish the internal supervision system supervising and examining the law enforcement and obeying the disciplines by the civil servants engaged in trademark registration, administration and review.

Article 62 The civil servants engaged in trademark registration, administration and review, neglecting one's duties, abusing one's powers, cheating and taking privileges and breaking the laws of trademark registration, administration and review, receiving money and properties from the parties concerned, seeking unfair benefits, which constitutes a crime, shall be given criminal sanctions according to the laws; where the degree for constituting a crime is not concerned, he shall be given administrative punishment according to the laws and regulations.

CHAPTER VIII SUPPLEMENTARY PROVISIONS

Article 63 Any application for a trademark registration and for other matters concerning a trademark shall be subject to payment of the fee. The schedule of fees in details shall be prescribed separately.

Article 64 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 provisions concerning trademarks contrary to this Law shall cease to be effective at the same time.

Trademarks registered before this Law entering into force shall continue to be valid.

(The new Trademark Law has been effective since December 1, 2001)