Trademark Law of the People’s Republic of China

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.

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 3 Registered trademarks refer to trademarks that are registered with the approval of the trademark office, including trademarks for goods and services, collective trademarks and certification trademarks. The owner of a registered trademark shall enjoy the exclusive right to the use of the trademark, which shall be protected by law.

For purposes of this Law, a collective trademark refers to one that is registered in the name of a group, association, or any other organization for use in business by its members to indicate membership.

For purposes of this Law, a certification trademark refers to one that is controlled by an organization which is capable of exercising supervision over a particular kind of goods or services and that is used by a unit other than the organization or by an individual for its or his goods or services, and is designed to certify the indications of the place of origin, raw materials, mode of manufacture, quality, or other specified properties of the said goods or services.

Particulars pertaining to the registration and administration of collective trademarks and certification trademarks shall be formulated by the administrative department for industry and commerce under the State Council.

Article 4 Any natural person, legal person or other organization that needs to obtain the exclusive right to use a trademark for its goods or services during production and business operations shall apply for trademark registration with the trademark office.

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

Article 5 Two or more natural persons, legal persons, or other organizations may jointly file an application with the trademark office for the registration of one and the same trademark and jointly enjoy and exercise the exclusive right to the use of the

trademark.

Article 6 Where a registered trademark is required to be used for some goods by laws or administrative regulations, an application for trademark registration shall be made. No such goods may be marketed without an approved and registered trademark.

Article 7 The principle of good faith shall be upheld in the application for trademark registration and in the use of trademarks.

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, through the administration of trademarks, put an end to any practice that deceives consumers.

Article 8 Any signs, including words, graphs, letters, numbers, three-dimensional symbols, color combinations, sound or any combination thereof, that are capable of distinguishing the goods of a natural person, legal person or other organization from those of others may be applied for registration as trademarks.

Article 9 A trademark submitted for registration shall bear noticeable characteristics and be readily distinguishable, and it may not conflict with the legitimate rights obtained by others earlier.

A trademark registrant shall have the right to indicate the wording "Registered Trademark" or the sign showing that the trademark is registered.

Article 10 None of the following signs may be used as trademarks:

1. Those identical with or similar to the State name, the national flag, emblem or anthem, the military flag, emblem or songs, or medals of the People’s Republic of China; or those identical with the names or emblems of Central State organs, the names of the specific locations where the Central State organs are seated; or those identical with the names or designs of landmark buildings;
2. Those identical with or similar to the State name, national flag, national emblem or military flag etc., of a foreign country, except with the consent of the government of that country;
3. Those identical with or similar to the name, flag or emblem of an international inter-governmental organization, except with the consent of that organization or except where it is unlikely to mislead the public;
4. Those identical with or similar to an official mark or inspection stamp that indicates control and guarantee, except where authorized;
5. Those identical with or similar to the symbol or name of the Red Cross or the Red Crescent;
6. Those having the nature of discrimination against any nationality;
7. Those that are deceptive and likely to mislead the public in terms of the quality, place of production or other characteristics of the goods; and
8. Those detrimental to socialist ethics or customs, or having other unwholesome influences.

1. Where the mark bears only the generic name, design, or model number of the goods concerned;
2. Where it only directly indicates the quality, principal raw materials, function, use, weight, quantity or other features of the goods; and
3. Signs that otherwise lack any distinctive character.

Any mark mentioned in the preceding paragraph may be registered as a trademark if it has acquired distinctive features through use and is readily distinguishable.

Article 12 No application for registration of a three-dimensional symbol as a trademark may be granted, where the sign merely indicates the shape inherent in the nature of the goods concerned, or it is only dictated by the need to achieve technical effects or the need to give the goods substantive value.

Article 13 A holder of a trademark that is well known by the relevant public may, if he holds that his rights have been infringed upon, request for well-known trademark protection in accordance with this Law.

Where the trademark of an identical or similar kind of goods is a reproduction, imitation, or translation of another person’s well-known trademark not registered in China and is liable to cause public confusion, no application for its registration may be

granted and its use shall be prohibited.

Where the trademark of a different or dissimilar kind of goods is a reproduction, imitation, or translation of another person’s well-known trademark not registered in China and it misleads the public so that the interests of the owner of the registered well-known trademark are likely to be impaired, no application for its registration may be granted and its use shall be prohibited.

Article 14 A well-known trademark shall be recognized as a fact that needs to be ascertained in dealing with a trademark-related case upon request by the party concerned. The following factors shall be taken into consideration in the recognition of a well-known trademark:

1. The recognition degree of the trademark among the relevant public;
2. The duration in which the trademark has been in use;
3. The duration, extent and geographical scope of all publicity operations carried out for the trademark;
4. The records of protection of a well-known trademark provided for the trademark and
5. Other factors making the trademark well-known.

Where the party concerned claims rights according to Article 13 of this Law in a trademark registration review or during the process whereby the administrative department for industry and commerce investigates and deals with a case involving trademark infringement, the trademark office concerned may, based on the need for reviewing or dealing with the case, decide whether or not to recognize the relevant trademark as a well-known one.

Where the party concerned claims rights according to Article 13 of this Law, during the handling of a trademark dispute, the trademark review and adjudication board may, based on the need for handling the cases, decide whether or not to recognize the relevant trademark as a well-known one.

Where the party concerned claims rights according to Article 13 of this Law during the hearing of a civil or administrative case involving a trademark, the people’s court designated by the Supreme People’s Court may, based on the need for trying the case, decide whether or not to recognize the relevant trademark as a well-known one.

No manufacturers and business operators may indicate the words “well-known trademark" upon the goods, the packaging or the containers of the goods, nor may they use the same for advertising, exhibition or other commercial activities.

Article 15 Where an agent or representative, without authorization of the client, seeks to register in its own name the client’s trademark and the client objects, the trademark shall not be registered and its use shall be prohibited.

An application for registering a trademark for the same kind of goods, or similar goods shall not be approved if the trademark under application is identical with or similar to an unregistered trademark already used by another party, the applicant is clearly aware of the existence of the trademark of such another party due to contractual, business or other relationships with the latter other than those prescribed in the preceding paragraph, and such another party raises objections to the trademark registration application in question.

Article 16 Where a trademark bears a geographical indication of the goods when the place indicated is not the origin of the goods in question, thus misleading the public, the trademark shall not be registered and its use shall be prohibited. However, where the registration is obtained in goodwill, it shall remain valid.

The geographical indication mentioned in the preceding paragraph means the origin of the goods the special qualities, credibility or other characteristics of the goods and it is primarily determined by the natural factors or other humanistic factors of the place indicated.

Article 17 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 18 A party may apply for trademark registration or handle trademark-related matters on its own or by entrusting a trademark agency established according to the law.

A foreigner or foreign enterprise shall entrust a trademark agency established according to the law for applying for trademark registration and handling other trademark-related matters in China.

Article 19 Trademark agencies shall uphold the principle of good faith, comply with laws and administrative regulations, apply for trademark registration or deal with other trademark-related matters as entrusted by the principals, and keep confidential

the principals?trade secrets that come to their knowledge during the agency process.

Where a trademark entrusted by a principal for registration application may fall under the circumstances prescribed by this Law under which registration is not allowed, the trademark agency shall explicitly so inform the principal.

A trademark agency shall not accept the entrustment of a principal if it knows or should have known that the trademark entrusted by the principal for registration application falls under any of the circumstances prescribed by Article 15 and Article 32 of this Law.

A trademark agency shall not apply for registration of trademarks other than the ones entrusted to it.

Article 20 The association of trademark agencies shall, pursuant to its articles of association, strictly enforce the conditions for admitting members, and mete out sanctions against the members violating industry self-disciplinary standards. The association of trademark agencies shall publish in time information on the members admitted and the disciplinary sanctions against its members.

Article 21 International trademark registration shall be governed by the systems established by relevant international treaties concluded or acceded to by the People’s Republic of China. The specific measures in this regard shall be formulated by the State Council.

1. Using a trademark that is identical with a registered trademark on the same kind of goods without obtaining licensing from the registrant of the registered trademark;
2. Using a trademark that is similar to a registered trademark on the same kind of goods, or using a trademark that is identical with or similar to the registered trademark on similar goods without obtaining licensing from the registrant of the registered trademark, and is likely to cause confusion
3. Selling goods that infringe on the exclusive right to the use of a registered trademark;
4. Counterfeiting, or making without authorization, representations of another person’s registered trademark, or selling such representations;
5. Altering a registered trademark without permission of its owner and selling goods bearing such an altered trademark on the market;
6. Providing, intentionally, convenience for such acts as infringe upon others?exclusive right of trademark use, to facilitate others to commit infringement on the exclusive right of trademark use
7. Impairing in other manners another person’s exclusive right to the use of its registered trademark.

Article 58 Whoever uses a registered trademark or an unregistered well-known trademark of another party as the trade name in its enterprise name and mislead the public, which constitutes unfair competition, shall be dealt with in accordance with the Anti-unfair Competition Law of the People’s Republic of China.

Article 59 The holder of the exclusive right to use a registered trademark shall have no right to prohibit others from properly using the generic name, graphics or models of a commodity contained in the registered trademark, or such information as directly indicates the quality, main raw materials, functions, purposes, weight, quantity or other features of the commodity, or the names of the geographical locations as contained therein.

The holder of the exclusive right to use a registered trademark that is a three-dimensional symbol shall have no right to prohibit others from properly using such forms as contained in the registered trademark due to the inherent nature of a commodity or the commodity forms necessary for achieving technological effects or the forms that bring substantive value to the commodity as contained therein.

Where, before a trademark registrant applies for registration of a trademark, another party has used a trademark that is of certain influence and is identical with or similar to the registered trademark on the same kind of goods or similar goods, the holder of the exclusive right to use the registered trademark shall have no right to prohibit the said party from continued use of the trademark within the original scope of use, however, the holder may require the latter to add a proper mark for distinguishment.

Article 60 A dispute that arises from an acts infringing upon the exclusive right to use a registered trademark prescribed in Article 57 of this Law shall be settled by the parties concerned through consultation. Where the parties concerned are unwilling to engage in consultation or a consultation has failed, the trademark registrant or an interested party may bring a lawsuit to the people’s court, or request the relevant administrative department for industry and commerce to address the dispute.

When addressing the dispute, if the administrative department for industry and commerce is of the opinion that the infringement is established, it shall order the relevant party to immediately cease the infringing acts, and shall confiscate and destroy the infringing goods and instruments mainly used for manufacturing the infringing goods and forging the registered trademark. Where the illegal business revenue is RMB 50,000 yuan or more, a fine of up to five times the illegal business revenue may be imposed thereon; where there is no illegal business revenue or the illegal business revenue is less than RMB 50,000 yuan, a fine of up to RMB 250,000 yuan may be imposed thereon. If a party has committed trademark infringement on two or more occasions within five years or falls under any other serious circumstances, it shall be subject to a heavier punishment. If a party is unaware of the infringing nature of such products and is able to prove that the products are obtained by legitimate means and can provide information on the suppliers of the products, it shall be ordered to stop selling the products by the administrative department for industry and commerce.

As to a dispute over the amount of damages for infringement on the exclusive right to use a trademark, the parties concerned may apply to the administrative department for industry and commerce that addresses the infringing dispute for mediation, or may bring a lawsuit to the people’s court in accordance with the Civil Procedure Law of the People’s Republic of China. Where the parties concerned fail to reach any agreement upon mediation by the administrative department for industry and commerce, or fail to perform the mediation agreement after it becomes effective, the parties may bring a lawsuit to the people’s court in accordance with the Civil Procedure Law of the People’s Republic of China.

Article 61 The administrative department for industry and commerce shall have the power to investigate any act infringing upon the exclusive right to the use of a registered trademark. Where a crime is suspected to have been committed, it shall promptly transfer the case to a judicial department for handling in accordance with law.

Article 62 When an administrative department for industry and commerce at or above the county level, on the basis of the evidence or information, obtained for a suspected violation of law, conducts investigation into a suspected infringement of another person’s exclusive right to the use of a registered trademark, it may exercise the following functions and powers:

1. Questioning the parties concerned to find out the facts regarding the infringement of another person’s exclusive right to the use of a registered trademark;
2. Checking and reproducing the parties?contracts, invoices, account books, and other materials relating to the infringement;
3. Conducting on-the-spot inspection of the premises where the suspected party carries out activities infringing upon another person’s exclusive right to the use of a registered trademark; and
4. Inspecting articles involved in the infringement; sealing or seizing the articles that are proven to been used for infringing upon another person’s exclusive right to the use of a registered trademark.

When the administrative department for industry and commerce exercises the functions and powers provided for in the preceding paragraph in accordance with law, the parties shall assist and cooperate with it and may not refuse to do so or stand in its way.

During the investigation and handling of a trademark infringement case, an administrative department for industry and commerce may suspend the investigation and handling of the case if disputes arise over the ownership of the trademark or if the right holders simultaneously bring a trademark infringement lawsuit to the people’s courts. And the investigation and handling procedures shall be resumed or closed up after the circumstances for suspension are eliminated.

Article 63 The amount of damages for infringement on the exclusive right to use a trademark shall be determined based on the actual loss suffered by the right holder as a result of the infringement; if it is difficult to determine the actual loss, the amount of damages may be determined according to the profits gained therefrom by the infringer, if it is difficult to determine both the loss of the right holder and the profits gained by the infringing party, the amount of damages may be reasonably determined in reference to the multiples of the trademark for royalties. Where an infringer maliciously infringes upon another party’s exclusive right to use a trademark and falls under serious circumstances, the amount of damages may be determined as not less than one time but not more than three times the amount that is determined according to the aforesaid methods. The amount of damages shall cover the reasonable expenses paid by the right holder for stopping the infringing act.

Where the right holder has exhausted its efforts in discharging the obligation of burden of proof, but the account books and materials related to the infringing acts are mainly controlled by the infringer, the people’s court may, for the purpose of determining the amount of damages, order the infringer to submit account books and materials related to the infringing acts. Where the infringer fails to provide such account books or materials or provides false account books or materials, the people’s court may render a judgment on the amount of damages in reference to the claims of the right holder and the evidence furnished thereby.

Where it is difficult to determine the actual loss suffered by the right holder as a result of the infringement, the profits gained by the infringer from the infringement or the royalties of the registered trademark concerned, the people’s court shall render a judgment awarding damages in an amount not more than RMB three million yuan based on the circumstances of the infringing acts

Article 64 Where the holder of the exclusive right to use a registered trademark claims for damages, and the alleged infringer counterclaims that the right holder has never used the registered trademark, the people’s court may require the right holder to provide evidence of its actual use of the registered trademark during the past three years prior to the lawsuit. The alleged infringer shall not be liable for compensation if the right holder is neither able to prove its actual use of the registered trademark during the past three years prior to the lawsuit, nor able to prove other losses suffered as a

result of the infringement.

Where a party is unaware that the goods he sells infringe upon another party’s exclusive right to use a registered trademark, and the party is able to prove that the goods are obtained by legitimate means and provide information on the suppliers of the goods, it shall not be liable for compensation.

Article 65 Where a trademark registrant or an interested party has evidence proving that another party is committing or is soon to commit an act that infringes upon the former’s exclusive right to use the registered trademark and that such an act, unless promptly stopped, will cause irreparable damage to its legitimate rights and interests, the trademark registrant or interested party may, in accordance with the law, apply to the people’s court for an injunction and taking asset preservation before filing a lawsuit.

Article 66 In order to stop an infringing act, and where evidence may be destroyed or vanished, or may become unobtainable in the future, the relevant trademark registrant or interested party may, in accordance with the law, apply to the people’s court for evidence preservation before filing a lawsuit.

Article 67 Where a person, without permission of the owner of a registered trademark, uses a trademark that is identical with the owner’s on the same kind of goods, which constitutes a crime, he shall, in addition to compensating losses suffered by the infringed, be investigated for criminal responsibility in accordance with law.

Anyone who counterfeits or makes without permission the representations of another person’s registered trademark or sells such representations which constitutes a crime, shall, in addition to compensating the losses suffered by the infringed, be investigated for criminal responsibility in accordance with law.

Anyone who knowingly sells goods bearing counterfeit registered trademarks, which constitutes a crime, shall, in addition to compensating the losses suffered by the infringed, be investigated for criminal responsibility in accordance with law.

Article 68 A trademark agency that commits any of the following acts shall be ordered to make correction within a time limit by the administrative department for industry and commerce, be given a warning, and be fined not less than RMB 10,000 yuan but not more than RMB 100,000 yuan; the persons in charge who are directly responsible and other persons directly responsible shall be given a warning and be fined not less than RMB 5,000 yuan but not more than RMB 50,000 yuan; where a crime is constituted, criminal liabilities shall be investigated in accordance with the law:

1. Fabricating or tampering with legal documents, seals or signatures, or using fabricated or tempered legal documents, seals or signatures during the handling of trademark-related matters;
2. Soliciting trademark agency business by defaming other trademark agencies, or disrupting the order of the trademark agency market by other unjust means; or
3. Violating the provisions of the third or fourth paragraph of Article 19 of this

Law.

Where a trademark agency commits an act prescribed in the preceding paragraph, the administrative department for industry and commerce shall record such matters in the credit files; if the circumstances are serious, the trademark office or the trademark review and adjudication board may concurrently decide to cease the acceptance and handling the trademark agency business submitted by the trademark agency, and shall make an announcement thereon.

The trademark agency shall bear civil liabilities in accordance with the law if it violates the principle of good faith and infringes the legitimate rights and interests of a principal, and shall be given sanctions by the trade association of the trademark agencies pursuant to its articles of association.

Article 69 Functionaries of State organs engaged in trademark registration, administration, and review shall be impartial in implementing the law, honest and self-disciplined, and devoted to their duties, and shall provide services with civility.

No functionaries of State organs working in the trademark office and the trademark review and adjudication board or engaged in trademark registration, administration, and review may work for trademark agencies or engage in the manufacture or marketing of goods.

Article 70 Administrative departments or industry and commerce shall establish and improve an internal supervision system to supervise and inspect the way State organ functionaries in charge of trademark registration, administration, and review implement laws and administrative regulations and observe discipline.

Article 71 Where a State organ functionary working in trademark registration, administration, and review neglects his duty, abuses his power, and engages in malpractice for personal gain, violates the law in trademark registration, administration, and review, accepts money or things of value from a party, or seeks illegitimate interests, and where the case is so serious as to constitute a crime, he shall be investigated for criminal responsibility in accordance with law. Where the case does not constitute a crime, he shall be given sanction in accordance with law.

Trademarks registered before this Law goes into effect shall remain valid.