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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(二)

2006-05-16 16:02   我要纠错 | 打印 | 收藏 | | |

  Chapter V Administration of the Use of Trademarks

  Article 26 Registered trademarks in use shall carry the indication of “ZHUCE SHANGBIAO” (registered trademark - the editor) or the registration sign of (ZHU) (registered - the editor) or (R)。 Where it is inconvenient for a commodity to bear such indications or signs, accompanying packaging or description and other attachments shall be so marked.

  Article 27 Where a Certificate of Trademark Registration is lost or damaged, the trademark registrant must apply for resistance thereof. The trademark registrant shall submit an Application for Re issuance of a Certificate of Trademark Registration to the Trademark Office, accompanied by five prototypes of the registered trademark. When a Certificate of Trademark Registration is lost, the trademark registrant shall publish the loss thereof in the Trademark Gazette. A damaged Certificate of Trademark Registration shall be returned to the Trademark Office.

  Where any person commits any act of forging or altering a Certificate of Trademark Registration, the local administrative authority for industry and commerce shall, in accordance with the seriousness of the case, impose a fine not exceeding 20,000 RMB Yuan, and shall seize all copies of the forged or altered Certificate of Trademark Registration.

  Article 28 Where a person is found to have committed any act referred to in Items (1), (2) and (3) of Article 30 of the Trademark Law, the administrative authority for industry and commerce shall order the trademark registrant to rectify the situation within a specified period. If the registrant refuses to undertake rectification, the administrative authority for industry and commerce in the relevant location shall submit the case to the Trademark Office for cancellation of the registered trademark.

  Article 29 Where any person has committed acts referred to in Item (4) of Article 30 of the Trademark Law, any other interested party may apply to the Trademark Office for cancellation of the registered trademark in question by stating the facts related thereto. The Trademark Office shall notify the trademark registrant and require the registrant to furnish proof of use of said trademark or otherwise state fair reasons for non-use thereof within three months of receipt of said notifications. If the registrant fail to furnish proof of use by the expiration of the specified period, or said proof is invalid, the Trademark Office shall cancel the registered trademark.

  Use of a trademark referred to in the preceding paragraph shall include the use of said trademark on the goods themselves, as well packages or containers for said goods, in trade related documents, and use in advertising, exhibitions or any other business activities.

  Article 30 Applications filed for the registration of trademarks identical with or similar to a trademark cancelled under the provisions of Article 29 of these Rules in respect to the same or similar goods shall not be subject to the provisions of Article 32 of the Trademark Law.

  Article 31 The administrative authority for Industry and Commerce shall order persons who have committed any act outlined in Article 31 and Item (3) of Article 34 of the Trademark Law to rectify the situation within a specified period. In serious cases, said authority shall order the infringing party to carry out a self-examination of said violations, and circulate a notice of criticism. In addition, the authority shall impose a fine not exceeding 20% of the volume of his illegal business, or not exceeding twice the amount of illegal profits; poisonous and harmful goods, or goods with no use value, shall be destroyed; the Trademark Office shall cancel registered trademarks used on such goods in accordance with provisions of the Trademark Law.

  Article 32 The administrative authority for industry and commerce shall prohibit any person found to have committed any acts referred to in Item (1) and (2) of Article 34 of the Trademark Law from any form of advertising thereof. In addition, the authority shall seal or seize representations of said trademark and order the infringing party to rectify the situation within a specified period. In accordance with the seriousness of the case, the authority may also circulate a notice of criticism, and may impose a fine not exceeding 20% of the volume of the illegal business.

  Article 33 The administrative authority for industry and commerce shall prohibit any person found to have violated the provisions of Article 5 of the Trademark Law from the sale and advertising of the goods in question. The authority shall seal or seize the representations of the trademark, and may, according to the seriousness of the case, impose a fine not exceeding 10% of the volume of the illegal business.

  Article 34 No person shall be permitted to engage in illegal activities related to traffic in, printing or reproducing representations of registered trademarks.

  The administrative authority for industry and commerce shall force any person found in violation of provisions outlined in the preceding paragraph to cease and desist from illegal activities and shall seize all representations of the trademark. In addition, in accordance with the seriousness of the case, the authority may impose a fine not exceeding 20% of the volume of his illegal business. The Trademark Office may cancel the registered trademark of any person found illegally selling representations of said registered trademark. Cases involving infringements on the exclusive rights for a registered trademark shall be handled in accordance with provisions in Article 43 of these Rules.

  Article 35 Trademark registrants authorizing any other person to use a registered trademark shall sign a trademark license contract for such use. Both the licensor and licensee shall, within three months of the consummation of a trademark license contract, submit a copy of said contract to the administrative authority for industry and commerce at the county level of his location for reference. The licensor shall submit a second copy of said contract to the Trademark Office for the record, with the latter publishing same in the Trademark Gazette.

  The administrative authority for industry and commerce at the reference location of the licensor or the licensee shall order any party found violating the provisions of the preceding paragraph to rectify the situation within a specified period. If said party refuses to rectify the problem, the administrative authority for industry and commerce shall impose the prescribed fine and submit the case to the Trademark Office for cancellation of the registered trademark.

  The administrative authority for industry and commerce at the licensee's reference location shall order any party found violating the provisions of Paragraph 2, Article 26 of the Trademark Law to rectify the situation within a specified period, and shall seize representations of the licensed trademark of the licensee. In addition, in accordance with the seriousness of the case, may impose a fine not exceeding 50,000 RMB Yuan.

  Article 36 Trademark registrants authorizing any other person to use a registered trademark shall ensure the licensee is qualified in accordance with stipulations in Article 2 of these Rules.

  Where licensors authorize any other person to use a registered trademark with respect of any goods outlined in Article 7 of these Rules, the licensees shall, in accordance with Article 11 of these Rules, furnish the certifying papers issued by the competent authority concerned as an attachment thereto when submitting a copy of the contract to the administrative authority for industry and commerce for reference.

  Article 37 When making a decision to cancel a registered trademark under the provisions of Article 30 or 31 of the Trademark Law or Article 28, 29, 31, 34 or 35 of these Rules, the Trademark Office shall provide the trademark registrant and the administrative authority for industry and commerce at the registrant's reference location with written notification.

  Trademark registrants dissatisfied with the decision of the Trademark Office to cancel a registered trademark, may, within fifteen days of receipt of the notification of cancellation, apply for review by submitting an Application for Review of the Cancelled Trademark to the Trademark Review and Adjudication Board.

  The Trademark Review and Adjudication Board shall render a final decision, and provide written notification to the trademark registrant and the administrative authority for industry and commerce at the registrant's reference location. The case will then be transferred to the Trademark Office for corresponding processing.

  Article 38 Trademark registrants applying for removal of a registered trademark from the Trademark Register, shall submit an Application for Trademark Removal to the Trademark Office, and return the original Certificate of Trademark Registration thereto.

  Article 39 The Trademark Office shall publish the cancellation or removals of all registered trademarks in the Trademark Gazette. Effective from the date of announcement of the cancellation or removal thereof, there shall be no further exclusive use rights to the trademark. Where a registered trademark is cancelled, the administrative authority for industry and commerce at the registrant's reference location shall recall the Certificate of Trademark Registration in question and transfer same to the Trademark Office.

  Article 40 Interested parties dissatisfied with decisions made by the administrative authority for industry and commerce under the provisions of Chapter VI of the Trademark Law and Chapter V of these Rules may, within Fifteen days of receipt of the notification of the decision, apply to the administrative authority for industry and commerce at the higher level for reconsideration of the decision. Said authority at the higher level shall render a decision within two months of receipt of the application for reconsideration. Interested parties dissatisfied with the reconsideration decision may, within fifteen days of receipt of the notification of the decision, institute legal proceedings in the people's court. Incases when no application for reconsideration has been filed, no legal proceedings instituted or there is no on-going performance related to the decision by the expiration of the specified period, the administrative authority for industry and commerce shall request that the relevant people's court execute compulsory action thereof.

  Chapter VI Protection of Exclusive Rights to Use a Registered Trademark

  Article 41 The following acts shall constitute infringements of the exclusive rights to use a registered trademark as referred to in Item (4) of Article 38 of the Trademark Law:

  (1) Knowingly or otherwise dealing in goods which infringe on the exclusive rights of another person to use a registered trademark;

  (2) Using any word, phrase or device identical with, or similar to a registered trademark of another person used for same or similar goods, as the designation or design of goods which is sufficient to mislead the public; and

  (3) Intentionally providing any person with facilities related to storage, transportation, postal services and concealment which infringe on the exclusive rights of another person to use a registered trademark.

  Article 42 In cases involving infringements on the exclusive rights of another person to use a registered trademark, any interested party may lodge a complaint or report the case of infringement to the administrative authority for industry and commerce at or above the county level in the reference location of the in ringer or location of the actual act of infringement. The trademark registrant may otherwise institute legal proceedings directly with people's courts.

  When determining infringements on the exclusive rights of a person to use a registered trademark, the administrative authority for industry and commerce may exercise the following functions and powers to investigate and obtain evidence:

  (1) Conduct direct inquiries with interested parties in the case;

  (2) Inspect all articles related to the act of infringement, and when necessary order the confiscation of same;

  (3) Investigate all acts of infringement; and

  (4) Examine or reproduce all contracts, accounts and any other commercial data connected with the act of infringement.

  Interested parties are required to participate fully when the administrative authority for industry and commerce exercises the functions and powers outlined in the preceding paragraph.

  Article 43 The administrative authority for industry and commerce may take the following action to halt infringements on the exclusive rights of a person to use a registered trademark:

  (1) Issue an order to immediately cease and desist from the sale of such goods;

  (2) Seize and destroy illegal representations of the trademark in question;

  (3) Order the counterfeit trademark be removed from remaining goods;

  (4) Seize molds, plates and any other paraphernalia directly related to infringements on the exclusive rights of a person to used a trademark; and

  (5) Order and supervise the destruction of articles related to the infringement in cases where it is unable to halt acts of infringement according to measures outlined in the preceding four sub-paragraphs, or if it is impossible to separate the infringing trademark from the goods.

  Where infringements of the exclusive right to use a registered trademark are not considered serious enough to constitute a crime, the administrative authority for industry and commerce may, in accordance with the seriousness of the case, impose a fine not exceeding 50% of the volume of the illegal business, or five times profits earned as a result of the infringement. With regard to representatives of an organization directly responsible for infringements on the exclusive rights of a person to use a registered trademark, the administrative authority for industry and commerce may, in accordance with the seriousness of the case, impose a fine not exceeding 10,000 RMB Yuan.

  The administrative authority for industry and commerce may, at the request of the trademark registrant, order infringing party to pay compensation for damages suffered by the former. Interested parties dissatisfied therewith may institute legal proceedings with the relevant people's court.

  Article 44 Interested parties dissatisfied with the decision made by the administrative authority for industry and commerce under the provisions of Paragraph 1 and 2 of the preceding article may, within fifteen days of receipt of the notification of the decision, apply to the administrative authority for industry and commerce at the higher level for reconsideration of the decision. Said authority at the higher level shall render a decision within two months of receipt of the application for reconsideration. Thereafter, interested parties dissatisfied with the reconsideration decision may, within fifteen days of receipt of the notification of the decision, institute legal proceedings with the relevant people' court. In cases when no application for reconsideration has been filed, no legal proceedings instituted, or there is no on-going performance related to the decision by the expiration of the specified period, the administrative authority for industry and commerce shall request that the relevant people's court execute compulsory action thereof.

  Article 45 Where any person misrepresents the registered trademark of another person, any interested party may lodge a complaint with, or report the violation, to the administrative authority for industry and commerce, or appropriate procuratorial agency.

  Complaints lodged or reports of the violation received by the administrative authority for industry and commerce shall be dealt with in accordance with provisions in Article 43 of these Rules. If cases are serious enough to constitute a crime, any person directly responsible for the infringement shall be prosecuted according to law by the responsible judicial department.

  Chapter VII Supplementary Provisions

  Article 46 Parties applying for review under the provisions of Article 21, 22 or 35 of the Trademark Law or Article 23 or 25 of these Rules shall do it within the specified period. In cases involving extraordinary circumstances or for various other reasons deemed fair reasons, the interested party may request an extension of thirty days before the expiration of said period. The final decision for approval or disapproval, however, rests solely with the Trademark Review and Adjudication Board.

  Documents mailed or otherwise delivered by post shall be dated according to the date of the postmark. In cases when postmarks lack clarity, or there is no postmark, the date of receipt or the mailing date by the interested party respectively shall be twenty days after the Trademark Office dispatches or twenty days before the Trademark Office receives the document in question.

  Article 47 Application forms for trademark registration or any other matters related to trademarks shall be prescribed and published by the State Administration for Industry and Commerce.

  The schedule of fees with respect to applications for trademark registrations and for any other matters related to trademarks shall be prescribed and published by the State Administration for Industry and Commerce in accordance with the relevant state rules and regulations.

  The Classification of Goods for the Purposes of the Registration of Trademarks shall be published by the State Administration for Industry and Commerce.

  Article 48 Service marks in use prior to July 1, 1993, identical with, or similar to any registered service mark (other than a well-known service mark) of another party with respect to the same or similar services, may continue in accordance with relevant regulations issued by the State Administration for Industry and Commerce.

  Article 49 The State Administration for Industry and Commerce shall be responsible for interpreting these Rules.

  Article 50 These Rules shall enter into force on the date of promulgation.

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