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中华人民共和国商标法(修正) Trademark Law of the People's Republic of China

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(Adopted at the 24th Meeting of the Standing Committee of the Fifth National People's Congress on August 23, 1982, and amended in accordance with the Decision on Revising the Trademark Law of the People's Republic of China adopted at the 30th Meeting of the Standing Committee of the Seventh National People's Congress on February 22, 1993)
时效性:已被修正  颁布日期:19930222  实施日期:19830301  失效日期:20011201  颁布单位:全国人大常委会

  Contents

  Chapter I General Provisions

  Chapter II Application for Trademark Registration

  Chapter III Examination and Approval of Trademark Registration

  Chapter IV Renewal, Assignment and Licensing of Registered Trademarks

  Chapter V Determination of Disputes Concerning Registered Trademarks

  Chapter VI Administrative Control of the Use of Trademarks

  Chapter VII Protection of the Right to Exclusive Use of a Registered Trademark

  Chapter VIII Supplementary Provisions

  Chapter I General Provisions

  Article 1 This Law is formulated for the purpose of improving the administration of trademarks, protecting the right to exclusive use of trademarks and encouraging producers to guarantee the quality of their goods and maintain the reputation of their trademarks, so as to protect the interests of consumers and promote the development of the socialist commodity economy.

  Article 2 The Trademark Office of the administrative department for industry and commerce under the State Council shall be in charge of the work of trademark registration and administration throughout the country.

  Article 3 Registered trademarks are those that have been approved and registered by the Trademark Office. Trademark registrants shall enjoy the right to exclusive use of their trademarks and shall be protected by law.

  Article 4 Any enterprise, institution or self-employed industrialist or businessman that needs to acquire the right to exclusive use of a trademark for the goods it or he produces, manufactures, processes, selects or markets shall file an application for registration of goods trademark with the Trademark Office.

  Any enterprise, institution or self-employed industrialist or businessman that needs to acquire the right to exclusive use of a trademark for the services it or he provides shall file an application for registration of service trademark with the Trademark Office.

  Provisions regarding the goods trademarks in this Law shall be applicable to service trademarks.

  Article 5 With respect to goods that the State has designated as requiring the use of a registered trademark, an application for trademark registration must be filed; the goods may not be sold on the market before registration is granted.

  Article 6 The user of a trademark shall be responsible for the quality of the goods on which the trademark is used. The administrative departments for industry and commerce at all levels shall, by means of trademark administration, exercise supervision over the quality of goods and stop any practice that deceive consumers.

  Article 7 Any word or design, or combination thereof, used as a trademark, shall have distinctive characteristics so as to facilitate identification. Wherever a registered trademark is used, it shall bear the words “Registered trademark” or a sign indicating that it is registered.

  Article 8 The following words or designs may not be used in trademarks:

  (1) those identical with or similar to the national name, national flag, national emblem, military flag or medals of the People's Republic of China;

  (2) those identical with or similar to the national name, national flag, national emblem or military flag of any foreign country;

  (3) those identical with or similar to the flag, emblem or name of any intergovernmental international organization;

  (4) those identical with or similar to the symbol or name of the Red Cross or the Red Crescent;

  (5) the generic name or design of the goods concerned;

  (6) those directly indicating the quality, main raw materials, function, use, weight, quantity or other characteristics of the goods concerned;

  (7) those having the nature of discrimination against any nationality;

  (8) those constituting exaggerated and deceitful advertising; and

  (9) those detrimental to socialist morality or customs, or having other harmful influences.

  Geographic names of administrative divisions at or above the county level or foreign geographic names known to the public shall not be used as trademarks, with the exception, however, of those geographic names having other meanings. Registered trademarks in which geographic names are used shall remain valid.

  Article 9 Where a foreigner or foreign enterprise applies for trademark registration in China, the matter shall be handled in accordance with any agreement concluded between the country to which the applicant belongs and the People's Republic of China, or any international treaty to which both countries are parties, or on the basis of the principle of reciprocity.

  Article 10 Where a foreigner or foreign enterprise applies for trademark registration or deals with other trade mark matters in China, it shall entrust an organization designated by the Chinese Government to act on its behalf.

  Chapter II Application for Trademark Registration

  Article 11 An applicant for trademark registration shall report, in accordance with the prescribed classification of goods, the class of the goods and the designation of the goods on which the trademark is to be used.

  Article 12 If an applicant intends to use the same trademark on goods in different classes, it or he shall submit applications for registration in accordance with the classification of goods.

  Article 13 If a registered trademark needs to be used on other goods of the same class, a new application for registration shall be filed.

  Article 14 If any word or design of a registered trademark needs to be changed, a new application for registration shall be filed.

  Article 15 If a change needs to be made in the name, address or any other registered matter concerning the registrant of a registered trademark, an application to make the change shall be filed.

  Chapter III Examination and Approval of Trademark Registration

  Article 16 When an application has been made to register a trademark that is in conformity with the relevant provisions of this Law, the Trademark Office shall make a preliminary examination and approval of that trademark and shall publicly announce it.

  Article 17 If an application has been made to register a trademark that is not in conformity with the relevant provisions of this Law or that is identical with or similar to another person's trademark which has already been registered or given preliminary examination and approval for use on the same kind of goods or similar goods, the Trademark Office shall reject the current application and shall not publicly announce that trademark.

  Article 18 If two or more applicants apply for registration of identical or similar trademarks for the same kind of goods or similar goods, the trademark whose registration was first applied for shall be given preliminary examination and approval and shall be publicly announced; if the applications are filed on the same day, the trademark which was first used shall be given preliminary examination and approval and shall be publicly announced, and the applications of the others shall be rejected and shall not be publicly announced.

  Article 19 Any person may file an opposition to a trademark which has been given preliminary examination and approval, within three months from the day it was publicly announced. If no opposition is filed, or if it is determined that the opposition is not justified, registration shall be granted, a trademark registration certificate shall be issued and the trade mark shall be publicly announced. If it is determined that the opposition is justified, no registration shall be granted.

  Article 20 The administrative department for industry and commerce under the State Council shall establish a Trademark Review and Adjudication Board to be responsible for handling trademark disputes.

  Article 21 When an application for trademark registration has been rejected and the trademark is not to be publicly announced, the Trademark Office shall notify the applicant in writing. If the applicant does not agree with the rejection, it may apply for a reexamination within 15 days after receiving the notification, and the Trademark Review and Adjudication Board shall make a final decision and notify the applicant in writing.

  Article 22 If an opposition is filed against a trademark which has been given preliminary examination and approval and has been publicly announced, the Trademark Office shall hear the opponent's and the applicant's statements of the facts and reasons and shall, after investigation and verification, make a decision. If a party disagrees with the decision, it may apply for a reexamination within 15 days after receiving notification of the decision, 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 day the registration is approved.

  Article 24 If a registrant needs to continue to use the registered trademark after the period of validity expires, an application for renewal of registration shall be made within six months before the expiration. If the registrant fails to make such an application within that period, an extension period of six months may be granted. If no application has been filed before the extension period expires, the registered trademark shall be cancelled.

  The period of validity for each renewal of registration shall be ten years.

  After a renewal of registration has been approved, it shall be publicly announced.

  Article 25 When a registered trademark is to be assigned, the assignor and the assignee shall jointly file an application with the Trademark Office. The assignee shall guarantee the quality of the goods on which the registered trademark is to be used.

  After the assignment of a registered trademark has been approved, it shall be publicly announced.

  Article 26 A trademark registrant may, by concluding a trademark licensing contract, authorize another person to use its registered trademark. The licensor shall supervise the quality of the goods on which the licensee uses the licensor's registered trademark, and the licensee shall guarantee the quality of the goods on which the registered trademark is to be used.

  If any party is authorized to use a registered trademark of another person, the name of the licensee and the origin of the goods must be indicated on the goods that bear the registered trademark.

  The trademark licensing contract shall be submitted to the Trademark Office for the record.

  Chapter V Determination of Disputes Concerning Registered Trademarks

  Article 27 If a registered trademark contravenes the provisions of Article 8 of this Law, or the registration thereof is obtained through fraudulent or other unfair means, the Trademark Office shall cancel such registered trademark; other entities or individuals may request the Trademark Review and Adjudication Board to make a ruling cancelling such registered trademark.

  If a dispute arises over a registered trademark, with the exception of the circumstances specified in the preceding paragraph, the disputant may, within one year from the date the trademark is registered after due verification, apply to the Trademark Review and Adjudication Board for a ruling.

  After the Trademark Review and Adjudication Board has received an application for a ruling, it shall notify the parties concerned and request them to reply within a specified period.

  Article 28 If an opposition was filed and a ruling already made prior to the approval of the registration of a trademark, the same facts and reasons may not be used in an another application for a ruling.

  Article 29 After the Trademark Review and Adjudication Board has made the final ruling upholding or revoking a registered trademark, it shall notify the parties concerned in writing.

  Chapter VI Administrative Control of the Use of Trademarks

  Article 30 In the event of any of the following acts concerning the use of a registered trademark, the Trademark Office shall order rectification of the situation within a specified period or shall revoke the registered trademark:

  (1) if any word or design, or combination thereof, of the registered trademark is altered without authorization;

  (2) if the registrant's name, address or any other registered matters concerning the registered trademark is changed without authorization;

  (3) if the registered trademark is assigned without authorization; and

  (4) if the registered trademark has not been used for three consecutive years.

  Article 31 If a registered trademark is used on crudely manufactured goods that are passed off as being of highquality, thus deceiving consumers, the administrative departments for industry and commerce at various levels shall, according to the circumstances, order rectification of the situation within a specified period and may, in addition, circulate a notice on the matter or impose a fine, or the Trademark Office may revoke the registered trademark.

  Article 32 If a registered trademark is revoked or is not renewed after its period of validity expires, the Trademark Office shall not approve any application for the registration of a trademark identical with or similar to the said trademark within one year from the day of the revocation or cancellation.

  Article 33 In the event of a violation of the provisions of Article 5 of this Law, the local administrative department for industry and commerce shall order the violator to file an application for registration within a specified period and may, in addition, impose a fine.

  Article 34 In the event of any of the following acts concerning the use of an unregistered trademark, the local administrative department for industry and commerce shall stop the use of the trademark, order rectification of the situation within a specified period and may, in addition, circulate a notice on the matter or impose a fine:

  (1) if the trademark is falsely represented as being a registered one;

  (2) if the trademark violates the provisions of Article 8 of this Law; or

  (3) if the trademark is used on crudely manufactured goods that are passed off as being of high quality, thus deceiving consumers.

  Article 35 If a party disagrees with the decision of the Trademark Office to revoke a registered trademark, it may apply for a reexamination within 15 days after receiving notification of the revocation, and the Trademark Review and Adjudication Board shall make a final decision and notify the applicant in writing.

  Article 36 If a party disagrees with the decision of the administrative department for industry and commerce to impose a fine under the provisions of Articles 31, 33 or 34 of this Law, it may bring a suit in a people's court within 15 days after receiving the notification of the decision. If, at the expiration of such a period, the party has neither brought a suit nor complied with the decision, the relevant administrative department for industry and commerce shall apply to the people's court for compulsory enforcement of its decision.

  Chapter VII Protection of the Right to Exclusive Use of a Registered Trademark

  Article 37 The right to exclusive use of a registered trademark shall be limited to trademarks which have been approved for registration and to goods on which the use of a trademark has been approved.

  Article 38 Any of the following acts shall be an infringement of the right to exclusive use of a registered trademark:

  (1) using a trademark which is identical with or similar to the registered trademark on the same kind of goods or similar goods without a licence from the owner of that registered trademark;

  (2) knowingly selling goods bearing counterfeit registered trademarks;

  (3) forging or making without authorization representations of a registered trademark of another person or selling representations of a registered trademark which are forged or made without authorization; or

  (4) harming, in other ways, another person's right to exclusive use of a registered trademark.

  Article 39 In the event of any infringement of the right to the exclusive use of a registered trademark as set forth in Article 38 of this Law, the infringed may request the administrative department for industry and commerce at or above the county level for disposition. The relevant administrative department for industry and commerce shall have the power to order the in fringer to stop the infringing act immediately and to compensate the infringed for its or his losses; the amount of the compensation shall be the profits the infinger has obtained as a result of the infringement during the period of the infringement or the losses suffered by the infringed as a result of the infringement during the period of the infringement. If the infringement of the right to exclusive use of a registered trademark does not constitute a crime, the administrative department for industry and commerce may impose a fine upon the infringer. If any party is not satisfied with the decision of the administrative department for industry and commerce ordering a cessation of the infringing act and imposing a fine, it may bring a suit in a people's court within 15 days from receipt of notification of the decision. If, on the expiration of such a period, the party has neither brought a suit nor complied with the decison, the relevant administrative department for industry and commerce shall apply to the people's court for compulsory enforcement.

  In the event of an infringement of the right to exclusive use of a registered trademark, the party whose right has been infringed may also directly bring a suit in a people's court.

  Article 40 Any person who counterfeits a registered trademark of another person shall, if the act constitutes a crime, be investigated for criminal responsibility according to law in addition to compensating for the losses suffered by the infringed.

  Any person who forges or makes without authorization representations of a registered trademark of another person or sells representations of a registered trademark which are forged or made without authorization shall, if the act constitutes a crime, be investigated for criminal responsibility according to law in addition to compensating for the losses suffered by the infringed.

  Any person who knowingly sells goods bearing counterfeit registered trademarks shall, if the act constitutes a crime, be investigated for criminal responsibility according to law in addition to compensating for the losses suffered by the infringed.

  Chapter VIII Supplementary Provisions

  Article 41 Applicants for trademark registration and the handling of other trademark matters shall pay a fee, the specific standards of which shall be prescribed separately.

  Article 42 Rules for the implementation of this Law shall be formulated by the administrative department for industry and commerce under the State Council, and shall be implemented after they have been submitted to and approved by the State Council.

  Article 43 This Law shall go into effect as of March 1, 1983. On that same day, the Regulations on Trademark Administration promulgated by the State Council on April 10, 1963 shall simultaneously be repealed, and any other provisions concerning trademark administration that conflict with this Law shall be invalidated.

  Trademarks registered before this Law goes into effect shall continue to be valid.

  DECISION OF THE STANDING COMMITTEE OF THE NATIONAL PEOPLE'S CONGRESS ON REVISING THE TRADEMARK LAW OF THE PEOPLE'S REPUBLIC OF CHINA (attached with the first revision of the Trademark Law of the People's Republic of China)

  (Adopted at the 30th Meeting of the Standing Committee of the Seventh National People's Congress on February 22, 1993 and promulgated by Order No. 69 of the President of the People's Republic of China on the same date)

  The 30th Meeting of the Standing Committe of the Seventh National People's Congress, having considered the proposal of the Draft Amendment to the Trademark Law of the People's Republic of China submitted by the State Council, decides to make the following amendments to the Trademark Law of the People's Republic of China:

  1. Article 4 is amended to include the following three paragraphs:

  “Any enterprise, institution or self-employed industrialist or businessman that needs to acquire the right to exclusive use of a trademark for the goods it or he produces, manufactures, processes, selects or markets shall file an application for registration of goods trademark with the Trademark Office.

  Any enterprise, institution or self-employed industrialist or businessman that needs to acquire the right to exclusive use of a trademark for the services it or he provides shall file an application for registration of service trademark with the Trademark Office. Provisions regarding the goods trademarks in this Law shall be applicable to service trademarks.“

  2. A new paragraph is added to Article 8 as the second paragraph: “Geographic names of administrative divisions at or above the county level or foreign geographic names known to the public shall not be used as trademarks, with the exception, however, of those geographic names having other meanings. Registered trademarks in which geographic names are used shall remain valid.”

  3. Article 12 is amended to read as follows: “If an applicant intends to use the same trademark on goods in different classes, it or he shall submit applications for registration in accordance with the classification of goods.”

  4. A new paragraph is added to Article 26 as the second paragraph: “If any party is authorized to use a registered trademark of another person, the name of the licensee and the origin of the goods must be indicated on the goods that bear the registered trademark.”

  5. The first paragraph of Article 27 is amended to read as the following two paragraphs: “If a registered trademark contravenes the provisions of Article 8 of this Law, or the registration thereof is obtained through fraudulent or other unfair means, the Trademark Office shall cancel such registered trademark; other entities or individuals may request the Trademark Review and Adjudication Board to make a ruling cancelling such registered trademark.

  If a dispute arises over a registered trademark, with the exception of the circumstances specified in the preceding paragraph, the disputant may, within one year from the date the trademark is registered after due verification, apply to the Trademark Review and Adjudication Board for a ruling.“

  6. Article 29 is amended to read as follows: “After the Trademark Review and Adjudication Board has made the final ruling upholding or revoking a registered trademark, it shall notify the parties concerned in writing.”

  7. A sub-paragraph is added to Article 38 as sub-paragraph(2): “Knowingly selling goods bearing counterfeit registered trademarks;”

  Sub-paragraph (2) of Article 38 is amended to be sub-paragraph(3): “forging or making without authorization representations of a registered trademark of another person or selling representations of a registered trademark which are forged or made without authorization.”

  Sub-paragraph (3) of Article 38 accordingly becomes sub-paragraph (4)。

  8. The first paragraph of Article 39 is amended to read as follows: “In the event of any infringement of the right to the exclusive use of a registered trademark as set forth in Article 38 of this Law, the infringed may request the administrative department for industry and commerce at or above the county level for disposition. The relevant administrative department for industry and commerce shall have the power to order the infringer to stop the infringing act immediately and to compensate the infringed for its or his losses; the amount of the compensation shall be the profits the infinger has obtained as a result of the infringement during the period of the infringement or the losses suffered by the infringed as a result of the infringement during the period of the infringement. If the infringement of the right to exclusive use of a registered trademark does not constitute a crime, the administrative department for industry and commerce may impose a fine upon the infringer. If any party is not satisfied with the decision of the administrative department for industry and commerce ordering a cessation of the infringing act and imposing a fine, it may bring a suit in a people's court within 15 days from receipt of notification of the decision. If, on the expiration of such a period, the party has neither brought a suit nor complied with the decison, the relevant administrative department for industry and commerce shall apply to the people's court for compulsory enforcement.”

  9. Article 40 is amended to include the following three paragraphs:

  “Any person who counterfeits a registered trademark of another person shall, if the act constitutes a crime, be investigated for criminal responsibility according to law in addition to compensating for the losses suffered by the infringed.

  Any person who forges or makes without authorization representations of a registered trademark of another person or sells representations of a registered trademark which are forged or made without authorization shall, if the act constitutes a crime, be investigated for criminal responsibility according to law in addition to compensating for the losses suffered by the infringed.

  Any person who knowingly sells goods bearing counterfeit registered trademarks shall, if the act constitutes a crime, be investigated for criminal responsibility according to law in addition to compensating for the losses suffered by the infringed.“

  This Decision shall come into force as of July 1, 1993.

  The Trademark Law of the People's Republic of China shall be amended correspondingly in accordance with this Decision and shall be republished.

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