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国务院关于办理商标注册附送证件问题的批复 附:中华人民共和国商标法实施细则(一)

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国务院关于办理商标注册附送证件问题的批复 附:中华人民共和国商标法实施细则
OFFICIAL REPLY OF THE STATE COUNCIL CONCERNING PAPERS FURNISHED AS ATTACHMENTS TO APPLICATIONS FOR TRADEMARK REGISTRATION

国函(1995)29号
(attached with the third revision of the Rules for the Implementation of the Trademark Law of the People's Republic of China)
颁布日期:19950423  实施日期:19950423  颁布单位:国务院

  (April 23, 1995)

  The State Administration for Industry and Commerce:

  We are in receipt of your Report for Instruction Concerning Papers Furnished as Attachments to Applications for Trademark Registration. The State Council approves the proposal that the original Certificate of Trademark Registration be no longer required when an application for modification, assignment or renewal concerning a registered trademark is submitted. For that problem involves the revision of the Rules for the Implementation of the Trademark Law of the People's Republic of China (hereinafter referred to as the Rules for the Implementation of the Trademark Law), the official reply is hereby given as follows:

  1. The first paragraph, Article 20 of the Rules for the Implementation of the Trademark Law shall be revised as: “When applying for modification of name, applicants shall submit an Application for Modification of the Name of Trademark Registrant and verification of the modification to the Trademark Office. Following examination and approval, the Trademark Office shall issue a relevant certificate to the applicant, and publish said modifications.” The second paragraph shall be revised as: “When applying for modifications of address or other relevant matters related to a trademark registration, applicants shall submit an Application for Modification of the Address of the Trademark Registrant or an Application for Modification of Other Matters Related to a Registered Trademark, as well as verification of modifications to the Trademark Office. Following examination and approval, the Trademark Office shall issue a relevant certificate to the applicant, and publish said modifications.”

  2. The first paragraph, Article 21 of the Rules for the Implementation of the Trademark Law shall be revised as: “When applying for the assignment of registered trademarks, assignors and assignees shall jointly submit an Application for the Assignment of Registered Trademark to the Trademark Office. The assignee shall complete application formalities required for applying for assignment of a registered trademark. The assignee shall fulfill all qualifications outlined in Article 2 of these Rules. Upon approving the assignment of trademark, the Trademark Office shall issue a relevant certificate to the assignee, and publish notification of the assignment.

  3. The first paragraph, Article 22 of the Rules for the Implementation of the Trademark Law shall be revised as: “When applying for renewal of a trademark registration, the registrant shall submit an Application for Renewal of Trademark Registration to the Trademark Office, accompanied by five prototypes of the trademark. Following examination and approval of the renewal, the Trademark Office shall issue a relevant certificate to the registrant, and publish notification of the renewal. the Trademark Office shall reject any renewal applications which contravene relevant provisions of the Trademark Law.

  4. Article 20 and 21, as revised, of the Rules for the Implementation of the Trademark Law shall become effective on the date of May 15, 1995.

  5. Article 22, as revised, of the Rules for the Implementation of the Trademark Law shall become effective on November 1, 1998. However, with respect to a registered trademark whose period of validity expires before November 1, 1998 and whose extension period expires before April 30, 1998, applications for renewal filed within the extension period shall be handled in accordance with the original provisions of this Article as not revised.

  Clauses 1, 2 and 4 of this official reply shall be promulgated by the State Administration for Industry and Commerce before May 15, 1995. Clauses 3 and 5 shall be promulgated by the State Administration for Industry and Commerce before November 1, 1998.

  Appendix: RULES FOR THE IMPLEMENTATION OF THE TRADEMARK LAW OF THE PEOPLE'S REPUBLIC OF CHINA

  (Successively amended with the approval of the Sate Council on January 3, 1988, July 15, 1993 and April 23, 1995, and promulgated by Decree No. 31 of the State Administration for Industry and Commerce on May 12, 1995)

  Chapter I General Provisions

  Article 1 These Rules are formulated in accordance with the provisions of Article 42 of the Trademark Law of the People's Republic of China (hereinafter referred to as the Trademark Law)。

  Article 2 Applicants for trademark registration must be enterprises, institutions, social organizations, self-employed industrialists or businessmen, individual partnerships established in accordance with the law, foreigners or foreign enterprises referred to in Article 9 of the Trademark Law.

  Provisions in the Rules concerning trademarks for goods shall also apply to service trademarks.

  Article 3 When applying for initial registration, assignments, renewals, name or address changes, replacement of the certificate of trademark registration or other related matters, the applicant may either entrust the process to a trademark agency approved by the State Administration for Industry and Commerce, or otherwise personally handle the matter.

  When foreigners or foreign enterprises apply for trademark registration in China, or when dealing with related trademark matters, all applications or other related items shall be completed by an agency designated by the State Administration for Industry and Commerce.

  Applications filed for international registration shall be submitted in accordance with the “Madrid Agreement Concerning the International Registration of Marks”。

  Article 4 Fees shall be paid in accordance with relevant stipulations for applications, assignment, renewal, alterations, replacement of certificates and examination of trademark registration, and related matters.

  Article 5 The Trademark Office of the State Administration for Industry and Commerce (hereinafter referred to as the Trademark Office) shall establish and maintain a Trademark Register which records registered trademarks and relevant registration matters.

  The Trademark Office shall edit and issue the Trademark Gazette, which announces trademark registrations and related matters.

  Article 6 In accordance with Article 3 of the Trademark Law, all collective and certification marks approved and registered with the Trademark Office shall be protected by law.

  Procedures for the registration and administration of collective and certification marks shall be separately outlined by the State Administration for Industry and Commerce, in conjunction with related departments of the State Council.

  Article 7 All pharmaceuticals for human consumption and tobacco products listed by the State and published by the State Administration for Industry and Commerce shall obtain a registered trademark.

  Other goods required to obtain a registered trademark in accordance with the stipulations of the State shall be published by the State Administration for Industry and Commerce.

  Article 8 The State Administration for Industry and Commerce shall establish a Trademark Review and Adjudication Board responsible for final decisions and adjudications on matters submitted for examination in accordance with provisions of the Trademark Law and these Rules.

  Chapter II Applications for Trademark Registration

  Article 9 When applying for registration of a trademark, applicants shall file the application with respect to each class of goods as outlined in the published Classification of Goods. Each trademark registration application submitted to the Trademark Office must be accompanied by an Application for Trademark Registration, 10 prototypes of the Requested trademark (prototypes of colored trademarks must be submitted in the exact color), and one black and white copy of the design blueprint.

  Prototypes of the trademark must be clearly discernible adhesive images printed on durable paper with a smooth finish, or otherwise be a photograph. The length or width shall be between 5 to 10 centimeters.

  Article 10 Application forms for trademark registration and related papers shall be completed in pen and ink, writing brush and ink, or typed. All information must be clearly written or typed.

  The name, stamp or seal of the applicant applying for trademark registration shall be the same as that approved or registered. The subject item shall not go beyond the approved or registered scope of business. The designation of items shall be filed in accordance with the table for the classification of goods. A description must be attached for items not listed in the aforementioned table.

  Article 11 Applications for trademark registration of pharmaceuticals for human consumption must bear an attached certificate issued by the administrative department for public health.

  Applications for trademark registration of cigarettes, cigars or packed cut tobacco must bear attached papers indicating certified production approval by competent State authorities responsible for tobacco products.

  Applications for trademark registration of other goods which require a registered trademark in accordance with the stipulations shall bear attached papers certifying the approval of relevant competent departments.

  Article 12 The date of application for registration of a trademark shall be the date the Trademark Office receives the application form and related papers. Where the applicant has completed all required application procedures and has completed the application form and related papers in accordance with relevant stipulations, the Trademark Office shall assign the application a file number and issue a Notification of Acceptance. However, should the applicant fail to properly complete necessary procedures or in some way fail to complete the application form and related papers in accordance with relevant stipulations, the application form shall be returned to the applicant, and no date of application shall be reserved.

  Where application procedures are basically complete or the application form and the related papers are basically inconformity with the relevant stipulations, but there is a need for the applicant to provide necessary supplementary information or make corrections thereto, the Trademark Office shall notify the applicant to submit said information or make said changes and will require the latter to resubmit the supplementary or corrected application to the Trademark Office within fifteen days of receipt of the notification. The filing date shall be reserved if requested supplementary information of or corrected application is resubmitted to the Trademark Office within the specified time limit. However, incase of failure to submit requested supplementary information or corrected application by the expiration of the specified period or thereafter, the application form shall be returned to the applicant, and no date of application shall be reserved.

  Article 13 Where two or more applicants apply for registration of an identical or a similar trademark for the same or similar items on the same day, they shall within 30 days after receiving notification from the Trademark Office furnish requested proof of the dates on which they began using their respective trademarks. Where the use of the trademark began on the same date, or in other cases when a trademark is not yet in use, applicants shall be required to settle the matter through consultations, and further to submit their written agreement to the Trademark Office within 30 days. If no agreement can be reached within said 30 day period, the applicants in question shall draw lots to determine trademark rights. The Trademark Office shall either preside over the process, or shall otherwise adjudicate the matter.

  Article 14 Applicants for trademarks shall submit a Power of Attorney authorizing a trademark agency to file required applications for the registration of trademarks, or for all other matters arising concerning said trademarks. The Power of Attorney shall indicate content and competent authorization. In addition, in cases when the applicant is a foreigner or foreign enterprise, the Power of Attorney shall clearly indicate the nationality of the party granting authorization.

  Foreigners or foreign enterprises shall use the Chinese language when applying for trademark registration or when handling related trademark matters. Notarization and authentication procedures for Powers of Attorney and Relevant certificates shall be completed in accordance with the principle of reciprocity. Chinese translations shall be attached to the completed application form and all related papers submitted in a foreign language.

  Article 15 The Trademark Office maintains the option to review claims for priority in all applications for trademark registration. Specific procedures shall be followed as prescribed and promulgated by the State Administration for Industry and Commerce.

  Chapter III Examination of Trademark Registration

  Article 16 The Trademark Office shall, in accordance with the Trademark Law, examine all applications accepted. Following the prescribed examination, distinctive trademarks which are in conformity with relevant provisions of the Trademark Law, shall receive preliminary approval from the Trademark Office and published in the Trademark Gazette. The Trademark Office shall send a Notification of Rejection to all applicants submitting rejected applications.

  In cases where requests for modifications to applications for trademark are deemed incomplete, the Trademark Office shall send an Examination Advice form to the applicant and require the latter make necessary modifications within fifteen days of receipt of said notification. If applicants fail to submit requested modifications by the expiration date of the specified period, or modifications are submitted at a date beyond the time limit, or modified applications still fail to conform with the relevant provisions of the Trademark Law, the Trademark Office shall reject the application and send A Notification of Rejection to the applicant.

  Article 17 When applying for review of rejected trademarks, applicants shall, within fifteen days of receipt of the notification of rejection, submit an Application for Review of a Rejected Trademark to the Trademark Review and Adjudication Board. The review application must be accompanied by the original Application for Trademark Registration, ten prototypes of the original trademark, one black and white copy of the design and the Notification of Rejection.

  The Trademark Review and Adjudication Board shall render a final decision and notify the applicant with a written reply. Thereafter, trademarks receiving preliminary approval shall be transferred to the Trademark Office for processing.

  Article 18 Parties contesting a trademark (hereinafter referred to as Party B) which, after examination, has received preliminary approval and has been published in the Trademark Gazette, shall submit two copies of the Application for Trademark Opposition to the Trademark Office. The Application for Trademark Opposition shall indicate both the page number and the issue number of the Trademark Gazette in which the contested trademark was published, as well as the number of the preliminary approval. The Trademark Office shall send one copy of the Application for Trademark Opposition to the contested party (hereinafter referred to as Party A), requesting a rebuttal within thirty days of receipt of the notification. An adjudication will then be made on the basis of facts and relevant information submitted by the opposing parties. In the absence of a response from Party A by the expiration date of the specified period, the Trademark Office shall render an adjudication thereon and notify interested parties of the decision.

  Announcements of registered trademarks published in the Trademark Gazette prior to final adjudication and entry of force of contested trademarks shall be null and void.

  Article 19 Interested parties dissatisfied with the adjudication of the Trademark Office concerning contested trademarks may, within fifteen days of receipt of the notification of adjudication, apply for review by submitting two copies of Application for Review of a Contested Trademark to the Trademark Review and Adjudication Board.

  The Trademark Review and Adjudication Board shall make a final adjudication, provide interested parties with written notification and transfer the case to the Trademark Office for relevant processing.

  In cases when an opposition to the issuance of a trademark is considered inappropriate, the Trademark Office shall, after the entry into force of the adjudication concerning a contested trademark, approve the registration of the trademark involved therein.

  Chapter IV Modification, Assignment, Renewal and Adjudication of Disputes Involving Registered Trademarks

  Article 20 When applying for modification of name, applicants shall submit an Application for Modification of the Name of Trademark Registrant and verification of the modification to the Trademark Office. Following examination and approval, the Trademark Office shall issue a relevant certificate to the applicant, and publish said modifications.

  When applying for modifications of address or other relevant matters related to trademark registration, applicants shall submit an Application for Modification of the Address of the Trademark Registrant or an Application for Modification of Other Matters Related to a Registered Trademark, as well as verification of modifications to the Trademark Office. Following examination and approval, the Trademark Office shall issue a relevant certificate to the applicant, and publish said modifications.

  When applying for modifications of names or addresses, registrants shall follow the same modification procedures in respect to all registered trademarks.

  Article 21 When applying for the assignment of registered trademarks, assignors and assignees shall jointly submit an Application for the Assignment of Registered Trademark to the Trademark Office. The assignee shall complete application formalities required for applying for assignment of a registered trademark. The assignee shall fulfill all qualifications outlined in Article 2 of these Rules. Upon approving the assignment of trademark, the Trademark Office shall issue a relevant certificate to the assignee, and publish notification of the assignment.

  When applying for the assignment of a registered trademark, the registrant shall simultaneously complete the same assignment procedure in respect to all identical trademarks, which are either identical with or similar to said registered trademark with respect to both the same or similar goods. When a registered trademark is assigned in respect to such goods as outlined in Article 7 of these Rules, the assignee shall, in accordance with the provisions of Article 11 of these Rules, furnish the Trademark Office with a certificate issued by the competent department concerned.

  Where an application for the assignment of a registered trademark might in any way mislead the public, create confusion or engender any other type of inappropriate influence, the Trademark Office shall reject approval thereof.

  Article 22 When applying for renewal of a trademark registration, the registrant shall submit an Application for Renewal of Trademark Registration to the Trademark Office, accompanied by five prototypes of the trademark. Following examination and approval of the renewal, the Trademark Office shall issue a relevant certificate to the applicant, and publish notification of the renewal. The Trademark Office shall reject any renewal applications which contravene relevant provisions of the Trademark Law.

  The period of validity of a renewed trademark registration shall be calculated from the day following the expiration of the previous period of validity of said trademark.

  Article 23 Applicant dissatisfied with the decision of the Trademark Office to reject an application for assignment or renewal may, within fifteen days of receipt of the notification of rejection, apply for review by submitting an Application for Review of a Rejected Assignment or an Application for Review of a Rejected Renewal, to the Trademark Review and Adjudication Board. Applications should be accompanied by the original Application for Assignment of Registered Trademark or Application for Renewal of Trademark Registration, and the relevant Notification of Rejection.

  The Trademark Review and Adjudication Board shall render a final decision and notify the applicant of the same in writing. Board approvals of the assignment or renewal shall be transferred to the Trademark office for corresponding processing.

  Article 24 Trademark registrants wishing to dispute the registered trademark of a second party shall, within one year from the date of announcement of the registered trademark of the latter in the Trademark Gazette, submit two copies of the an Application for Adjudication of a Disputed Trademark to the Trademark Review and Adjudication Board.

  Upon making a final adjudication of whether to maintain or cancel the disputed registered trademark, the Trademark Review and Adjudication Board shall notify interested parties of the decision in writing, and shall transfer the case to the Trademark Office for corresponding processing. If the grounds for cancellation involve only certain registered components, trademark registration for components involved therein shall be cancelled. If adjudication results in cancellation, the proprietor of the disputed trademark shall, within fifteen days of receipt of the notification of adjudication, return the original Certificate of Trademark Registration to the Trademark Office.

  Article 25 Paragraph 1, Article 27 of the Trademark Law outlines the following fraudulent or unfair acts committed in the acquisition of a trademark registration:

  (1) Fabricating, withholding the truth or forging an application and related registration documents;

  (2) Violating the principles of honesty and full faith and credit to reproduce, counterfeit or translate the well-known trademark of another party in the registration;

  (3) Acquiring a trademark registration in the name of the trademark agent, but without the authorization of the trademark proprietor who has entrusted the registering party;

  (4) Infringing on any prior legal right of another party in the registration; and

  (5) Using any other unfair means to acquire a registration.

  In accordance with Paragraph 1, Article 27 of the Trademark Law, trademark registrants dissatisfied with the decision of the Trademark Office to cancel a trademark registration may, within fifteen days of receipt of the notification of the decision, apply for review by submitting an Application for Review of the Cancellation of an Improperly Registered Trademark to the Trademark Review and Adjudication Board. The Trademark Review and Adjudication Board shall render a final decision thereon, notify the applicant in writing and transfer the case to the Trademark Office for the corresponding processing.

  Any organization or individual claiming that a trademark has been improperly registered may apply for adjudication by submitting two copies of an original Application for the Cancellation of Improperly Registered Trademark to the Trademark Review and Adjudication Board. The Trademark Review and Adjudication Board shall render a final adjudication thereon, notify interested parties of the decision in writing, and transfer the case to the Trademark Office for the corresponding processing.

  The Trademark Office shall publish notification of the cancellation of improperly registered trademarks. The trademark registrant in question shall, within fifteen days of receipt of the notification of the decision or adjudication, return the original Certificate of Trademark Registration to the Trademark Office.

  Where a registered trademark is cancelled in accordance with Paragraph 1 and Paragraph 2, Article 27, of the Trademark Law, exclusive use rights shall be deemed invalid from the registered date. In cases when registered trademarks have been cancelled in accordance with a decision or adjudication, there shall be no recourse concerning any such judgement or orders concerning trademarks involving infringement cases adjudicated and enforced by people's courts, or for any such decisions rendered and enforced by the administrative authority for industry and commerce, as well as any such trademark assignments or trademark licensing contracts in place prior to said cancellation. However, compensation shall be paid should the bad faith actions of a trademark registrant result in damages to any other party.

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