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关于对外贸易中商标管理的规定 Administration of Trademarks in Foreign Trade Provisions

2006-05-16 15:31   我要纠错 | 打印 | 收藏 | | |

外经贸管发[1995]340号
(Promulgated by the Ministry of Foreign Trade and Economic Co-operation and State Administration for Industry and Commerce on 13 July 1995. Effective as of 1 August 1995.)
颁布日期:19950713  实施日期:19950801  颁布单位:对外贸易经济合作部、 国家工商行政管理局

  Article 1 These Provisions are formulated in accordance with the PRC, Foreign Trade Law and the PRC, Trademark Law (hereafter, “Trademark Law”) to maintain order in the foreign trade business, safeguard the lawful rights and interests of trademark registrants, encourage enterprises to open up the international market by means of trademark strategies and promote the development of China's foreign trade.

  Article 2 The Ministry of Foreign Trade and Economic Co-operation (hereafter, “MOFTEC”) and the State Administration for Industry and Commerce (hereafter, “SAIC”) shall be responsible for the administration, supervision and directing of trademarks in foreign trade throughout the country.

  Article 3 The foreign economic and trade committees (offices or bureaux) of provinces, autonomous regions, centrally-governed municipalities and municipalities with an independent development plan (hereafter, “local departments in charge of foreign economic relations and trade”) and administrations for industry and commerce of provinces, autonomous regions, centrally-governed municipalities and municipalities with an independent development plan (hereafter, “local administration departments of industry and commerce”) shall be responsible for the administration, supervision and directing of trademarks in foreign trade within their own administrative regions.

  Article 4 Import and export chambers of commerce shall supervise and coordinate the use of trademarks by, and provide advisory services to, their member enterprises in accordance with the articles of association as well as relevant laws and regulations.

  Article 5 For the purposes of these Provisions, the term “trademarks” shall refer to commodity trademarks, service trademarks and other trademarks approved for registration by the Trademark Bureau of the State Administration for Industry and Commerce.

  Article 6 The administration and use of trademarks by foreign trade operators shall comply with the Trademark Law as well as relevant laws and regulations, and shall be subject to directing, supervision and inspection of relevant departments.

  Article 7 Foreign trade operators shall be entitled to the rights, according to law, to use and deal with their registered trademarks autonomously, and shall not be subject to interference by any other work units or individuals.

  Article 8 Foreign trade operators shall, in line with the actual situations of their own work units, establish trademark administration organizations, improve the trademark administration system, register domestic and foreign trademarks in a timely manner, work out trademark strategies and originate well-known trademarks.

  Article 9 A foreign trade operator may use a registered trademark of another party only if he has obtained consent of the owner of such registered trademark and entered into a trademark licensing contract according to law.

  The owner of such registered trademark must strictly supervise the performance of the trademark licensing contract, ensure the quality of commodities and maintain the good-will of the trademark.

  The licensee must strictly comply with the trademark licensing contract and observe the rules of the licensor in favour of the licensor's will in sales marketing, dealing with clients, pricing, quality, advertising, publicity and other areas.

  The licensee may not sublicense another party to use the registered trademark which has been licensed to him.

  Article 10 With respect to a trademark designated or provided for use by another party, foreign trade operators shall, when engaging in import and export, request such party to provide true and valid supporting documents on the exclusive right to the trademark or supporting documents on the licensing of such trademark within the scope, and verify the documents. Such trademark may not be identical or similar to the trademarks registered on identical or similar existing Chinese commodities, and the packaging of the commodities with such trademark may not be identical or similar to the existing packaging by another party in China.

  Article 11 When one party of a Sino-foreign equity or co-operative joint venture uses a registered trademark of the opposite party, the use of such trademark must be clearly specified in the equity or co-operative joint venture agreement. When the equity or co-operative joint venture applies for registration of the trademark in its own name, a notarized agreement on the ownership of the trademark upon termination of the equity or co-operative joint venture relationship shall have been entered into before each equity or co-operative joint venture party submits a registration application.

  Article 12 Foreign trade operators shall ensure that the trademarks used by their commodities do not violate the Trademark Law and other relevant regulations when purchasing such commodities, acting as a sales agent or holding advertising, publicity, exhibitions and other sales activities. Where the trademarks used by such commodities are not owned by the suppliers, the foreign trade operators shall strictly examine the trademark licensing contracts held by the suppliers. Where the suppliers neither have the right to use the trademarks for supplying goods to foreign trade operators nor the right to authorize another party to act as an agent for exporting such commodities, no orders may be placed for the purchase of such commodities.

  Article 13 Foreign trade operators shall be prohibited from committing the following acts in foreign trade activities:

  1. prohibited acts as listed in the Trademark Law and Trademark Law Implementing Rules;

  2. applying, in a foreign country and in the name of one's own work unit or in other names, for registration and use of the trademark of another party already registered in China;

  3. using packaging for the same commodity identical or similar to that of a commodity of another party, or containing deceptive, untrue and misleading wordy explanations in such packaging;

  4. the trademark used by the imported commodities in the business is in violation of China's Trademark Law, other relevant rules and regulations, policies and relevant international conventions or agreements; and

  5. other acts causing damages to the exclusive right of another party to a registered trademark and disrupting foreign trade business order.

  Article 14 With respect to foreign trade operators in violation of these Provisions, the MOFTEC may impose the following penalties according to the circumstances, in addition to the penalties imposed by the administration authority of industry and commerce in accordance with relevant stipulations of the Trademark Law and Trademark Law Implementing Rules:

  1. issuing a circular of criticism;

  2. imposing administrative penalties on leaders of the work unit held liable and on directly liable persons or instructing relevant departments to impose administrative penalties on leaders of the work unit held liable and on directly liable persons;

  3. suspending or disqualifying from participation in various types of import and export commodity trade fairs;

  4. reducing the export commodity quota;

  5. suspending or revoking the right of the work unit to deal in a certain commodity in the foreign trade; and/or

  6. suspending or revoking the right of the work unit to deal in foreign trade.

  Article 15 Local departments in charge of foreign economic relations and trade as well as import and export chambers of commerce may, according to their limits of administrative powers, impose corresponding penalties on foreign trade operators who violate trademark laws, rules or regulations.

  Article 16 When competent departments at all levels are investigating trademark infringements, relevant work units and individuals shall offer co-operation. For any of the following acts, a warning or a circular of criticism may be issued, corresponding administrative penalties shall be imposed on the enterprise's statutory proxies and directly liable persons, and criminal liability pursued according to law where the circumstances are so serious that a criminal offence is constituted:

  1. withholding truth of the facts, providing false documents or hiding or destroying evidence;

  2. refusing to provide relevant contract, documents, information and other supporting documents;

  3. refusing to explain and clarify questions or requests without a legitimate reason that are raised within a specified period of time and at a specified place; or

  4. hindering inspection by other means.

  Article 17 Where personnel working in competent departments at all levels cover up illegal acts by taking advantage of their posts and rights, practise favouritism or are involved in malpractice or dereliction of duty, the departments in which they are working or the superior competent departments shall impose administrative penalties on such personnel. Where the circumstances are so serious that a criminal offence is constituted, criminal liability shall be pursued according to law.

  Article 18 The MOFTEC shall be responsible for interpretation of these Provisions.

  Article 19 These Provisions shall be effective as of 1 August 1995.

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