Article
2 The provisions of this Regulation governing goods trademarks shall also
apply to service trademarks.
Article
3 To request well-known trademark protection under Article 13 of the Trademark Law, a trademark holder
shall submit evidential materials proving that the trademark is a well-known
trademark. As needed for trying or handling the case, the Trademark Office and
the Trademark Appeal Board shall, based on the evidential materials submitted
by the party, determine whether the trademark is a well-known trademark in
accordance with Article 14 of the Trademark Law.
Article
4 The geographic indications as mentioned in Article 16 of the Trademark Law may be registered upon
application as certification marks or collective marks in accordance with the Trademark Law and this Regulation.
Where a geographic indication is registered as a certification mark, any
natural person, legal person or other organization whose goods satisfy the
conditions for using the geographic indication may request the use of the
certification mark, and the organization which controls the certification mark
shall permit the use. Where a geographic indication is registered as a
collective mark, any natural person, legal person or other organization whose
goods satisfy the conditions for using the geographic indication may file a
request for joining the group, association or other organization which has
registered the geographic indication as a collective mark, and the group,
association or other organization shall accept the natural person, legal person
or other organization as a member according to its bylaws; or if the natural
person, legal person or other organization chooses not to file a request for
joining the group, association or other organization which has registered the
geographic indication as a collective mark, the natural person, legal person or
other organization is entitled to legitimately use the geographic indication,
and the group, association or other organization has no right to prohibit the
use.
Article
5 Where a party authorizes a trademark agency to apply for trademark
registration or handle other trademark matters, a power of attorney shall be
submitted, stating the authorized matters and the limit of power. If the client
is a foreign national or a foreign enterprise, the power of attorney shall also
state the client's nationality.
The principle of reciprocity shall apply to the notarization and authentication
requirements for the powers of attorney of foreign nationals or foreign
enterprises and other relevant certification documents.
In an application for trademark registration or assignment, if the applicant or
assignee is a foreign national or a foreign enterprise, a recipient within the
territory of China shall be designated in the application form to receive the
legal documents issued by the Trademark Office and the Trademark Appeal Board
on subsequent trademark matters. The Trademark Office and the Trademark Appeal
Board shall serve the legal documents on subsequent trademark matters upon the
recipient within the territory of China.
The foreign national or foreign enterprise as mentioned in Article 18 of the Trademark Law means a foreign
national or a foreign enterprise which does not have a habitual residence or
business premises within China.
Article
6 The Chinese language shall be used in the application for trademark
registration or in the handling of other trademark matters.
If any of the certificates, certification documents or evidential materials
submitted under the Trademark Law and this Regulation
is in a foreign language, a Chinese version shall be attached thereto;
otherwise, the certificate, certification document or evidential material shall
not be deemed to have been submitted.
Article
7 A staff member of the Trademark Office or the Trademark Appeal Board
shall disqualify himself or herself, and a party or an interested party may
request disqualification of the staff member:
(1) The staff member is a party or is a near relative of a party or the agent
thereof.
(2) The staff member has any other relation with a party or the agent thereof,
which may affect impartiality.
(3) The staff member has an interest in the application for trademark
registration or in the handling of other trademark matters.
Article
8 Where a trademark registration application and other relevant documents
are filed in the form of data message as mentioned in Article 22 of the Trademark Law, they shall be filed
on the Internet in accordance with the rules of the Trademark Office or the
Trademark Appeal Board.
Article
9 Except under the circumstances described in Article 18 of this
Regulation, the date of submitting documents or materials by a party to the
Trademark Office or the Trademark Appeal Board shall be the date of delivery if
they are directly delivered by the party to the latter; the postmark date when
the mail is sent if they are posted; or the day when the Trademark Office or
the Trademark Appeal Board actually receives them if the postmark date is
unclear or there is no postmark, unless the party is able to provide evidence
on the actual postmark date. If they are delivered through an express delivery
enterprise other than a postal enterprise, the date of submission shall be the
day when the package is accepted by the express delivery enterprise; or the day
when they are actually received by the Trademark Office or the Trademark Appeal
Board if the date of acceptance of the package is not clear, unless the party
is able to provide evidence on the actual date of acceptance of the package. If
they are submitted in the form of data message, the date of submission shall be
the day when the data message enters the electronic system of the Trademark
Office or the Trademark Appeal Board.
When posting documents to the Trademark Office or the Trademark Appeal Board, a
party shall use registered mail.
For documents submitted by a party to the Trademark Office or the Trademark
Appeal Board in writing, the documents recorded in the archives of the
Trademark Office or the Trademark Appeal Board shall prevail; and, for
documents submitted in the form of data message, the documents recorded in the
database of the Trademark Office or the Trademark Appeal Board shall prevail,
unless the party has evidence to prove that the records in the archives or
database of the Trademark Office or the Trademark Appeal Board are erroneous.
Article
10 The documents of the Trademark Office or the Trademark Appeal Board may
be served upon a party by post, by direct delivery, in the form of data
message, or by any other means. If the form of data message is adopted, the
prior consent of the party shall be obtained. If the party has appointed a
trademark agency for this purpose, the documents shall be deemed to have been
served upon the party once they are served upon the trademark agency.
The date of service of the documents of the Trademark Office or the Trademark
Appeal Board upon a party shall be the postmark date when they are received by
the party if they are served by post; the documents shall be deemed to have
been served upon the party after 15 days from the day when they are posted if
the postmark date is unclear or there is no postmark, unless the party is able
to prove the actual date of receipt; the date of service shall be the date of
delivery if the documents are directly delivered by the Trademark Office or the
Trademark Appeal Board upon the party; the documents shall be deemed to have
been served upon the party after 15 days from the day when they are sent if the
documents are served in the form of data message, unless the party is able to
prove the date when the documents enter the electronic system of the party. If
it is impossible to serve the documents by any of the aforesaid methods, they
may be served by publication, and the documents shall be deemed to have been
served upon the party after 30 days from the day when they are published.
Article
11 The following periods of time shall not be counted in the time limit
for the examination or the trial of trademark matters:
(1) The time of serving the documents of the Trademark Office or the Trademark
Appeal Board by publication.
(2) The time for a party to provide additional evidence or supplement and
correct documents and the time for submitting a new statement of defense as a
result of the change of a party.
(3) The time needed for submitting evidence on use, negotiating, and drawing
lots, when there are applications submitted on the same day for registration of
the same trademark.
(4) The time of waiting for the determination of the right of priority.
(5) The time of waiting for the results of another case involving prior rights
upon request of the applicant in the process of examination or trial.
Article
12 Except under the circumstances described in paragraph 2 hereof, the
commencing date of any time limit as mentioned in the Trademark Law or this Regulation
shall not be included in the time limit. If the time limit is calculated by
year or month, it shall expire on the corresponding day of the last month; if
the corresponding day does not exist in the last month, it shall expire on the
last day of the last month; or if the expiry date of a time limit falls on a
holiday, the time limit shall expire on the first working day after the
holiday.
The period of validity of a registered trademark as mentioned in Articles 39 and 40 of the Trademark Law shall commence from a
statutory date, and expire on the day before the corresponding day in the last
month of the period of validity. If the corresponding day does not exist in the
last month, the last day of the last month shall be the expiry date.
Go Top
Chapter
II Applications for Trademark Registration
Article 13 An application for
trademark registration shall be prepared according to the published table of
classification of commodities and services. For each trademark registration
application, the applicant shall submit to the Trademark Office one copy of the
Application Form for Trademark Registration and one copy of the trademark
design; and, if it applies for registering a color combination or colored
design as a trademark, the colored design and one copy of the black and white
design; or if no color is specified, the black and white design.
The trademark designs shall be clear, easy to paste, printed on clean and
durable paper or recorded in photographs, and in a size of not less than five
centimeters but not more than ten centimeters in length and width.
Where an application is filed for registering a three-dimensional symbol as a
trademark, it shall be stated in the application, the instructions for use of
the trademark shall be provided, and a design including, at a minimum, the
three-view drawing shall be submitted based on which the three-dimensional
shape could be determined.
Where an application is filed for registering a combination of colors as a
trademark, it shall be stated in the application, and the instructions for use
of the trademark shall be provided.
Where an application is filed for registering a sound trademark, it shall be
stated in the application, a sound sample that meets the prescribed
requirements shall be submitted, a description of the sound mark to be
registered shall be provided, and the instructions for use of the trademark shall
be provided. In addition to a textual description of the sound mark, the stave
or numbered musical notation shall be used to describe the sound to be
registered as a trademark; or if it is impossible to describe the sound mark
with the stave or numbered musical notation, a textual description shall be
provided. The trademark description shall be consistent with the sound sample.
Where an application is filed for registering a collective trademark or a
certification mark, it shall be stated in the application, and a certification
document on the eligibility of the applicant and the use management rules shall
be submitted.
Where a trademark is in a foreign language or involves a foreign language, its
meaning shall be explained.
Article
14 To apply for trademark registration, an applicant shall submit its
identity certificate. The name of the trademark registration applicant shall be
identical with that indicated in the certificate submitted.
The preceding paragraph on an applicant's submission of its identity
certificate shall apply to the handling of other trademark matters with the
Trademark Office such as modification, assignment, renewal, opposition, and
cancellation.
Article
15 The name of the goods or service shall be entered according to the
class number and name indicated in the table of classification of commodities
and services. Where the name of the goods or service is not included in the
table of classification of goods and services, a description of the goods or
service shall be attached.
The trademark registration applications and other relevant documents submitted
in paper form shall be typewritten or printed.
Paragraph 2 hereof shall apply to the handling of other trademark matters.
Article
16 To jointly apply for registration of the same trademark or to handle
other matters concerning a co-owned trademark, a representative shall be
designated in the application. If no representative is designated, the first
applicant named in the application shall be the representative.
The documents of the Trademark Office and the Trademark Appeal Board shall be
served upon the representative.
Article
17 Where an applicant changes its name, address, agent, or document
recipient, or removes any of the designated goods, it shall undergo the
modification procedure with the Trademark Office.
Where an applicant transfers its application for trademark registration, it
shall undergo the transfer procedure with the Trademark Office.
Article
18 The date of application for trademark registration shall be the day when
the Trademark Office receives the application documents.
If all the application materials are submitted, the application documents are
completed as required, and fees are paid, the Trademark Office shall accept the
application, and notify the applicant in writing of the acceptance; or, if not
all the application materials are submitted, any application document is not
completed as required, or fees are not paid, the Trademark Office shall reject
the application, and notify the applicant in writing of the rejection and the
reasons for the rejection. If basically all the application materials are
submitted or the application documents basically satisfy the relevant
requirements, but any supplement or correction is needed, the Trademark Office
shall notify the applicant of the supplement or correction, and require the
applicant to make the designated supplement or correction and send the
supplemented or corrected application documents back to the Trademark Office
within 30 days of receipt of the notice. If the application documents are
supplemented or corrected and sent back to the Trademark Office within the
prescribed time limit, the original date of application shall be maintained; or
if the applicant fails to make the supplement or correction within the prescribed
time limit or as required, the Trademark office shall reject the application,
and notify the applicant in writing of the rejection.
The conditions for accepting an application in paragraph 2 hereof shall apply
to the handling of other trademark matters.
Article
19 Where two or more applicants apply for registration of identical or
similar trademarks on identical or similar goods on the same day, each
applicant shall submit evidence on its prior use of the trademark before
application within 30 days of receipt of a notice from the Trademark Office. If
the applicants use the trademarks on the same day or none of them has ever used
the trademarks, the applicants may, within 30 days of receipt of a notice from
the Trademark Office, conduct consultation, and submit their written agreement
to the Trademark Office; or, if they are unwilling to conduct consultation or
such consultation fails, the Trademark Office shall notify the applicants that
one applicant shall be determined by drawing lots and the registration
applications of others shall be dismissed. Where any applicant fails to draw
lots after being notified by the Trademark Office, the applicant shall be
deemed to have forgone its application, and the Trademark Office shall notify
the applicant in writing of it.
Article
20 To claim the right of priority under Article 25 of the Trademark Law, the duplicates of
the application documents for trademark registration filed by the applicant for
the first time shall be certified by the trademark authority accepting the
application, and state the application date and number.
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Chapter
III Examination of Trademark Registration Applications
Article 21 The Trademark Office
shall, according to the relevant provisions of the Trademark Law and this Regulation,
examine a trademark registration application accepted, and grant an initial
approval to the application and publish the initial approval if the application
meets the prescribed requirements or if the application only meets the
prescribed requirements for registration of the trademark on a part of the
designated goods. If the application fails to meet the prescribed requirements
or the application only fails to meet the prescribed requirements for
registration of the trademark on a part of the designated goods, the Trademark
Office shall refuse the application or refuse the application for registration
of the trademark on the part of the designated goods, and notify the applicant
in writing of the refusal and the reasons for the refusal.
Article
22 Where the Trademark Office refuses an application for trademark
registration on a part of the designated goods, the applicant may file a
divisional application for the part which has been granted initial approval,
and the date of application of the divisional application shall be the same as
that of the parent application.
If necessary, the applicant shall file an application for division with the
Trademark Office within 15 days of receipt of the Notice on Partial Refusal of
a Trademark Registration Application.
After receiving the application for division, the Trademark Office shall divide
the original application into two pieces, assign a new application number to
the divisional application which has been granted initial approval, and publish
it.
Article
23 According to the provision of Article 29 of the Trademark Law, where the Trademark
Office deems it necessary to require an explanation or amendment of a trademark
registration application, the applicant shall provide an explanation or
amendment within 15 days of receipt of a notice from the Trademark Office.
Article
24 Where an opposition is filed against a trademark which has been
initially approved and published by the Trademark Office, the opponent shall
submit the following opposition materials in duplicate to the Trademark Office
by distinguishing the original from the duplicate:
(1) A completed application form for trademark opposition.
(2) The opponent's identification.
(3) Proof on the opponent's capacity as a prior right holder or an interested
party, if the opposition is filed on the ground that paragraph 2 or 3 of Article 13, Article 15, paragraph 1 of Article 16, Article 30, Article 31, or Article 32 of the Trademark Law has been violated.
The application form for trademark opposition shall have a specific claim and
factual basis, to which the relevant evidential materials shall be attached.
Article
25 After receiving an application form for trademark opposition, if it is
determined upon examination that the application satisfies the conditions for
acceptance, the Trademark Office shall accept it, and issue a notice of
acceptance to the applicant.
Article
26 Under any of the following circumstances, the Trademark Office shall
reject an application for trademark opposition, and notify the applicant in
writing of the rejection and the reasons for the rejection:
(1) The opposition application is not filed within the statutory time limit.
(2) The opponent's capacity or the ground of opposition fails to satisfy the
provision of Article 33 of the Trademark Law.
(3) The opposition lacks specific grounds, facts, or legal basis.
(4) The opponent files again an opposition to the same trademark on the basis
of the same ground, facts and legal basis.
Article
27 The Trademark Office shall deliver the duplicates of the trademark
opposition materials to the party against whom the opposition is filed, and
require the party to submit a defense within 30 days of receipt of the
duplicates of the trademark opposition materials. The party's failure to submit
such a defense shall not affect the decision of the Trademark Office.
Where a party needs to provide additional evidential materials after filing an
application for trademark opposition or submitting a defense, the party shall
state it in the application or defense, and provide the same within three
months after the application for trademark opposition or the defense is
submitted. A party that fails to submit the same upon expiry of the prescribed
time limit shall be deemed to have forgone the provision of additional evidential
materials. However, for evidence which comes into existence after the expiry of
the prescribed time limit or evidence which the party fails to submit within
the prescribed time limit for good reasons, if it is submitted after the expiry
of the prescribed time limit, the Trademark Office may admit such evidence
after it is delivered to and cross-examined by the opposing party.
Article
28 A decision to deny registration as mentioned in paragraph 3 of Article 35 and paragraph 1 of Article 36 of the Trademark Law includes a decision
to deny registration on a part of the designated goods.
For a trademark to which an opposition has been filed, if its registration has
been published before the Trademark Office makes a decision to grant or deny
registration, the publication shall be cancelled. If the registration is
granted after the opposition is dismissed upon examination, its registration
shall be published anew after the decision to grant registration comes into
force.
Article
29 To apply for correction under Article 38 of the Trademark Law, a trademark
registration applicant or a trademark registrant shall submit an application
for correction to the Trademark Office. If the application satisfies the
conditions for correction, the Trademark Office shall approve it and correct
the relevant content; or if the application fails to satisfy the conditions for
correction, the Trademark Office shall disapprove it, and notify the applicant
in writing of the disapproval and the reasons for the disapproval.
Where a trademark of which an initial approval or the registration has been
published is corrected, the correction shall be published.
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Chapter
IV Modification, Assignment and Renewal of Registered Trademarks
Article 30 Where the name or
address of a trademark registrant or any other registered matter needs to be
modified, an application for modification shall be filed with the Trademark
Office. To modify the name of a trademark registrant, a modification
certificate issued by the relevant registration authority shall also be
submitted. In the case of approval, the Trademark Office shall issue a
corresponding certificate to the trademark registrant, and publish it; or in
the case of disapproval, the Trademark Office shall notify the applicant in
writing of the disapproval and the reasons for the disapproval.
To modify the name or address of a trademark registrant, the trademark
registrant shall concurrently modify all its registered trademarks; otherwise,
the Trademark Office shall notify it of making correction within a prescribed
time limit; and if the trademark registrant fails to do so, the trademark
registrant shall be deemed to have forgone the application for modification,
and the Trademark Office shall notify the applicant of it in writing.
To modify the name or address of a trademark registrant, the trademark
registrant shall concurrently modify all its registered trademarks; otherwise,
the Trademark Office shall notify it of making correction within a prescribed
time limit; and if the trademark registrant fails to do so, the trademark
registrant shall be deemed to have forgone the application for modification,
and the Trademark Office shall notify the applicant of it in writing.
Article
31 Where a registered trademark is assigned, the assignor and the assignee
shall file an application for assignment of the registered trademark with the
Trademark Office. The assignor and the assignee shall jointly undergo the
application procedure for such assignment. If the application is approved, the
Trademark Office shall issue a corresponding certificate to the assignee, and
publish it.
Where a trademark registrant fails to concurrently assign all its registered
trademarks identical with or similar to the registered trademark to be assigned
by it on identical or similar goods, the Trademark Office shall notify it of
making correction within a prescribed time limit; and if the trademark
registrant fails to do so, the trademark registrant shall be deemed to have
forgone the application for assignment, and the Trademark Office shall notify
the applicant of it in writing.
Where a trademark registrant fails to concurrently assign all its registered
trademarks identical with or similar to the registered trademark to be assigned
by it on identical or similar goods, the Trademark Office shall notify it of
making correction within a prescribed time limit; and if the trademark
registrant fails to do so, the trademark registrant shall be deemed to have
forgone the application for assignment, and the Trademark Office shall notify
the applicant of it in writing.
Article
32 Where the right to exclusively use a registered trademark is
transferred for inheritance or any other reason other than assignment, the
party acquiring the right to exclusively use the registered trademark shall
undergo the procedure for transfer of the right to exclusively use the
registered trademark with the Trademark Office on the basis of the relevant certification
or legal document.
Where the right to exclusively use a registered trademark is transferred, all
the registered trademarks of the right holder identical with or similar to the
registered trademark to be transferred on identical or similar goods shall be
transferred concurrently; otherwise, the Trademark Office shall notify the
applicant of making correction within a prescribed time limit; and if the
applicant fails to do so, the applicant shall be deemed to have forgone the
application for transfer, and the Trademark Office shall notify the applicant
of it in writing.
If an application for transfer of the right to exclusively use a registered
trademark is approved, it shall be published, and the party acquiring the right
to exclusively use the registered trademark through the transfer shall own the
right to exclusively use the registered trademark from the date of publication.
Article
33 Where the registration of a trademark needs to be renewed, an
application for renewal of trademark registration shall be submitted to the
Trademark Office. If the application is approved, the Trademark Office shall
issue a corresponding certificate, and publish it.
Go Top
Chapter
V International Registration of Trademarks
Article 34 The international
registration of trademarks as mentioned in Article 21 of the Trademark Law means the
international registration of trademarks under the Madrid system in accordance
with the Madrid Agreement Concerning the International
Registration of Marks (hereinafter referred to as the “Madrid
Agreement”), the Protocol Relating to the Madrid Agreement Concerning
the International Registration of Trademarks (hereinafter
referred to as the “Protocol”), and the Common Regulations under the Madrid Agreement Concerning the International
Registration of Marks and the Protocol Relating to that
Agreement.
Applications for international registration of trademarks under the Madrid
system include applications for international registration of marks with China
as the country of origin, applications for territorial extension to China, and
other related applications.
Applications for international registration of trademarks under the Madrid
system include applications for international registration of marks with China
as the country of origin, applications for territorial extension to China, and
other related applications.
Article
35 Whoever applies for international registration of a trademark with
China as the country of origin shall have a genuine and valid business place in
China, have a domicile in China, or have the nationality of China.
Article
36 An applicant whose trademark has been registered with the Trademark
Office may, if the provision of Article 35 of this Regulation is satisfied,
apply for international registration of the trademark in accordance with the
Madrid Agreement.
An applicant whose trademark has been registered with the Trademark Office or
whose application for trademark registration has been submitted to and accepted
by the Trademark Office may, if the provision of Article 35 of this Regulation
is satisfied, apply for international registration of the trademark in
accordance with the Protocol.
Article
37 Whoever applies for international registration of a trademark with
China as the country of origin shall apply to the International Bureau of the
World Intellectual Property Organization (hereinafter referred to as the
“International Bureau”) through the Trademark Office.
Whoever applies for subsequent designation, renunciation, or cancellation
concerning the international registration of a trademark with China as the
country of origin, if it is related to the Madrid Agreement, shall apply to the
International Bureau through the Trademark Office. Whoever applies for the
assignment, limitation, modification, or renewal concerning the international
registration of a trademark with China as the country of origin, if it is
related to the Madrid Agreement, may apply to the International Bureau through
the Trademark Office or directly apply to the International Bureau.
Whoever applies for the subsequent designation, assignment, limitation,
renunciation, cancellation, modification, or renewal concerning the
international registration of a trademark with China as the country of origin,
if it is related to the Protocol, may apply to the International Bureau through
the Trademark Office or directly apply to the International Bureau.
Whoever applies for subsequent designation, renunciation, or cancellation
concerning the international registration of a trademark with China as the
country of origin, if it is related to the Madrid Agreement, shall apply to the
International Bureau through the Trademark Office. Whoever applies for the
assignment, limitation, modification, or renewal concerning the international
registration of a trademark with China as the country of origin, if it is
related to the Madrid Agreement, may apply to the International Bureau through
the Trademark Office or directly apply to the International Bureau.
Whoever applies for the subsequent designation, assignment, limitation,
renunciation, cancellation, modification, or renewal concerning the
international registration of a trademark with China as the country of origin,
if it is related to the Protocol, may apply to the International Bureau through
the Trademark Office or directly apply to the International Bureau.
Article
38 To apply to the International Bureau through the Trademark Office for
international registration of trademarks or other matters, application forms
and other relevant materials that satisfy the requirements of the International
Bureau and the Trademark Office shall be submitted.
Article
39 The goods or services designated in an application for international
registration of a trademark may not go beyond the scope of goods or services in
the domestic basic application or basic registration.
Article
40 If not all the application materials for international registration of
a trademark are submitted or any application document is not completed as
required, the Trademark Office shall reject the application, and the date of
application shall not be retained.
If basically all the application materials are submitted or the application
documents basically satisfy the relevant requirements, but any supplement or
correction is needed, the applicant shall make the supplement or correction
within 30 days of receipt of the notice of supplement or correction; and if the
applicant fails to do so, the Trademark office shall reject the application,
and notify the applicant in writing of the rejection.
Article
41 To apply to the International Bureau through the Trademark Office for
international registration of trademarks or other matters, fees shall be paid
as required.
An applicant shall pay fees to the Trademark Office within 15 days of receipt
of the payment notice sent by the Trademark Office. If the applicant fails to
do so, the Trademark Office shall reject the application, and notify the
applicant in writing of the rejection.
Article
42 The Trademark Office shall, within the time limit for refusal as set
forth in the Madrid Agreement or the Protocol (hereinafter referred to as the
“time limit for refusal”), examine an application for territorial extension to
China according to the relevant provisions of the Trademark Law and this Regulation,
make a decision, and notify the International Bureau. If the Trademark Office
fails to send a notice of total or partial refusal within the time limit for
refusal, the application shall be deemed to have been approved.
Article
43 Where an applicant for territorial extension to China requests
protection of a three-dimensional symbol, a combination of colors, or a sound
mark as a trademark or protection of a collective or certification mark, the
applicant shall, within three months from the date when the trademark is
entered into the International Register of the International Bureau, submit the
relevant materials as listed in Article 13 of this Regulation to the Trademark
Office through a legally formed trademark agency. If the required materials are
not submitted within the prescribed time limit, the Trademark Office shall
refuse the application for territorial extension.
Article
44 The World Intellectual Property Organization publishes matters related
to the international registration of trademarks, and the Trademark Office does
not publish them additionally.
Article
45 To an application for territorial extension to China, an opponent that
satisfies the provision of Article 33 of the Trademark Law may file an
opposition with the Trademark Office within three months from the first day of
the next month after the World Intellectual Property Organization's “Gazette of
International Marks” is published.
The Trademark Office shall notify the International Bureau of any opposition in
the form of a decision of refusal.
The applicant may submit a defense within 30 days of receipt of the notice of
refusal forwarded by the International Bureau. The defense and the relevant
evidence shall be submitted to the Trademark Office through a legally formed
trademark agency.
Article
46 The period of validity of an internationally registered trademark
protected in China shall commence from the date of international registration
or subsequent designation. Before the period of validity expires, the
registrant may apply to the International Bureau for renewal, and a grace
period of six months may be granted if the registrant fails to apply for
renewal within the period of validity. After receiving a notice of approval of
renewal from the International Bureau, the Trademark Office shall examine the
application according to the law. If a notice of non-renewal is received from
the International Bureau, the Trademark Office shall cancel the internationally
registered trademark.
Article
47 For assignment of an internationally registered trademark under a
granted application for territorial extension to China, the assignee shall have
a genuine and valid business place in a contracting party, have a domicile in a
contracting party, or have the nationality of a contracting party.
If the assignor fails to concurrently assign all its trademarks identical with
or similar to the internationally registered trademark on identical or similar
goods or services, the Trademark Office shall notify the registrant to make
correction within three months of receipt of the notice. If the registrant
fails to do so, or the assignment tends to cause any confusion or have any
other adverse impact, the Trademark Office shall make a decision that the
assignment is invalid in China, and make a declaration to the International
Bureau.
Article
48 To limit the designated goods or services under a granted application
for territorial extension to China, if the designated goods or services after
limitation fail to comply with the relevant requirements of China for the
classification of goods or services or exceed the original scope of designated
goods or services, the Trademark Office shall make a decision that the
limitation is invalid in China, and make a declaration to the International
Bureau.
Article
49 An application for cancelling an internationally registered trademark
under paragraph 2 of Article 49 of the Trademark Law shall be filed with
the Trademark Office after three years from the expiry date of the time limit
for refusal of the application for international registration of the trademark.
If the application for international registration of the trademark is still
under the procedure for refusal review or opposition when the time limit for
refusal expires, an application shall be filed with the Trademark Office after
three years from the day when the decision to grant registration made by the
Trademark Office or the Trademark Appeal Board becomes effective.
An application for declaring the invalidation of an international registered
trademark under paragraph 1 of Article 44 of the Trademark Law shall be filed with
the Trademark Appeal Board upon expiry of the time limit for refusal of the
application for international registration of the trademark. If the application
for international registration of the trademark is still under the procedure
for refusal review or opposition when the time limit for refusal expires, an
application shall be filed with the Trademark Appeal Board after the decision
to grant registration made by the Trademark Office or the Trademark Appeal
Board becomes effective.
An application for declaring the invalidation of an international registered
trademark under paragraph 1 of Article 45 of the Trademark Law shall be filed with
the Trademark Appeal Board within five years from the expiry date of the time
limit for refusal of the application for international registration of the
trademark. If the application for international registration of the trademark
is still under the procedure for refusal review or opposition when the time
limit for refusal expires, an application shall be filed with the Trademark
Appeal Board within five years after the decision to grant registration made by
the Trademark Office or the Trademark Appeal Board becomes effective. If
registration is acquired in bad faith, the holder of a well-known trademark is
not subject to the five-year time limit.
Article
50 The following provisions of the Trademark Law and this Regulation
are not applicable to the handling of matters concerning the international
registration of trademarks:
(1) Article 28 and paragraph 1 of Article 35 of the Trademark Law regarding the time
limits for examination and trial.
(2) Article 22 and paragraph 2 of Article 30 of this Regulation.
(3) Article 42 of the Trademark Law and Article 31 of
this Regulation regarding trademark assignment that requires the assigner and
the assignee jointly apply and undergo the relevant procedure.
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Chapter
VI Trademark Review and Adjudication
Article 51 Trademark review and
adjudication means that the Trademark Appeal Board tries trademark disputes in
accordance with the provisions of Articles 34, 35, 44, 45, and 54 of the Trademark Law. To apply to the
Trademark Appeal Board for trademark review and adjudication, a party shall
have specific claims, facts, grounds, and legal basis, and provide
corresponding evidence.
The Trademark Appeal Board shall, based on facts, try cases according to the
law.
Article
52 For a review case against a decision of the Trademark Office to refuse
a trademark registration application, the Trademark Appeal Board shall try it
based on the decision of refusal of the Trademark Office, the facts, grounds,
and claims submitted by the applicant for review, and the factual status at the
time of review.
Where, in trying a review case against a decision of the Trademark Office to
refuse a trademark registration application, the Trademark Appeal Board
discovers that the trademark to be registered is in violation of the provision
of Article 10, Article 11, Article 12, or paragraph 1 of Article 16 of the Trademark Law but the Trademark
Office fails to make a decision of refusal under the provision, the Trademark
Appeal Board may make a review decision to refuse the application under the
provision. Before making the review decision, the Trademark Appeal Board shall
hear the opinion of the applicant.
Article
53 For a review case against a decision of the Trademark Office to deny
registration, the Trademark Appeal Board shall try it based on the decision of
the Trademark Office to deny registration, the facts, grounds, and claims
submitted by the applicant for review, and the opinion of the opponent in the
original procedure.
In trying a review case against a decision of the Trademark Office to deny
registration, the Trademark Appeal Board shall notify the opponent in the
original procedure to participate and provide an opinion. If the opponent's
opinion has a substantial impact on the trial result of the case, the opinion
may serve as a basis of the trial. The opponent's non-participation or refusal
to provide an opinion shall not affect the trial of the case.
Article
54 For a case where a party petitions the Trademark Appeal Board to
declare invalidation of a registered trademark under Article 44 or 45 of the Trademark Law, the Trademark Appeal
Board shall try it based on the facts, grounds, and claims in the application
and defense submitted by the parties.
Article
55 For a review case against a decision of the Trademark Office to declare
invalidation of a registered trademark under paragraph 1 of Article 44 of the Trademark Law, the Trademark Appeal
Board shall try it based on the decision of the Trademark Office and the facts,
grounds, and claims submitted by the applicant for review.
Article
56 For a review case against a decision of the Trademark Office to cancel
or sustain a registered trademark under Article 49 of the Trademark Law, the Trademark Appeal
Board shall try it based on the decision of the Trademark Office and the facts,
grounds, and claims submitted by the applicant for review.
Article
57 Whoever applies for trademark review and adjudication shall submit an
application to the Trademark Appeal Board, as well as the duplicates thereof
according to the number of the respondents. To apply for review based on a
written decision of the Trademark Office, the duplicates thereof shall also be
submitted.
After receipt of the application, if it is determined upon examination that the
application satisfies the conditions for acceptance, the Trademark Appeal Board
shall accept it; or if it fails to satisfy the conditions for acceptance, the
Trademark Appeal Board shall reject it, and notify the applicant in writing of
the rejection and the reasons for the rejection. If any supplement or
correction is needed, the Trademark Appeal Board shall notify the applicant of
making the supplement or correction within 30 days of receipt of the notice. If
the application still fails to satisfy the relevant provisions after supplement
or correction, the Trademark Appeal Board shall reject it, and notify the
applicant in writing of the rejection and the reasons for the rejection; or if
the applicant fails to make the supplement or correction with the prescribed
time limit, the application shall be deemed to have been withdrawn, and the
Trademark Appeal Board shall notify the applicant in writing of it.
Where, after accepting an application for trademark review, the Trademark Appeal
Board discovers that the application fails to satisfy the conditions for
acceptance, it shall refuse the application, and notify the applicant in
writing of the refusal and the reasons for the refusal.
Article
58 After accepting an application for trademark review and adjudication,
the Trademark Appeal Board shall deliver a duplicate of the application to the
opposing party in a timely manner, and require it to submit a defense within 30
days of receipt of the duplicate. The opposing party's failure to submit a
defense within the prescribed time limit shall not affect the review and
adjudication of the Trademark Appeal Board.
Article
59 Where a party needs to provide additional evidential materials after
applying for review and adjudication or submitting a defense, it shall state it
in the application or defense, and submit the same within three months after
the application or defense is submitted. A party that fails to submit the same
upon expiry of the prescribed time limit shall be deemed to have forgone the
provision of additional relevant evidential materials. However, for evidence
which comes into existence after the expiry of the prescribed time limit or
evidence which the party fails to submit within the prescribed time limit for
good reasons, if it is submitted after the expiry of the prescribed time limit,
the Trademark Appeal Board may admit such evidence after it is delivered to and
cross-examined by the opposing party.
Article
60 At the request of the applicant or according to the actual needs, the
Trademark Appeal Board may decide to conduct an oral hearing of an application
for review and adjudication.
Where the Trademark Appeal Board decides to conduct an oral hearing of an
application for review and adjudication, it shall notify the parties of the
date and location of the oral hearing and the reviewers 15 days before the oral
hearing. A party shall provide a reply within the time limit specified in the
notice.
The applicant's failure to provide a reply or participate in the oral hearing
shall be deemed to have withdrawn the application for review and adjudication,
and the Trademark Appeal Board shall notify the applicant in writing of it. If
the respondent neither provides a reply nor participates in the oral hearing,
the Trademark Appeal Board may make a decision by default.
Article
61 Before the Trademark Appeal Board makes a decision or ruling, an
applicant for review and adjudication may file a written request with the
Trademark Appeal Board for withdrawing the application with an explanation of
the reasons, and if the Trademark Appeal Board grants the request, the review
and adjudication procedure shall terminate.
Article
62 After withdrawing its application for trademark review and
adjudication, an applicant may not apply for review and adjudication again
based on the same facts and grounds. If the Trademark Appeal Board has made a
ruling or decision on an application for trademark review and adjudication, no
one may apply for review and adjudication again based on the same facts and grounds,
except for an application to the Trademark Appeal Board for declaring
invalidation of a registered trademark after the registration of the trademark
is granted under the review procedure for a decision to deny registration.
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Chapter
VII Trademark Use Management
Article 63 In the use of a
registered trademark, the words “registered trademark” or a registration symbol
may be indicated on goods, packages of goods, specifications, or other
attachments.
Registration symbols include the circled Chinese character “zhu” (注) and the
circled capital letter “R” (?). When a registration symbol is used, it shall be
displayed by immediately following the trademark in a superscript or subscript
style.
Registration symbols include the circled Chinese character “zhu” (注) and the
circled capital letter “R” (?). When a registration symbol is used, it shall be
displayed by immediately following the trademark in a superscript or subscript
style.
Article
64 Where the Trademark Registration Certificate is lost or damaged, an
application for replacement of the Trademark Registration Certificate shall be
submitted to the Trademark Office. If it is lost, a declaration of loss shall
be published on the Trademark Gazette. If it is damaged, it shall be
surrendered to the Trademark Office when the application for replacement is
submitted.
To request the Trademark Office to reissue a certificate on the modification,
assignment, or renewal of a trademark, issue a trademark registration
certificate or issue a certificate on the right of priority, the trademark
registrant shall submit a corresponding written request to the Trademark
Office. If the request satisfies the prescribed requirements, the Trademark
Office shall issue a corresponding certificate; otherwise, the Trademark Office
shall deny it, and notify the applicant of the denial and the reasons for
denial.
Whoever forges or tampers with the Trademark Registration Certificate or any
other trademark certification document shall be subject to criminal liability
in accordance with the provisions of the Criminal Law regarding the crime of
forging or tampering with certificates of state organs or other crimes.
To request the Trademark Office to reissue a certificate on the modification,
assignment, or renewal of a trademark, issue a trademark registration
certificate or issue a certificate on the right of priority, the trademark
registrant shall submit a corresponding written request to the Trademark
Office. If the request satisfies the prescribed requirements, the Trademark
Office shall issue a corresponding certificate; otherwise, the Trademark Office
shall deny it, and notify the applicant of the denial and the reasons for
denial.
Whoever forges or tampers with the Trademark Registration Certificate or any
other trademark certification document shall be subject to criminal liability
in accordance with the provisions of the Criminal Law regarding the crime of
forging or tampering with certificates of state organs or other crimes.
Article
65 Where a registered trademark becomes a common name of the goods on
which it is approved to be used as described in Article 49 of the Trademark Law, any entity or
individual may apply to the Trademark Office for cancellation of the registered
trademark, and evidential materials shall be attached to the application
submitted. The Trademark Office shall notify the trademark registrant after
accepting the application, and require the registrant to submit a defense
within two months of receipt of the notice. The registrant's failure to provide
the defense within the prescribed time shall not affect the decision of the
Trademark Office.
Article
66 Where a registered trademark has not been used for three consecutive
years without good reasons as described in Article 49 of the Trademark Law, any entity or
individual may apply to the Trademark Office for cancellation of the registered
trademark, and a relevant explanation shall be attached to the application
submitted. The Trademark Office shall notify the trademark registrant after
accepting the application, and require the registrant to submit evidential
materials on use of the registered trademark before the application for
cancellation is submitted or provide good reasons for the cease of use within
two months of receipt of the notice. If the registrant fails to submit evidential
materials on use of the registered trademark within the prescribed time limit
or the submitted evidential materials are invalid and there are no good
reasons, the Trademark Office shall cancel its registered trademark.
The evidential materials on use as mentioned in the preceding paragraph
includes evidential materials on use of the registered trademark by the
trademark registrant and evidential materials on use of the registered
trademark by those licensed by the trademark registrant.
An application for cancelling a registered trademark on the ground that the
registered trademark has not been used for three consecutive years without good
reasons may be filed three years after the date of publication of the
registration of the trademark.
The evidential materials on use as mentioned in the preceding paragraph
includes evidential materials on use of the registered trademark by the
trademark registrant and evidential materials on use of the registered
trademark by those licensed by the trademark registrant.
An application for cancelling a registered trademark on the ground that the
registered trademark has not been used for three consecutive years without good
reasons may be filed three years after the date of publication of the
registration of the trademark.
Article
67 The following circumstances are the good reasons as mentioned in Article 49 of the Trademark Law:
(1) Force majeure.
(2) Restrictions imposed by government policies.
(3) Bankruptcy liquidation.
(4) Other good reasons for which the trademark registrant is not responsible.
Article
68 Where the grounds based on which the Trademark Office or the Trademark
Appeal Board cancels a registered trademark or declares invalidation of a
registered trademark only involve a part of the designated goods, the
registration used on this part of the designated goods shall be cancelled or
declared invalid.
Article
69 To license others to use its registered trademark, the licensor shall
undergo the recordation procedure and file the recordation materials with the
Trademark Office within the term of the licensing contract. The recordation
materials shall specify the licensor, the licensee, the term of license, and
the scope of goods or services on which the use of the registered trademark is
licensed, among others.
Article
70 To pledge the right to exclusively use a registered trademark, the
pledger and the pledgee shall enter into a written pledge contract and jointly
apply to the Trademark Office for pledge registration, and the Trademark Office
shall publish it.
Article
71 For a violation of the provision of paragraph 2 of Article 43 of the Trademark Law, the administrative
department for industry and commerce shall order the violator to make
correction within a prescribed time limit; if the violator fails to do so,
order it to stop selling; and if the violator refuses to stop selling, impose a
fine of not more than 100,000 yuan on the violator.
Article
72 To request well-known trademark protection under Article 13 of the Trademark Law, a trademark holder
may file a request with the administrative department for industry and
commerce. If the trademark has been determined by the Trademark Office as a
well-known trademark under Article 14 of the Trademark Law, the administrative
department for industry and commerce shall issue an order of desisting from
using the trademark in violation of Article 13 of the Trademark Law, and confiscate and
destroy all illegally used labels of the trademark or, if it is difficult to separate
the labels from goods, confiscate and destroy both the labels and the goods.
Article
73 To voluntarily apply for cancelling its registered trademark or
cancelling the registration of its trademark on a part of the designated goods,
a trademark registrant shall file an application for voluntary cancellation of
trademark with the Trademark Office, and surrender the original Trademark
Registration Certificate.
Where a trademark registrant's application for voluntarily cancelling its
registered trademark or cancelling the registration of its trademark on a part
of the designated goods is granted by the Trademark office, the right to
exclusively use the registered trademark or effect of the right to exclusively
use the registered trademark on the part of the designated goods shall
terminate from the day when the Trademark Office receives the application for
voluntary cancellation.
Article
74 Where a registered trademark is cancelled or is voluntarily cancelled
under Article 73 of this Regulation, the original Trademark Registration
Certificate shall be invalidated, which shall be published. If the registration
of the trademark on a part of the designated goods is cancelled, or the
trademark registrant voluntarily applies for cancelling the registration of its
trademark on a part of the designated goods, the Trademark Registration
Certificate shall be reissued upon examination, which shall be published.
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Chapter
VIII Protection of the Right to Exclusively Use a Registered Trademark
Article 75 The provision of
storage, transportation, mailing, or printing service, a concealment or
business place, or an online commodity trading platform for the purpose of
infringement upon another party's right to exclusively use a registered
trademark shall be within the meaning of providing facilitation as mentioned inArticle 57 (6) of the Trademark Law.
Article
76 The use of a sign identical with or similar to a registered trademark
of any other person on identical or similar goods as the name or decoration of
the goods, which misleads the public, shall be within the meaning of infringing
upon the right to exclusively use a registered trademark as mentioned in Article 57 (2) of the Trademark Law.
Article
77 Any person may file a complaint or report on infringement upon the
right to exclusively use a registered trademark with the administrative department
for industry and commerce.
Article
78 The following factors may be taken into account in the calculation of
the illegal business revenues as mentioned in Article 60 of the Trademark Law:
(1) The sales price of infringing goods.
(2) The marked price of unsold infringing goods.
(3) The actual average sales price of verified infringing goods.
(4) The median market price of genuine goods.
(5) The infringer's business revenues resulting from the infringement.
(6) Other factors enabling the reasonable calculation of the value of infringing
goods.
Article
79 Under the following circumstances, the seller is able to prove that the
goods are legally acquired by it as mentioned in Article 60 of the Trademark Law:
(1) The seller has a supply list and receipts for goods payment to which the
seal of the supplier is legally affixed, as verified or acknowledged by the
supplier.
(2) The seller has a purchase contract entered into with the supplier, as
verified to have been truthfully performed.
(3) The seller has legal invoices on the purchase of goods, and the matters
recorded in the invoices correspond to the goods involved.
(4) The seller is otherwise able to prove that the goods involved are legally
acquired by it.
Article
80 Where a seller of goods infringing the right to exclusively use a
registered trademark without knowledge of such infringement is able to prove
that the goods are legally acquired by it and provide the supplier, the
administrative department for industry and commerce shall order the seller to
stop selling the goods, and notify the administrative department for industry
and commerce at the place where the supplier of the infringing goods is located
of the case.
Article
81 If the ownership of a registered trademark involved in a case is
currently under trial by the Trademark Office or the Trademark Appeal Board or by
a people's court, and the result of the trial may affect the determination of
the nature of the case, it shall be within the meaning of a dispute over the
ownership of the trademark as mentioned in paragraph 3 of Article 62 of the Trademark Law.
Article
82 In the process of investigating a trademark infringement case, the
administrative department for industry and commerce may require the right
holder to identify whether the goods involved in the case were produced by the
right holder or produced under the licensing of the right holder.
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Chapter IX Trademark Agency
Article 83 The trademark agency
business as mentioned in the Trademark Law means that an agent,
as authorized by a client, handles trademark registration application,
trademark review and adjudication or any other trademark matter in the client's
name.
Article
84 The trademark agencies as mentioned in the Trademark Law includes service
institutions registered with the administrative departments for industry and
commerce to engage in trademark agency business and law firms engaging in
trademark agency business.
To provide agency services for trademark matters administered by the Trademark
Office or the Trademark Appeal Board, a trademark agency shall undergo the
recordation procedure with the Trademark Office in accordance with the
following provisions:
(1) The trademark agency shall submit for verification its registration
certificate issued by the administrative department for industry and commerce
or its certificate issued by the justice administrative department on approval
of formation of the law firm, and a photocopy thereof shall be retained by the
Trademark Office.
(2) The basic information on the trademark agency shall be submitted, including
but not limited to its name, domicile, person in charge, and contact
information.
(3) The trademark agency shall submit a list of the names and contact methods
of its trademark agents.
To provide agency services for trademark matters administered by the Trademark
Office or the Trademark Appeal Board, a trademark agency shall undergo the
recordation procedure with the Trademark Office in accordance with the
following provisions:
(1) The trademark agency shall submit for verification its registration
certificate issued by the administrative department for industry and commerce
or its certificate issued by the justice administrative department on approval
of formation of the law firm, and a photocopy thereof shall be retained by the
Trademark Office.
(2) The basic information on the trademark agency shall be submitted, including
but not limited to its name, domicile, person in charge, and contact
information.
Article
85 The trademark agents for the purposes of the Trademark Law are the personnel of
trademark agencies who engage in trademark agency business.
A trademark agent may not represent a client in his or her own name.
Article
88 The following conduct shall be within the meaning of disturbing the
trademark agency market order by other illicit means as mentioned in item (2),
paragraph 1 of Article 68 of the Trademark Law:
(1) Developing trademark agency business by fraud, false publicity, misleading
information, or commercial bribery.
(2) Withholding facts, providing false evidence, or causing others to withhold
facts or provide false evidence by threat or inducement.
(1) Developing trademark agency business by fraud, false publicity, misleading
information, or commercial bribery.
(2) Withholding facts, providing false evidence, or causing others to withhold
facts or provide false evidence by threat or inducement.
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Chapter X Supplementary Provisions
Article 92 Where a service mark in incessant use until July 1, 1993, is identical with or similar to a service mark registered by another party for identical or similar services, it may continue to be used. However, it may not continue to be used if it has not been used for three years or more after July 1, 1993.
Where a trademark in incessant use until the date on which the Trademark Office begins to accept applications for newly-added goods or services is identical with or similar to a trademark registered by another party on goods or services identical with or similar to the newly-added goods or services, it may continue to be used. However, it may not continue to be used if it has not been used for three years or more after the day on which the Trademark Office begins to accept applications for newly-added goods or service.
Article 93 The table of classification of goods and services used for trademark registration shall be developed and published by the Trademark Office.
The formats of documents used to apply for trademark registration or handle other trademark matters shall be developed and published by the Trademark Office and the Trademark Appeal Board.
The review and adjudication rules of the Trademark Appeal Board shall be developed and published by the administrative department for industry and commerce of the State Council.
Article 94 The Trademark Office shall maintain a Trademark Register to record the registered trademarks and other matters related to registration.
Article 95 The Trademark Registration Certificate and related certificates are evidence that the right holder has the right to exclusively use a registered trademark. Registered matters recorded in the Trademark Registration Certificate shall be consistent with the Trademark Register. For any discrepancy between them, the Trademark Register shall prevail, unless there is evidence that the Trademark Register is erroneous.
Article 96 The Trademark Office shall issue a Trademark Gazette to publish the registration of trademarks and other relevant matters.
The Trademark Gazette shall be published in paper or electronic form.
Except for publication of service of process, it shall be deemed that the contents of publication have been known or should have been known by the public by the date of publication.
Article 97 To apply for trademark registration or handle other trademark matters, fees shall be paid. The fee items and rates shall be prescribed by the financial department of the State Council and the price department of the State Council respectively.
Article 98 This Regulation shall come into force on May 1, 2014.
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