Regulation for the Implementation of the Trademark Law (Chinese and English Text)
Major Law
Additional Laws and Regulations
Short Summary
The following translation was retrieved from the Nanjing City Web site on February 4, 2007. The Chinese text was retrieved from the Ministry of Justice Web site on March 7, 2006.
Regulation for the Implementation of the Trademark Law of the People's Chapter I General Provisions Article 1 The present Regulation has been enacted on the basis of the Trademark Law of the People's Republic of China (hereafter referred to as the Trademark Law). Article 2 The provisions of the present Regulation concerning relevant commodities trademarks shall be applicable to service trademarks. Article 3 The use of trademarks as mentioned in the Trademark Law and the present Regulation refers to affixing trademarks to commodities, commodity packages or containers as well as commodity exchange documents or using trademarks to advertisements, exhibitions and other commercial activities. Article 4 The "commodities to which registered trademarks must be used according to the provisions of the State" as mentioned in Article 6 of the Trademark Law refers to the commodities to which registered must be used according to the provisions of laws or administrative regulations. Article 5 According to the provisions of the Trademark Law and the present Regulation, when a dispute arises in the process of trademark registration or trademark appraisal and the relevant party concerned believes that the trademark thereof constitutes a well-known one, he may apply to the corresponding Trademark Office or Trademark Appraisal Committee for recognition and reject the trademark registration application that violates Article 13 of the Trademark Law or cancel the trademark registration that violates Article 13 of the Trademark Law. When filing the application, the party concerned shall submit evidential materials to prove that the trademark thereof constitutes a well-known trademark. The Trademark Office or Trademark Appraisal Committee shall, upon the request of the party concerned and on the basis of finding out facts, decide whether the trademark constitutes a well-known trademark or not according to the provisions of Article 14 of the Trademark Law. Article 6 The geographic marks as mentioned in Article 16 of the Trademark Law may, according to the provisions of the Trademark Law and the present Regulation, be registered as a certification mark or collective mark. Where a geographic mark is registered as a certification mark, the natural person, legal person or other organization whose commodities meets the conditions for using the geographic mark may request for using the certification mark, and the organization that controls the certification mark shall consent. Where a geographic mark is registered as a collective mark, the natural person, legal person or other organization whose commodities meets the conditions for using the geographic mark may request for becoming a member of the body, society or other organization that has registered the geographic mark as a collective mark, and the body, society or other organization shall accept him or it to be a member according to the constitutions thereof. Any one who does not request for becoming a member of the body, society or other organization that has registered the geographic mark as a collective one, he or it may be justified in using the geographic mark, and the body, society or other organization shall not interdict. Article 7 To entrust a trademark agency to apply for trademark registration or handle other trademark matters, the party concerned shall present a power of attorney. The power of attorney shall clearly specify the content of agency and the limit of power. If the client is a foreigner or foreign enterprise, the power of attorney shall specify the nationality thereof. The principle of reciprocity shall be followed in the notarization or attestation of powers of attorney of foreigners or foreign enterprises as well as other relevant certification documents. A foreigner or foreign enterprise as mentioned in Article 18 of the Trademark Law refers to a foreigner or foreign enterprise that does not have a permanent residence or site of business within China. Article 8 The Chinese language shall be used in the applications for trademark registration or in the handling of other trademark matters. If any of the certificates, certification documents or evidential materials submitted as pursuant to the provisions of the Trademark Law and the present Regulation is in a foreign language, a Chinese version shall be submitted at the same time. If no Chinese version is submitted, it shall be deemed that the certificate, certification document or evidential material has not been submitted. Article 9 A working staff of the Trademark Office or Trademark Appraisal Committee shall withdraw, and the party concerned or interested parties may request him to withdraw if he: a. is the party concerned or a close relative of the party concerned or the agent thereof; b. has other relationship with the party concerned or the agent thereof so that impartiality may be affected; c. has an interest in the application for trademark registration or in the handling of other trademark matters. Article 10 Unless it is otherwise provided, where the parties concerned submits documents or materials to the Trademark Office or Trademark Appraisal Committee directly, the day when he submits shall be the day of submission. If the documents or materials are submitted by post, the post stamp date for sending out shall be the day of submission. Where the post stamp date is not clear or there is no post stamp date, the submission date shall be the day when the Trademark Office or Trademark Appraisal Committee actually receives the documents or materials unless the parties concerned can prove the actual post stamp date for sending out. Article 11 The various kinds of documents of the Trademark Office or Trademark Appraisal Committee may be serviced to the parties concerned directly or by post or by any other means. Where the party concerned has entrusted a trademark agency, the service of documents to the trademark agent shall be deemed as having been serviced to the party concerned. As for the date of service of the various kinds of documents to the parties concerned by the Trademark Office or Trademark Appraisal Committee, if the documents are serviced by post, it shall be the post stamp date when the party concerned receives the document. Where the post stamp date is not clear or there is no post stamp date, it shall be deemed as having been serviced to the party concerned 15 days after the document is sent out. If the document is serviced directly, it shall be the day when it is serviced. Where it is impossible to service directly or by post, it may be serviced to the parties concerned by public announcement. The document shall be deemed as having been serviced 30 days after the public announcement is made. Article 12 International trademark registrations shall be handled according to the international treaties to which China has acceded. The detailed specific measures shall be formulated by the administrative department of industry and commerce under the State Council. Chapter II Application for Trademark Registration Article 13 An application for trademark registration shall be made according to the published table of classification of commodities and services. For each trademark registration application, the applicant shall submit to the Trademark Office a copy of Application for Trademark Registration, 5 copies of the trademark design, and, in the case of decided colors, 5 copies of colored design and a copy of black and white design. The trademark designs shall be conspicuous and easy to be attached. They shall be printed on smooth and durable paper or be replaced by photos, the size of which shall be no more than 10 centimeters but no less than 5 centimeters in length or width. Where an application is made for a three-dimensional mark, it shall be clearly stated in the application and a design shall be submitted according to which three-dimensional shape could be determined. Where an application is made for the registration of a color group as a trademark, it shall be clearly specified in the application and a written explanation shall be submitted. Where an application is made for the registration of a collective trademark or certification mark, it shall be specified in the application, and a certification document concerning the qualifications of the subject as well as the rules of the administration of use shall be submitted. Where a trademark is in a foreign language or involves a foreign language, the meanings of the foreign language shall be explained. Article 14 To apply for trademark registration, the applicant shall submit a photocopy of the effective certificates that can prove his identification. The name of the trademark registration applicant shall be identical to the certificates submitted. Article 15 The name of a commodity or service to be filled in shall be based on the table of classification of commodities and services. Where the name of a commodity or service is not included in the table of classification of commodities and services, an explanation shall be made concerning the commodity or service. The trademark registration applications and other relevant documents shall be typewritten or printed. Article 16 To jointly apply for the registration of a same trademark, a representative shall be designated in the application. In the absence of a representative, the first sequence person in the application shall be the representative. Article 17 Where the applicant alters his name, address or agent, or deletes any of the designated commodities, he may apply to the Trademark Office for alterations. Where the applicant transfers his application for trademark registration, he shall go through transfer procedures at the Trademark Office. Article 18 The day of application for trademark registration shall be the day when the Trademark Office receives the application documents. If the application procedures are complete and application documents have been filled in according to relevant provisions, the Trademark Office shall accept and notify the applicant in writing. If the application procedures are incomplete or application documents fail to be filled in according to relevant provisions, the Trademark Office shall refuse to accept and inform the applicant in writing together with an explanation of the reasons. If the application procedures are basically complete or the application documents are basically in conformity with relevant provisions but need supplementing, the Trademark Office shall inform the applicant to make supplements, and demand him to make up the designated contents and send back to the Trademark Office within 30 days after receiving the notice. If supplements are made within the required time period and sent back to the Trademark Office, the date of application shall be retained. If the applicant fails to make the supplement within the required time period, it shall be deemed that he has given up the application, and the Trademark Office shall inform the applicant in writing. Article 19 If two or more applicants apply on the same day for registration of identical or similar trademarks for the same kind of commodity or similar commodity, each applicant shall submit, within 30 days and as notified by the Trademark Office, proof of the date of the first use of its trademark. In case the trademarks were first used on the same day, or neither is yet in use, the applicants shall settle the matter by negotiations within 30 days after receiving the notice of the Trademark Office, and the agreement shall be submitted to the Trademark Office in writing. If they refuse to negotiate or if they fail to enter into any agreement, the Trademark Office shall inform them to decide the applicant by drawing lots, and the application of other applicants shall be rejected. Where any applicant has been notified by the Trademark Office but fails to draw lots, he shall be deemed as giving up his application, and the Trademark Office shall inform the applicant failing to draw lots in writing. Article 20 Where an applicant requests for priority according to the provisions of Article 24 of the Trademark Law, the reproduction of the documents submitted thereby for the first time for trademark registration shall be subject to the certification of the administrative department of trademark affairs that has accepted the application which shall mark the date and sequence number of application. Where an applicant requests for priority according to the provisions of Article 25 of the Trademark Law, the certification documents submitted by the applicant shall be subject to the attestation of an institution as designated by the administrative department of industry and commerce under the State Council, with the exception of international commodity fairs held within the territory of China on which his commodities have been exhibited. Chapter III Examination of Applications for Trademark Registration Article 21 The Trademark Office shall examine the applications for trademark registration that it has accepted according to the relevant provisions of the Trademark Law and the present Regulation, and grant initial approval by public announcement to those applications that meet the requirements and those applications that meet the requirements for registration of trademarks to be used on some of the designated commodities. If the application does not meet the requirements or the application for registration of a trademark to be used on some of the designated commodities does not meet the requirements, it shall be rejected, and the applicant shall be informed with an explanation of the reasons. Where the Trademark Office grants initial approval to an application for the registration of a trademark to be used on some of the designated marks, the applicant may, prior to the expiration of the demurral period, request for giving up the application. Where the applicant gives up his application for registering a trademark to be used on some of the designated commodities, the Trademark Office shall cancel the original initial approval and terminate the examination procedures and make a new announcement. Article 22 If demurral is raised against a trademark to which the Trademark Office has granted initial approval by public announcement, the demurrer shall submit a letter of demurral in duplicate to the Trademark Office. The letter of demurral shall clearly specify the issue number of the Trademark Announcements on which the demurred mark is published and the number of initial approval. The letter of demurral shall include specific claims, be supported by facts and be accompanied by relevant evidential materials. The Trademark Office shall send a reproduction of the letter of demurral in good time to the demurred party, demanding him to give a reply within 30 days after receiving the reproduction of the letter of demurral. In case the demurred party fails to make a reply, the Trademark Office shall not be affected in making a ruling concerning the demurral. Where any of the parties concerned needs to supplement relevant evidential materials after filing the request for demurral or after making a reply, he shall make a statement in the request or reply, and submit them within 3 months after filing the request or making the reply. Failure to submit at the expiration of the prescribed time period shall be deemed that the party concerned has quitted the supplementation of relevant evidential materials. Article 23 The term "justification of demurral" as mentioned in Article 34 (b) of the Trademark Law shall include the justification on some of the designated commodities. Where the demurral is justified on some of the designated commodities, the application for registering a trademark to be used on some of the designated commodities shall not be approved. Where public announcement has already been made for the registration of the demurred mark before the ruling of demurral takes effect, the original registration announcement shall be canceled, and a new announcement shall be made for the mark approved for registration by the ruling of demurral. The mark which is approved for registration by the ruling of demurral shall not have retrospective force against other persons' use of the same or similar mark on identical or similar products after the period of trademark demurral expires but before the ruling of demurral takes effect. However, if any loss has been caused by the vicious use of the user to the trademark registrant, such loss shall be compensated. The time period for requesting appraisal of a trademark which is approved for registration by the ruling of demurral shall commence on the day when the ruling of demurral is announced. Chapter IV Alteration, Transfer and Renew of Registered Trademarks Article 24 To alter the name, address or other registration matters of a trademark registrant, the applicant shall file an application for alteration to the Trademark Office. The Trademark Office shall, upon approving the application, issue a corresponding certificate to the trademark registrant and make a public announcement. In approval is not to be granted, it shall inform the applicant in written form. To alter the name of a trademark registrant, the applicant shall also submit relevant certification documents of alteration as issued by the business registration authority. If he fails to submit the certification documents, he may make it up within 30 days after filing the application. If he fails to submit when the prescribed time period expires, it shall be deemed that he has quitted the application, and the Trademark Office shall inform the applicant in written form. To alter the name or address of a trademark registrant, the registrant shall alter all of his registered trademarks. Failing to alter all his registered trademarks, it shall be deemed that he has quitted the application, and the Trademark Office shall inform the applicant in written form. Article 25 To transfer a registered trademark, the transferrer and the transferee shall file an application to the Trademark Office for the transfer of the registered mark. The application procedures for the transfer shall be gone through by the transferee. The Trademark Office shall, after granting approval to the transfer of registered trademark, issue corresponding certificates to the transferee and make a public announcement. To transfer a registered trademark, the registrant shall transfer all his identical or similar marks that are used on identical or similar commodities. If he fails to transfer all his marks, the Trademark Office shall inform him to mend up within a prescribed time period. If he fails to mend up during the time period, it shall be deemed that he has quitted the application for transferring the mark, and the Trademark Office shall inform the applicant in written form. If the transfer of registered trademark may be misleading, confusing or causing other unfavorable effects, the application for such transfer shall not be approved by the Trademark Office and shall inform the applicant in written form together with an explanation of the reasons. Article 26 If the exclusive right to use a registered trademark is transferred due to any matter other than trademark transfer, the party concerned that accepts the exclusive right to use the registered trademark shall handle the procedures of transferring the exclusive right by presenting relevant certification documents or legal documents at the Trademark Office. If the exclusive right to use a registered trademark is transferred, the identical or similar trademarks that the right holder registers on the identical or similar commodities shall be transferred at the same time. If he fails to transfer at the same time, the Trademark Office shall order him to mend up. If he fails to mend up during the prescribed time period, it shall be deemed that he has quitted the application for transferring the registered trademark, and the Trademark Office shall inform the applicant in writing. Article 27 Where the registration of a registered mark needs to be renewed, an application shall be filed to the Trademark Office for renewal. The Trademark Office shall, upon approving the application for renewing the registration, issue a certificate and make a public announcement. The valid period of time of the renewed registered trademark shall be calculated from the day when the preceding period of the mark expires. Chapter V Trademark Appraisal Article 28 The Trademark Appraisal Committee accepts applications for trademark appraisal filed according to the provisions of Articles 32, 33, 41 and 49. The Trademark Appraisal Committee makes appraisals lawfully and on the basis of facts. Article 29 The phrase "having different opinions about a registered trademark" as mentioned in Article 41, Paragraph 3 of the Trademark Law refers to that the prior trademark registrant believes that the trademark of a latter applicant is identical or similar to his trademark used on identical or similar commodities. Article 30 To apply for trademark appraisal, the applicant shall file an application to the Trademark Appraisal Committee and submit as many reproductions as the number of parties concerned. If an application for reconsideration is filed on the basis of the decision or ruling of the Trademark Office, a reproduction of the decision or ruling of the Trademark Office shall be attached at the same time. After receiving the application, the Trademark Appraisal Committee shall accept it if it is found to be eligible upon examination. If it is found to be not eligible for acceptance, the Trademark Appraisal Committee shall not accept it, but shall inform the applicant in writing together with an explanation of the reasons. If the application needs to be mended up, the applicant shall be informed to mend up within 30 days after receiving the notice. If the application is still not eligible after being mended up, the Trademark Appraisal Committee shall reject it and inform the applicant in writing together with an explanation of the reasons. If the applicant fails to mend up during the prescribed time period, it shall be deemed that he has withdrawn the application, and the Trademark Appraisal Committee shall inform the applicant in writing. If the Trademark Appraisal Committee finds the application for trademark appraisal does not meet the requirements for acceptance after it is accepted, it shall reject it and inform the applicant in writing. Article 31 After accepting the application for trademark appraisal, the Trademark Appraisal Committee shall send a reproduction of the application to the opposite party in good time, and demanding him to make a reply within 30 days after receiving the reproduction. If he fails to make a reply within the prescribed time period, the appraisal of the Trademark Appraisal Committee shall not be affected. Article 32 Where any party concerned needs to supplement relevant evidential materials after filing the application for appraisal or making a reply, he shall make a statement in the application or reply, and shall submit them within 3 months after filing the application or making a reply. If he fails to submit within the prescribed period, it shall be deemed that he has quitted the supplementation of relevant evidential materials. Article 33 The Trademark Appraisal Committee may, according to the request of the parties concerned or the actual need, decide whether to appraise the application in public. Where the Trademark Appraisal Committee decides to appraise the application in public, it shall inform the parties concerned in writing, 15 days prior to the public appraisal, of the date, venue and appraisers. The parties concerned shall make a reply within the time period as prescribed in the notice. If the applicant neither makes a reply nor attends the public appraisal, it shall be deemed that he has withdrawn his application, and the Trademark Appraisal Committee shall inform the parties concerned in writing. If the party against whom the application is filed neither makes a reply nor attends the public appraisal, the Trademark Appraisal Committee may make a default appraisal. Article 34 If the applicant requests to withdraw his application before the Trademark Appraisal Committee makes a decision or ruling, he may withdraw it after making a written explanation to the Trademark Appraisal Committee. The appraisal procedures shall be terminated when the application is withdrawn. Article 35 Where any applicant withdraws his application for trademark appraisal, he may not file any further applications on the same facts and reasons. If the Trademark Appraisal Committee has made a decision or ruling about the application, no one may file further applications on the same facts and reasons. Article 36 In case a registered trademark is canceled according to the provisions of Article 41 of the Trademark Law, the exclusive right to use the trademark shall be deemed as not existing from the very beginning. The decisions or rulings about canceling a registered trademark shall not have retrospective force against the decisions made and enforced by the administrative department of industry and commerce concerning trademark infringement cases or contracts for the transfer of trademark or licensed use of trademark which has already been performed. However, if any loss has been caused by the trademark registrant to any other party, such loss shall be compensated. Chapter VI Administration of the Use of Trademarks Article 37 For the use of a registered trademark, it may be marked with the words "registered trademark" or a mark of registration on the commodities, commodity packages, specifications or other adhesive substances. Marks of registration include the encircled Chinese character "zhu" (注) or encircled letter "R" (?). The mark of registration shall be used at the upper right or lower right corner of the trademark used. Article 38 In case the certificate of trademark registration is missing damaged, the registrant shall apply to the Trademark Office for reissuance. If the certificate of trademark registration is missing, a lost property notice shall be published in the Trademark Announcements. The damaged certificate of trademark registration shall be returned to the Trademark Office when the registrant files an application for reissuing a certificate. Any one who forges or alters a certificate of trademark registration shall be subject to criminal liabilities according to the provisions of the Criminal Law concerning the crime of forging or altering certificates of state organs or other crimes. Article 39 Any trademark registrant who does any of the acts as mentioned in Items 1, 2 or 3 of Article 44 of the Trademark Law shall be ordered by the administrative department of industry and commerce to mend up within a prescribed time period. If he refuses to mend up, the administrative department of industry and commerce shall report to the Trademark Office for canceling the registered trademark thereof. Where any of the acts as mentioned in Item 4 of Article 44 of the Trademark Law, any one may request the Trademark Office to cancel the registered trademark and narrate the relevant facts. The Trademark Office shall inform the trademark registrant and order him to submit, within 2 months after receiving the notice, evidential materials for using the trademark before withdrawing his application or to state the justifications for not using it. If he fails to submit evidential materials for using it or if the evidential materials are invalid and he has not justified reasons, the registered trademark shall be canceled by the Trademark Office. The term "evidential materials" as mentioned in the preceding paragraph shall include the evidential materials for the trademark registrant's use of the registered trademark and the evidential materials for registrant's licensing other people to use it. Article 40 In case a registered trademark is canceled according to the provisions of Articles 44 and 45 of the Trademark Law, a public announcement shall be made by the Trademark Office, and the exclusive right to use the registered trademark shall be terminated as of the day when the Trademark Office makes the decision of cancellation. Article 41 If the reasons of the Trademark Office or Trademark Appraisal Committee for canceling a registered trademark concern only some of the designated commodities, the registered trademark that is used on this part of designated commodities shall be canceled. Article 42 A fine to be imposed according to the provisions of Articles 45 and 48 of the Trademark Law shall be less than 20% of the unlawful turnover or less than 2 times the unlawful profits obtained. A fine to be imposed according to the provisions of Article 47 of the Trademark Law shall be less than 10% of the unlawful turnover. Article 43 In the case of licensing other people to use his registered trademark, the licensor shall submit, within 3 months after the contract for licensed use of trademark is concluded, a reproduction of the contract to the Trademark Office for archivist purposes. Article 44 Any one who violates the provisions of Article 40, Paragraph 2 of the Trademark Law shall be ordered by the administrative department of industry and commerce to mend up within a prescribed time period. If he fails to mend up during the prescribed time period, the trademark signs thereof shall be confiscated. If the trademark signs are indispensable from the commodities, they shall be confiscated and destroyed together. Article 45 In case any use of trademarks violates Article 13 of the Trademark Law, the relevant parties concerned may request the administrative department of industry and commerce to interdict the use. When making the request, the parties concerned shall submit evidential materials to prove that the trademark thereof constitutes a well-known one. If the Trademark Office affirms on the basis of Article 14 of the Trademark Law that the trademark constitutes a well-known one, the administrative department of industry and commerce shall order the infringer to stop his acts of using the well-known trademark which is against the provisions of Article 13 of the Trademark Law. The trademark signs thereof shall be confiscated and destroyed. If the trademark signs are indispensable from the commodities, they shall be confiscated and destroyed together. Article 46 To apply for writing off a registered trademark or the registration of a trademark on some of the designated commodities, the trademark registrant shall file an application to the Trademark Office and return the original certificate of trademark registration. Where the trademark registrant requests for writing off a registered trademark or writing off the registration of a trademark on some of the designated commodities, the exclusive right to use the registered trademark or to use on some of the designated commodities shall be terminated as of the day when the Trademark Office receives its request for writing off. Article 47 In case the trademark registrant dies or is terminated and the registered trademark has not been transferred within 1 year after the death or termination, any one may request the Trademark Office for writing office the registered trademark. To apply for writing off the registered trademark, one shall submit evidences to prove that the relevant trademark registrant has died or been terminated. Where a registered trademark is written off due to the death or termination of registrant, the exclusive right to use the registered trademark shall be terminated as of the day when the registrant dies or is terminated. Article 48 Where a registered trademark is canceled or is written off according to the provisions of Articles 46 and 47 of the present Regulation, the original certificate of trademark registration shall be invalidated. If the registration of the trademark on some of the designated commodities is canceled or if the registrant requests for writing off his registration on some of the designated commodities, the Trademark Office shall make a remark on the original certificate of trademark registration and return it to the registrant or reissue a certificate of trademark registration and make a public announcement. Chapter VII Protection of the Exclusive Right to Use Registered Trademarks Article 49 The exclusive right holder of a registered trademark shall not be entitled to prohibit other people from using in normal ways the common name, logo, model which is implied in the registered trademark or the quality, main raw materials, functions, uses, weight, quantity or other features or the geographic name which is directly expressed by the registered trademark. Article 50 Any of the following acts shall be an act of infringing upon the exclusive right to use a registered trademark as mentioned in Item 5 of the Article 52 of the Trademark Law: a. Using on identical or similar commodities or using a sign which is identical or similar to the registered trademark of other people as the name of commodity or as the decoration of commodity so that the general public are misled; b. Intentionally facilitating any other's act of infringing upon the exclusive right to use a registered trademark such as storage, transportation, postage, concealing, etc. Article 51 With regard to any act of infringing upon the exclusive right to use a registered mark, any one may report or file a complaint to the administrative department of industry and commerce. Article 52 For the acts of infringing upon the exclusive right to use a registered trademark, the infringer may be fined a sum of up to 3 times of the unlawful turnover. If the unlawful turnover cannot be calculated, the fine may be up to 100,000 yuan. Article 53 Where the owner of a trademark believes that his well-known trademark is registered as the name of enterprise by any other person and the general public might be cheated or be misled, he may apply to the administrative department in charge of the registration of enterprise names to cancel the registration of the enterprise name. The administrative department in charge of the registration of enterprise names shall deal with it according to the Provisions on the Registration of Enterprise Names. Chapter VIII Supplementary Provisions Article 54 If a service mark which had been used incessantly up to July 1, 1993 is identical or similar to the service mark that was registered for identical or similar services by any other person, it may continue to be used. However, if it had been ceased from use for up to 3 years after July 1, 1993, it may not continue to be used. Article 55 The detailed measures for the administration of trademark agency shall be separately formulated by the State Council. Article 56 The table of classification of commodities and services for the registration of trademarks shall be formulated and promulgated by the administrative department of industry and commerce under the State Council. The documentary formats for the application for trademark registrations or handling other trademark matters shall be formulated and promulgated by the administrative department of industry and commerce under the State Council. The rules for the appraisal of the Trademark Appraisal Committee shall be formulated and promulgated by the administrative department of industry and commerce under the State Council. Article 57 A Directory of Trademark Registration shall be prepared by the Trademark Office to record registered marks and other registration-related matters. The Trademark Office compiles and publishes the Trademark Announcements to publish trademark registrations and other relevant matters. Article 58 Fees shall be paid for the applications for trademark registration or for handling other trademark matters. The items and rates for paying fees shall be formulated and promulgated by the administrative department of industry and commerce under the State Council in collaboration with the administrative department of price affairs under the State Council. Article 59 The present Regulation shall enter into force as of September 15, 2002. The Detailed Rules for the Implementation of the Trademark Law of the People's Republic of China which was promulgated by the State Council on March 10, 1983 and amended upon the ratification of the State Council for the first time on January 3, 1988 and for the second time on July 15, 1993 as well as the Official Reply of the State Council on the Issue of Certificates to Be Attached for the Handling of Trademark Registrations which was published on April 23, 1995 shall be repealed concurrently.
Regulation for the Implementation of the Trademark Law of the People's Chapter I General Provisions Article 1 The present Regulation has been enacted on the basis of the Trademark Law of the People's Republic of China (hereafter referred to as the Trademark Law). Article 2 The provisions of the present Regulation concerning relevant commodities trademarks shall be applicable to service trademarks. Article 3 The use of trademarks as mentioned in the Trademark Law and the present Regulation refers to affixing trademarks to commodities, commodity packages or containers as well as commodity exchange documents or using trademarks to advertisements, exhibitions and other commercial activities. Article 4 The "commodities to which registered trademarks must be used according to the provisions of the State" as mentioned in Article 6 of the Trademark Law refers to the commodities to which registered must be used according to the provisions of laws or administrative regulations. Article 5 According to the provisions of the Trademark Law and the present Regulation, when a dispute arises in the process of trademark registration or trademark appraisal and the relevant party concerned believes that the trademark thereof constitutes a well-known one, he may apply to the corresponding Trademark Office or Trademark Appraisal Committee for recognition and reject the trademark registration application that violates Article 13 of the Trademark Law or cancel the trademark registration that violates Article 13 of the Trademark Law. When filing the application, the party concerned shall submit evidential materials to prove that the trademark thereof constitutes a well-known trademark. The Trademark Office or Trademark Appraisal Committee shall, upon the request of the party concerned and on the basis of finding out facts, decide whether the trademark constitutes a well-known trademark or not according to the provisions of Article 14 of the Trademark Law. Article 6 The geographic marks as mentioned in Article 16 of the Trademark Law may, according to the provisions of the Trademark Law and the present Regulation, be registered as a certification mark or collective mark. Where a geographic mark is registered as a certification mark, the natural person, legal person or other organization whose commodities meets the conditions for using the geographic mark may request for using the certification mark, and the organization that controls the certification mark shall consent. Where a geographic mark is registered as a collective mark, the natural person, legal person or other organization whose commodities meets the conditions for using the geographic mark may request for becoming a member of the body, society or other organization that has registered the geographic mark as a collective mark, and the body, society or other organization shall accept him or it to be a member according to the constitutions thereof. Any one who does not request for becoming a member of the body, society or other organization that has registered the geographic mark as a collective one, he or it may be justified in using the geographic mark, and the body, society or other organization shall not interdict. Article 7 To entrust a trademark agency to apply for trademark registration or handle other trademark matters, the party concerned shall present a power of attorney. The power of attorney shall clearly specify the content of agency and the limit of power. If the client is a foreigner or foreign enterprise, the power of attorney shall specify the nationality thereof. The principle of reciprocity shall be followed in the notarization or attestation of powers of attorney of foreigners or foreign enterprises as well as other relevant certification documents. A foreigner or foreign enterprise as mentioned in Article 18 of the Trademark Law refers to a foreigner or foreign enterprise that does not have a permanent residence or site of business within China. Article 8 The Chinese language shall be used in the applications for trademark registration or in the handling of other trademark matters. If any of the certificates, certification documents or evidential materials submitted as pursuant to the provisions of the Trademark Law and the present Regulation is in a foreign language, a Chinese version shall be submitted at the same time. If no Chinese version is submitted, it shall be deemed that the certificate, certification document or evidential material has not been submitted. Article 9 A working staff of the Trademark Office or Trademark Appraisal Committee shall withdraw, and the party concerned or interested parties may request him to withdraw if he: a. is the party concerned or a close relative of the party concerned or the agent thereof; b. has other relationship with the party concerned or the agent thereof so that impartiality may be affected; c. has an interest in the application for trademark registration or in the handling of other trademark matters. Article 10 Unless it is otherwise provided, where the parties concerned submits documents or materials to the Trademark Office or Trademark Appraisal Committee directly, the day when he submits shall be the day of submission. If the documents or materials are submitted by post, the post stamp date for sending out shall be the day of submission. Where the post stamp date is not clear or there is no post stamp date, the submission date shall be the day when the Trademark Office or Trademark Appraisal Committee actually receives the documents or materials unless the parties concerned can prove the actual post stamp date for sending out. Article 11 The various kinds of documents of the Trademark Office or Trademark Appraisal Committee may be serviced to the parties concerned directly or by post or by any other means. Where the party concerned has entrusted a trademark agency, the service of documents to the trademark agent shall be deemed as having been serviced to the party concerned. As for the date of service of the various kinds of documents to the parties concerned by the Trademark Office or Trademark Appraisal Committee, if the documents are serviced by post, it shall be the post stamp date when the party concerned receives the document. Where the post stamp date is not clear or there is no post stamp date, it shall be deemed as having been serviced to the party concerned 15 days after the document is sent out. If the document is serviced directly, it shall be the day when it is serviced. Where it is impossible to service directly or by post, it may be serviced to the parties concerned by public announcement. The document shall be deemed as having been serviced 30 days after the public announcement is made. Article 12 International trademark registrations shall be handled according to the international treaties to which China has acceded. The detailed specific measures shall be formulated by the administrative department of industry and commerce under the State Council. Chapter II Application for Trademark Registration Article 13 An application for trademark registration shall be made according to the published table of classification of commodities and services. For each trademark registration application, the applicant shall submit to the Trademark Office a copy of Application for Trademark Registration, 5 copies of the trademark design, and, in the case of decided colors, 5 copies of colored design and a copy of black and white design. The trademark designs shall be conspicuous and easy to be attached. They shall be printed on smooth and durable paper or be replaced by photos, the size of which shall be no more than 10 centimeters but no less than 5 centimeters in length or width. Where an application is made for a three-dimensional mark, it shall be clearly stated in the application and a design shall be submitted according to which three-dimensional shape could be determined. Where an application is made for the registration of a color group as a trademark, it shall be clearly specified in the application and a written explanation shall be submitted. Where an application is made for the registration of a collective trademark or certification mark, it shall be specified in the application, and a certification document concerning the qualifications of the subject as well as the rules of the administration of use shall be submitted. Where a trademark is in a foreign language or involves a foreign language, the meanings of the foreign language shall be explained. Article 14 To apply for trademark registration, the applicant shall submit a photocopy of the effective certificates that can prove his identification. The name of the trademark registration applicant shall be identical to the certificates submitted. Article 15 The name of a commodity or service to be filled in shall be based on the table of classification of commodities and services. Where the name of a commodity or service is not included in the table of classification of commodities and services, an explanation shall be made concerning the commodity or service. The trademark registration applications and other relevant documents shall be typewritten or printed. Article 16 To jointly apply for the registration of a same trademark, a representative shall be designated in the application. In the absence of a representative, the first sequence person in the application shall be the representative. Article 17 Where the applicant alters his name, address or agent, or deletes any of the designated commodities, he may apply to the Trademark Office for alterations. Where the applicant transfers his application for trademark registration, he shall go through transfer procedures at the Trademark Office. Article 18 The day of application for trademark registration shall be the day when the Trademark Office receives the application documents. If the application procedures are complete and application documents have been filled in according to relevant provisions, the Trademark Office shall accept and notify the applicant in writing. If the application procedures are incomplete or application documents fail to be filled in according to relevant provisions, the Trademark Office shall refuse to accept and inform the applicant in writing together with an explanation of the reasons. If the application procedures are basically complete or the application documents are basically in conformity with relevant provisions but need supplementing, the Trademark Office shall inform the applicant to make supplements, and demand him to make up the designated contents and send back to the Trademark Office within 30 days after receiving the notice. If supplements are made within the required time period and sent back to the Trademark Office, the date of application shall be retained. If the applicant fails to make the supplement within the required time period, it shall be deemed that he has given up the application, and the Trademark Office shall inform the applicant in writing. Article 19 If two or more applicants apply on the same day for registration of identical or similar trademarks for the same kind of commodity or similar commodity, each applicant shall submit, within 30 days and as notified by the Trademark Office, proof of the date of the first use of its trademark. In case the trademarks were first used on the same day, or neither is yet in use, the applicants shall settle the matter by negotiations within 30 days after receiving the notice of the Trademark Office, and the agreement shall be submitted to the Trademark Office in writing. If they refuse to negotiate or if they fail to enter into any agreement, the Trademark Office shall inform them to decide the applicant by drawing lots, and the application of other applicants shall be rejected. Where any applicant has been notified by the Trademark Office but fails to draw lots, he shall be deemed as giving up his application, and the Trademark Office shall inform the applicant failing to draw lots in writing. Article 20 Where an applicant requests for priority according to the provisions of Article 24 of the Trademark Law, the reproduction of the documents submitted thereby for the first time for trademark registration shall be subject to the certification of the administrative department of trademark affairs that has accepted the application which shall mark the date and sequence number of application. Where an applicant requests for priority according to the provisions of Article 25 of the Trademark Law, the certification documents submitted by the applicant shall be subject to the attestation of an institution as designated by the administrative department of industry and commerce under the State Council, with the exception of international commodity fairs held within the territory of China on which his commodities have been exhibited. Chapter III Examination of Applications for Trademark Registration Article 21 The Trademark Office shall examine the applications for trademark registration that it has accepted according to the relevant provisions of the Trademark Law and the present Regulation, and grant initial approval by public announcement to those applications that meet the requirements and those applications that meet the requirements for registration of trademarks to be used on some of the designated commodities. If the application does not meet the requirements or the application for registration of a trademark to be used on some of the designated commodities does not meet the requirements, it shall be rejected, and the applicant shall be informed with an explanation of the reasons. Where the Trademark Office grants initial approval to an application for the registration of a trademark to be used on some of the designated marks, the applicant may, prior to the expiration of the demurral period, request for giving up the application. Where the applicant gives up his application for registering a trademark to be used on some of the designated commodities, the Trademark Office shall cancel the original initial approval and terminate the examination procedures and make a new announcement. Article 22 If demurral is raised against a trademark to which the Trademark Office has granted initial approval by public announcement, the demurrer shall submit a letter of demurral in duplicate to the Trademark Office. The letter of demurral shall clearly specify the issue number of the Trademark Announcements on which the demurred mark is published and the number of initial approval. The letter of demurral shall include specific claims, be supported by facts and be accompanied by relevant evidential materials. The Trademark Office shall send a reproduction of the letter of demurral in good time to the demurred party, demanding him to give a reply within 30 days after receiving the reproduction of the letter of demurral. In case the demurred party fails to make a reply, the Trademark Office shall not be affected in making a ruling concerning the demurral. Where any of the parties concerned needs to supplement relevant evidential materials after filing the request for demurral or after making a reply, he shall make a statement in the request or reply, and submit them within 3 months after filing the request or making the reply. Failure to submit at the expiration of the prescribed time period shall be deemed that the party concerned has quitted the supplementation of relevant evidential materials. Article 23 The term "justification of demurral" as mentioned in Article 34 (b) of the Trademark Law shall include the justification on some of the designated commodities. Where the demurral is justified on some of the designated commodities, the application for registering a trademark to be used on some of the designated commodities shall not be approved. Where public announcement has already been made for the registration of the demurred mark before the ruling of demurral takes effect, the original registration announcement shall be canceled, and a new announcement shall be made for the mark approved for registration by the ruling of demurral. The mark which is approved for registration by the ruling of demurral shall not have retrospective force against other persons' use of the same or similar mark on identical or similar products after the period of trademark demurral expires but before the ruling of demurral takes effect. However, if any loss has been caused by the vicious use of the user to the trademark registrant, such loss shall be compensated. The time period for requesting appraisal of a trademark which is approved for registration by the ruling of demurral shall commence on the day when the ruling of demurral is announced. Chapter IV Alteration, Transfer and Renew of Registered Trademarks Article 24 To alter the name, address or other registration matters of a trademark registrant, the applicant shall file an application for alteration to the Trademark Office. The Trademark Office shall, upon approving the application, issue a corresponding certificate to the trademark registrant and make a public announcement. In approval is not to be granted, it shall inform the applicant in written form. To alter the name of a trademark registrant, the applicant shall also submit relevant certification documents of alteration as issued by the business registration authority. If he fails to submit the certification documents, he may make it up within 30 days after filing the application. If he fails to submit when the prescribed time period expires, it shall be deemed that he has quitted the application, and the Trademark Office shall inform the applicant in written form. To alter the name or address of a trademark registrant, the registrant shall alter all of his registered trademarks. Failing to alter all his registered trademarks, it shall be deemed that he has quitted the application, and the Trademark Office shall inform the applicant in written form. Article 25 To transfer a registered trademark, the transferrer and the transferee shall file an application to the Trademark Office for the transfer of the registered mark. The application procedures for the transfer shall be gone through by the transferee. The Trademark Office shall, after granting approval to the transfer of registered trademark, issue corresponding certificates to the transferee and make a public announcement. To transfer a registered trademark, the registrant shall transfer all his identical or similar marks that are used on identical or similar commodities. If he fails to transfer all his marks, the Trademark Office shall inform him to mend up within a prescribed time period. If he fails to mend up during the time period, it shall be deemed that he has quitted the application for transferring the mark, and the Trademark Office shall inform the applicant in written form. If the transfer of registered trademark may be misleading, confusing or causing other unfavorable effects, the application for such transfer shall not be approved by the Trademark Office and shall inform the applicant in written form together with an explanation of the reasons. Article 26 If the exclusive right to use a registered trademark is transferred due to any matter other than trademark transfer, the party concerned that accepts the exclusive right to use the registered trademark shall handle the procedures of transferring the exclusive right by presenting relevant certification documents or legal documents at the Trademark Office. If the exclusive right to use a registered trademark is transferred, the identical or similar trademarks that the right holder registers on the identical or similar commodities shall be transferred at the same time. If he fails to transfer at the same time, the Trademark Office shall order him to mend up. If he fails to mend up during the prescribed time period, it shall be deemed that he has quitted the application for transferring the registered trademark, and the Trademark Office shall inform the applicant in writing. Article 27 Where the registration of a registered mark needs to be renewed, an application shall be filed to the Trademark Office for renewal. The Trademark Office shall, upon approving the application for renewing the registration, issue a certificate and make a public announcement. The valid period of time of the renewed registered trademark shall be calculated from the day when the preceding period of the mark expires. Chapter V Trademark Appraisal Article 28 The Trademark Appraisal Committee accepts applications for trademark appraisal filed according to the provisions of Articles 32, 33, 41 and 49. The Trademark Appraisal Committee makes appraisals lawfully and on the basis of facts. Article 29 The phrase "having different opinions about a registered trademark" as mentioned in Article 41, Paragraph 3 of the Trademark Law refers to that the prior trademark registrant believes that the trademark of a latter applicant is identical or similar to his trademark used on identical or similar commodities. Article 30 To apply for trademark appraisal, the applicant shall file an application to the Trademark Appraisal Committee and submit as many reproductions as the number of parties concerned. If an application for reconsideration is filed on the basis of the decision or ruling of the Trademark Office, a reproduction of the decision or ruling of the Trademark Office shall be attached at the same time. After receiving the application, the Trademark Appraisal Committee shall accept it if it is found to be eligible upon examination. If it is found to be not eligible for acceptance, the Trademark Appraisal Committee shall not accept it, but shall inform the applicant in writing together with an explanation of the reasons. If the application needs to be mended up, the applicant shall be informed to mend up within 30 days after receiving the notice. If the application is still not eligible after being mended up, the Trademark Appraisal Committee shall reject it and inform the applicant in writing together with an explanation of the reasons. If the applicant fails to mend up during the prescribed time period, it shall be deemed that he has withdrawn the application, and the Trademark Appraisal Committee shall inform the applicant in writing. If the Trademark Appraisal Committee finds the application for trademark appraisal does not meet the requirements for acceptance after it is accepted, it shall reject it and inform the applicant in writing. Article 31 After accepting the application for trademark appraisal, the Trademark Appraisal Committee shall send a reproduction of the application to the opposite party in good time, and demanding him to make a reply within 30 days after receiving the reproduction. If he fails to make a reply within the prescribed time period, the appraisal of the Trademark Appraisal Committee shall not be affected. Article 32 Where any party concerned needs to supplement relevant evidential materials after filing the application for appraisal or making a reply, he shall make a statement in the application or reply, and shall submit them within 3 months after filing the application or making a reply. If he fails to submit within the prescribed period, it shall be deemed that he has quitted the supplementation of relevant evidential materials. Article 33 The Trademark Appraisal Committee may, according to the request of the parties concerned or the actual need, decide whether to appraise the application in public. Where the Trademark Appraisal Committee decides to appraise the application in public, it shall inform the parties concerned in writing, 15 days prior to the public appraisal, of the date, venue and appraisers. The parties concerned shall make a reply within the time period as prescribed in the notice. If the applicant neither makes a reply nor attends the public appraisal, it shall be deemed that he has withdrawn his application, and the Trademark Appraisal Committee shall inform the parties concerned in writing. If the party against whom the application is filed neither makes a reply nor attends the public appraisal, the Trademark Appraisal Committee may make a default appraisal. Article 34 If the applicant requests to withdraw his application before the Trademark Appraisal Committee makes a decision or ruling, he may withdraw it after making a written explanation to the Trademark Appraisal Committee. The appraisal procedures shall be terminated when the application is withdrawn. Article 35 Where any applicant withdraws his application for trademark appraisal, he may not file any further applications on the same facts and reasons. If the Trademark Appraisal Committee has made a decision or ruling about the application, no one may file further applications on the same facts and reasons. Article 36 In case a registered trademark is canceled according to the provisions of Article 41 of the Trademark Law, the exclusive right to use the trademark shall be deemed as not existing from the very beginning. The decisions or rulings about canceling a registered trademark shall not have retrospective force against the decisions made and enforced by the administrative department of industry and commerce concerning trademark infringement cases or contracts for the transfer of trademark or licensed use of trademark which has already been performed. However, if any loss has been caused by the trademark registrant to any other party, such loss shall be compensated. Chapter VI Administration of the Use of Trademarks Article 37 For the use of a registered trademark, it may be marked with the words "registered trademark" or a mark of registration on the commodities, commodity packages, specifications or other adhesive substances. Marks of registration include the encircled Chinese character "zhu" (注) or encircled letter "R" (?). The mark of registration shall be used at the upper right or lower right corner of the trademark used. Article 38 In case the certificate of trademark registration is missing damaged, the registrant shall apply to the Trademark Office for reissuance. If the certificate of trademark registration is missing, a lost property notice shall be published in the Trademark Announcements. The damaged certificate of trademark registration shall be returned to the Trademark Office when the registrant files an application for reissuing a certificate. Any one who forges or alters a certificate of trademark registration shall be subject to criminal liabilities according to the provisions of the Criminal Law concerning the crime of forging or altering certificates of state organs or other crimes. Article 39 Any trademark registrant who does any of the acts as mentioned in Items 1, 2 or 3 of Article 44 of the Trademark Law shall be ordered by the administrative department of industry and commerce to mend up within a prescribed time period. If he refuses to mend up, the administrative department of industry and commerce shall report to the Trademark Office for canceling the registered trademark thereof. Where any of the acts as mentioned in Item 4 of Article 44 of the Trademark Law, any one may request the Trademark Office to cancel the registered trademark and narrate the relevant facts. The Trademark Office shall inform the trademark registrant and order him to submit, within 2 months after receiving the notice, evidential materials for using the trademark before withdrawing his application or to state the justifications for not using it. If he fails to submit evidential materials for using it or if the evidential materials are invalid and he has not justified reasons, the registered trademark shall be canceled by the Trademark Office. The term "evidential materials" as mentioned in the preceding paragraph shall include the evidential materials for the trademark registrant's use of the registered trademark and the evidential materials for registrant's licensing other people to use it. Article 40 In case a registered trademark is canceled according to the provisions of Articles 44 and 45 of the Trademark Law, a public announcement shall be made by the Trademark Office, and the exclusive right to use the registered trademark shall be terminated as of the day when the Trademark Office makes the decision of cancellation. Article 41 If the reasons of the Trademark Office or Trademark Appraisal Committee for canceling a registered trademark concern only some of the designated commodities, the registered trademark that is used on this part of designated commodities shall be canceled. Article 42 A fine to be imposed according to the provisions of Articles 45 and 48 of the Trademark Law shall be less than 20% of the unlawful turnover or less than 2 times the unlawful profits obtained. A fine to be imposed according to the provisions of Article 47 of the Trademark Law shall be less than 10% of the unlawful turnover. Article 43 In the case of licensing other people to use his registered trademark, the licensor shall submit, within 3 months after the contract for licensed use of trademark is concluded, a reproduction of the contract to the Trademark Office for archivist purposes. Article 44 Any one who violates the provisions of Article 40, Paragraph 2 of the Trademark Law shall be ordered by the administrative department of industry and commerce to mend up within a prescribed time period. If he fails to mend up during the prescribed time period, the trademark signs thereof shall be confiscated. If the trademark signs are indispensable from the commodities, they shall be confiscated and destroyed together. Article 45 In case any use of trademarks violates Article 13 of the Trademark Law, the relevant parties concerned may request the administrative department of industry and commerce to interdict the use. When making the request, the parties concerned shall submit evidential materials to prove that the trademark thereof constitutes a well-known one. If the Trademark Office affirms on the basis of Article 14 of the Trademark Law that the trademark constitutes a well-known one, the administrative department of industry and commerce shall order the infringer to stop his acts of using the well-known trademark which is against the provisions of Article 13 of the Trademark Law. The trademark signs thereof shall be confiscated and destroyed. If the trademark signs are indispensable from the commodities, they shall be confiscated and destroyed together. Article 46 To apply for writing off a registered trademark or the registration of a trademark on some of the designated commodities, the trademark registrant shall file an application to the Trademark Office and return the original certificate of trademark registration. Where the trademark registrant requests for writing off a registered trademark or writing off the registration of a trademark on some of the designated commodities, the exclusive right to use the registered trademark or to use on some of the designated commodities shall be terminated as of the day when the Trademark Office receives its request for writing off. Article 47 In case the trademark registrant dies or is terminated and the registered trademark has not been transferred within 1 year after the death or termination, any one may request the Trademark Office for writing office the registered trademark. To apply for writing off the registered trademark, one shall submit evidences to prove that the relevant trademark registrant has died or been terminated. Where a registered trademark is written off due to the death or termination of registrant, the exclusive right to use the registered trademark shall be terminated as of the day when the registrant dies or is terminated. Article 48 Where a registered trademark is canceled or is written off according to the provisions of Articles 46 and 47 of the present Regulation, the original certificate of trademark registration shall be invalidated. If the registration of the trademark on some of the designated commodities is canceled or if the registrant requests for writing off his registration on some of the designated commodities, the Trademark Office shall make a remark on the original certificate of trademark registration and return it to the registrant or reissue a certificate of trademark registration and make a public announcement. Chapter VII Protection of the Exclusive Right to Use Registered Trademarks Article 49 The exclusive right holder of a registered trademark shall not be entitled to prohibit other people from using in normal ways the common name, logo, model which is implied in the registered trademark or the quality, main raw materials, functions, uses, weight, quantity or other features or the geographic name which is directly expressed by the registered trademark. Article 50 Any of the following acts shall be an act of infringing upon the exclusive right to use a registered trademark as mentioned in Item 5 of the Article 52 of the Trademark Law: a. Using on identical or similar commodities or using a sign which is identical or similar to the registered trademark of other people as the name of commodity or as the decoration of commodity so that the general public are misled; b. Intentionally facilitating any other's act of infringing upon the exclusive right to use a registered trademark such as storage, transportation, postage, concealing, etc. Article 51 With regard to any act of infringing upon the exclusive right to use a registered mark, any one may report or file a complaint to the administrative department of industry and commerce. Article 52 For the acts of infringing upon the exclusive right to use a registered trademark, the infringer may be fined a sum of up to 3 times of the unlawful turnover. If the unlawful turnover cannot be calculated, the fine may be up to 100,000 yuan. Article 53 Where the owner of a trademark believes that his well-known trademark is registered as the name of enterprise by any other person and the general public might be cheated or be misled, he may apply to the administrative department in charge of the registration of enterprise names to cancel the registration of the enterprise name. The administrative department in charge of the registration of enterprise names shall deal with it according to the Provisions on the Registration of Enterprise Names. Chapter VIII Supplementary Provisions Article 54 If a service mark which had been used incessantly up to July 1, 1993 is identical or similar to the service mark that was registered for identical or similar services by any other person, it may continue to be used. However, if it had been ceased from use for up to 3 years after July 1, 1993, it may not continue to be used. Article 55 The detailed measures for the administration of trademark agency shall be separately formulated by the State Council. Article 56 The table of classification of commodities and services for the registration of trademarks shall be formulated and promulgated by the administrative department of industry and commerce under the State Council. The documentary formats for the application for trademark registrations or handling other trademark matters shall be formulated and promulgated by the administrative department of industry and commerce under the State Council. The rules for the appraisal of the Trademark Appraisal Committee shall be formulated and promulgated by the administrative department of industry and commerce under the State Council. Article 57 A Directory of Trademark Registration shall be prepared by the Trademark Office to record registered marks and other registration-related matters. The Trademark Office compiles and publishes the Trademark Announcements to publish trademark registrations and other relevant matters. Article 58 Fees shall be paid for the applications for trademark registration or for handling other trademark matters. The items and rates for paying fees shall be formulated and promulgated by the administrative department of industry and commerce under the State Council in collaboration with the administrative department of price affairs under the State Council. Article 59 The present Regulation shall enter into force as of September 15, 2002. The Detailed Rules for the Implementation of the Trademark Law of the People's Republic of China which was promulgated by the State Council on March 10, 1983 and amended upon the ratification of the State Council for the first time on January 3, 1988 and for the second time on July 15, 1993 as well as the Official Reply of the State Council on the Issue of Certificates to Be Attached for the Handling of Trademark Registrations which was published on April 23, 1995 shall be repealed concurrently.
Title (Chinese)
商标法实施条例
Body (Chinese)
中华人民共和国商标法实施条例国务院令第358号颁布日期：20020803 实施日期：20020915 颁布单位：国务院第一章 总则第二章 商标注册的申请第三章 商标注册申请的审查第四章 注册商标的变更、转让、续展第五章 商标评审第六章 商标使用的管理第七章 注册商标专用权的保护第八章 附则第一章 总则 第一条 根据《中华人民共和国商标法》（以下简称商标法），制定本条例。 第二条 本条例有关商品商标的规定，适用于服务商标。 第三条 商标法和本条例所称商标的使用，包括将商标用于商品、商品包装或者容器以及商品交易文书上，或者将商标用于广告宣传、展览以及其他商业活动中。 第四条 商标法第六条所称国家规定必须使用注册商标的商品，是指法律、行政法规规定的必须使用注册商标的商品。 第五条 依照商标法和本条例的规定，在商标注册、商标评审过程中产生争议时，有关当事人认为其商标构成驰名商标的，可以相应向商标局或者商标评审委员会请求认定驰名商标，驳回违反商标法第十三条规定的商标注册申请或者撤销违反商标法第十三条规定的商标注册。有关当事人提出申请时，应当提交其商标构成驰名商标的证据材料。 商标局、商标评审委员会根据当事人的请求，在查明事实的基础上，依照商标法第十四条的规定，认定其商标是否构成驰名商标。 第六条 商标法第十六条规定的地理标志，可以依照商标法和本条例的规定，作为证明商标或者集体商标申请注册。 以地理标志作为证明商标注册的，其商品符合使用该地理标志条件的自然人、法人或者其他组织可以要求使用该证明商标，控制该证明商标的组织应当允许。以地理标志作为集体商标注册的，其商品符合使用该地理标志条件的自然人、法人或者其他组织，可以要求参加以该地理标志作为集体商标注册的团体、协会或者其他组织，该团体、协会或者其他组织应当依据其章程接纳为会员；不要求参加以该地理标志作为集体商标注册的团体、协会或者其他组织的，也可以正当使用该地理标志，该团体、协会或者其他组织无权禁止。 第七条 当事人委托商标代理组织申请商标注册或者办理其他商标事宜，应当提交代理委托书。代理委托书应当载明代理内容及权限；外国人或者外国企业的代理委托书还应当载明委托人的国籍。 外国人或者外国企业的代理委托书及与其有关的证明文件的公证、认证手续，按照对等原则办理。 商标法第十八条所称外国人或者外国企业，是指在中国没有经常居所或者营业所的外国人或者外国企业。 第八条 申请商标注册或者办理其他商标事宜，应当使用中文。 依照商标法和本条例规定提交的各种证件、证明文件和证据材料是外文的，应当附送中文译文；未附送的，视为未提交该证件、证明文件或者证据材料。 第九条 商标局、商标评审委员会工作人员有下列情形之一的，应当回避，当事人或者利害关系人可以要求其回避： （一）是当事人或者当事人、代理人的近亲属的； （二）与当事人、代理人有其他关系，可能影响公正的； （三）与申请商标注册或者办理其他商标事宜有利害关系的。 第十条 除本条例另有规定的外，当事人向商标局或者商标评审委员会提交文件或者材料的日期，直接递交的，以递交日为准；邮寄的，以寄出的邮戳日为准；邮戳日不清晰或者没有邮戳的，以商标局或者商标评审委员会实际收到日为准，但是当事人能够提出实际邮戳日证据的除外。 第十一条 商标局或者商标评审委员会的各种文件，可以通过邮寄、直接递交或者其他方式送达当事人。当事人委托商标代理组织的，文件送达商标代理组织视为送达当事人。 商标局或者商标评审委员会向当事人送达各种文件的日期，邮寄的，以当事人收到的邮戳日为准；邮戳日不清晰或者没有邮戳的，自文件发出之日起满15日，视为送达当事人；直接递交的，以递交日为准。文件无法邮寄或者无法直接递交的，可以通过公告方式送达当事人，自公告发布之日起满30日，该文件视为已经送达。 第十二条 商标国际注册依照我国加入的有关国际条约办理。具体办法由国务院工商行政管理部门规定。第二章 商标注册的申请 第十三条 申请商标注册，应当按照公布的商品和服务分类表按类申请。每一件商标注册申请应当向商标局提交《商标注册申请书》1份、商标图样5份；指定颜色的，并应当提交着色图样5份、黑白稿1份。 商标图样必须清晰、便于粘贴，用光洁耐用的纸张印制或者用照片代替，长或者宽应当不大于10厘米，不小于5厘米。 以三维标志申请注册商标的，应当在申请书中予以声明，并提交能够确定三维形状的图样。 以颜色组合申请注册商标的，应当在申请书中予以声明，并提交文字说明。 申请注册集体商标、证明商标的，应当在申请书中予以声明，并提交主体资格证明文件和使用管理规则。 商标为外文或者包含外文的，应当说明含义。 第十四条 申请商标注册的，申请人应当提交能够证明其身份的有效证件的复印件。商标注册申请人的名义应当与所提交的证件相一致。 第十五条 商品名称或者服务项目应当按照商品和服务分类表填写；商品名称或者服务项目未列入商品和服务分类表的，应当附送对该商品或者服务的说明。 商标注册申请等有关文件，应当打字或者印刷。 第十六条 共同申请注册同一商标的，应当在申请书中指定一个代表人；没有指定代表人的，以申请书中顺序排列的第一人为代表人。 第十七条 申请人变更其名义、地址、代理人，或者删减指定的商品的，可以向商标局办理变更手续。 申请人转让其商标注册申请的，应当向商标局办理转让手续。 第十八条 商标注册的申请日期，以商标局收到申请文件的日期为准。申请手续齐备并按照规定填写申请文件的，商标局予以受理并书面通知申请人；申请手续不齐备或者未按照规定填写申请文件的，商标局不予受理，书面通知申请人并说明理由。 申请手续基本齐备或者申请文件基本符合规定，但是需要补正的，商标局通知申请人予以补正，限其自收到通知之日起30日内，按照指定内容补正并交回商标局。在规定期限内补正并交回商标局的，保留申请日期；期满未补正的，视为放弃申请，商标局应当书面通知申请人。 第十九条 两个或者两个以上的申请人，在同一种商品或者类似商品上，分别以相同或者近似的商标在同一天申请注册的，各申请人应当自收到商标局通知之日起30 日内提交其申请注册前在先使用该商标的证据。同日使用或者均未使用的，各申请人可以自收到商标局通知之日起30日内自行协商，并将书面协议报送商标局；不愿协商或者协商不成的，商标局通知各申请人以抽签的方式确定一个申请人，驳回其他人的注册申请。商标局已经通知但申请人未参加抽签的，视为放弃申请，商标局应当书面通知未参加抽签的申请人。 第二十条 依照商标法第二十四条规定要求优先权的，申请人提交的第一次提出商标注册申请文件的副本应当经受理该申请的商标主管机关证明，并注明申请日期和申请号。 依照商标法第二十五条规定要求优先权的，申请人提交的证明文件应当经国务院工商行政管理部门规定的机构认证；展出其商品的国际展览会是在中国境内举办的除外。第三章 商标注册申请的审查 第二十一条 商标局对受理的商标注册申请，依照商标法及本条例的有关规定进行审查，对符合规定的或者在部分指定商品上使用商标的注册申请符合规定的，予以初步审定，并予以公告；对不符合规定或者在部分指定商品上使用商标的注册申请不符合规定的，予以驳回或者驳回在部分指定商品上使用商标的注册申请，书面通知申请人并说明理由。 商标局对在部分指定商品上使用商标的注册申请予以初步审定的，申请人可以在异议期满之日前，申请放弃在部分指定商品上使用商标的注册申请；申请人放弃在部分指定商品上使用商标的注册申请的，商标局应当撤回原初步审定，终止审查程序，并重新公告。 第二十二条 对商标局初步审定予以公告的商标提出异议的，异议人应当向商标局提交商标异议书一式两份。商标异议书应当写明被异议商标刊登《商标公告》的期号及初步审定号。商标异议书应当有明确的请求和事实依据，并附送有关证据材料。 商标局应当将商标异议书副本及时送交被异议人，限其自收到商标异议书副本之日起30日内答辩。被异议人不答辩的，不影响商标局的异议裁定。 当事人需要在提出异议申请或者答辩后补充有关证据材料的，应当在申请书或者答辩书中声明，并自提交申请书或者答辩书之日起3个月内提交；期满未提交的，视为当事人放弃补充有关证据材料。 第二十三条 商标法第三十四条第二款所称异议成立，包括在部分指定商品上成立。异议在部分指定商品上成立的，在该部分指定商品上的商标注册申请不予核准。 被异议商标在异议裁定生效前已经刊发注册公告的，撤销原注册公告，经异议裁定核准注册的商标重新公告。 经异议裁定核准注册的商标，自该商标异议期满之日起至异议裁定生效前，对他人在同一种或者类似商品上使用与该商标相同或者近似的标志的行为不具有追溯力；但是，因该使用人的恶意给商标注册人造成的损失，应当给予赔偿。 经异议裁定核准注册的商标，对其提出评审申请的期限自该商标异议裁定公告之日起计算。第四章 注册商标的变更、转让、续展第二十四条 变更商标注册人名义、地址或者其他注册事项的，应当向商标局提交变更申请书。商标局核准后，发给商标注册人相应证明，并予以公告；不予核准的，应当书面通知申请人并说明理由。 变更商标注册人名义的，还应当提交有关登记机关出具的变更证明文件。未提交变更证明文件的，可以自提出申请之日起30日内补交；期满不提交的，视为放弃变更申请，商标局应当书面通知申请人。 变更商标注册人名义或者地址的，商标注册人应当将其全部注册商标一并变更；未一并变更的，视为放弃变更申请，商标局应当书面通知申请人。 第二十五条 转让注册商标的，转让人和受让人应当向商标局提交转让注册商标申请书。转让注册商标申请手续由受让人办理。商标局核准转让注册商标申请后，发给受让人相应证明，并予以公告。 转让注册商标的，商标注册人对其在同一种或者类似商品上注册的相同或者近似的商标，应当一并转让；未一并转让的，由商标局通知其限期改正；期满不改正的，视为放弃转让该注册商标的申请，商标局应当书面通知申请人。 对可能产生误认、混淆或者其他不良影响的转让注册商标申请，商标局不予核准，书面通知申请人并说明理由。 第二十六条 注册商标专用权因转让以外的其他事由发生移转的，接受该注册商标专用权移转的当事人应当凭有关证明文件或者法律文书到商标局办理注册商标专用权移转手续。 注册商标专用权移转的，注册商标专用权人在同一种或者类似商品上注册的相同或者近似的商标，应当一并移转；未一并移转的，由商标局通知其限期改正；期满不改正的，视为放弃该移转注册商标的申请，商标局应当书面通知申请人。 第二十七条 注册商标需要续展注册的，应当向商标局提交商标续展注册申请书。商标局核准商标注册续展申请后，发给相应证明，并予以公告。 续展注册商标有效期自该商标上一届有效期满次日起计算。第五章 商标评审 第二十八条 商标评审委员会受理依据商标法第三十二条、第三十三条、第四十一条、第四十九条的规定提出的商标评审申请。商标评审委员会根据事实，依法进行评审。 第二十九条 商标法第四十一条第三款所称对已经注册的商标有争议，是指在先申请注册的商标注册人认为他人在后申请注册的商标与其在同一种或者类似商品上的注册商标相同或者近似。 第三十条 申请商标评审，应当向商标评审委员会提交申请书，并按照对方当事人的数量提交相应份数的副本；基于商标局的决定书或者裁定书申请复审的，还应当同时附送商标局的决定书或者裁定书副本。 商标评审委员会收到申请书后，经审查，符合受理条件的，予以受理；不符合受理条件的，不予受理，书面通知申请人并说明理由；需要补正的，通知申请人自收到通知之日起30日内补正。经补正仍不符合规定的，商标评审委员会不予受理，书面通知申请人并说明理由；期满未补正的，视为撤回申请，商标评审委员会应当书面通知申请人。 商标评审委员会受理商标评审申请后，发现不符合受理条件的，予以驳回，书面通知申请人并说明理由。 第三十一条 商标评审委员会受理商标评审申请后，应当及时将申请书副本送交对方当事人，限其自收到申请书副本之日起30日内答辩；期满未答辩的，不影响商标评审委员会的评审。 第三十二条 当事人需要在提出评审申请或者答辩后补充有关证据材料的，应当在申请书或者答辩书中声明，并自提交申请书或者答辩书之日起3个月内提交；期满未提交的，视为放弃补充有关证据材料。 第三十三条 商标评审委员会根据当事人的请求或者实际需要，可以决定对评审申请进行公开评审。 商标评审委员会决定对评审申请进行公开评审的，应当在公开评审前15日书面通知当事人，告知公开评审的日期、地点和评审人员。当事人应当在通知书指定的期限内作出答复。 申请人不答复也不参加公开评审的，其评审申请视为撤回，商标评审委员会应当书面通知申请人；被申请人不答复也不参加公开评审的，商标评审委员会可以缺席评审。 第三十四条 申请人在商标评审委员会作出决定、裁定前，要求撤回申请的，经书面向商标评审委员会说明理由，可以撤回；撤回申请的，评审程序终止。 第三十五条 申请人撤回商标评审申请的，不得以相同的事实和理由再次提出评审申请；商标评审委员会对商标评审申请已经作出裁定或者决定的，任何人不得以相同的事实和理由再次提出评审申请。 第三十六条 依照商标法第四十一条的规定撤销的注册商标，其商标专用权视为自始即不存在。有关撤销注册商标的决定或者裁定，对在撤销前人民法院作出并已执行的商标侵权案件的判决、裁定，工商行政管理部门作出并已执行的商标侵权案件的处理决定，以及已经履行的商标转让或者使用许可合同，不具有追溯力；但是，因商标注册人恶意给他人造成的损失，应当给予赔偿。第六章 商标使用的管理 第三十七条 使用注册商标，可以在商品、商品包装、说明书或者其他附着物上标明"注册商标"或者注册标记。 注册标记包括（注外加○）和（Ｒ外加○）。使用注册标记，应当标注在商标的右上角或者右下角。 第三十八条 《商标注册证》遗失或者破损的，应当向商标局申请补发。《商标注册证》遗失的，应当在《商标公告》上刊登遗失声明。破损的《商标注册证》，应当在提交补发申请时交回商标局。 伪造或者变造《商标注册证》的，依照刑法关于伪造、变造国家机关证件罪或者其他罪的规定，依法追究刑事责任。 第三十九条 有商标法第四十四条第（一）项、第（二）项、第（三）项行为之一的，由工商行政管理部门责令商标注册人限期改正；拒不改正的，报请商标局撤销其注册商标。 有商标法第四十四条第（四）项行为的，任何人可以向商标局申请撤销该注册商标，并说明有关情况。商标局应当通知商标注册人，限其自收到通知之日起2个月内提交该商标在撤销申请提出前使用的证据材料或者说明不使用的正当理由；期满不提供使用的证据材料或者证据材料无效并没有正当理由的，由商标局撤销其注册商标。 前款所称使用的证据材料，包括商标注册人使用注册商标的证据材料和商标注册人许可他人使用注册商标的证据材料。 第四十条 依照商标法第四十四条、第四十五条的规定被撤销的注册商标，由商标局予以公告；该注册商标专用权自商标局的撤销决定作出之日起终止。 第四十一条 商标局、商标评审委员会撤销注册商标，撤销理由仅及于部分指定商品的，撤销在该部分指定商品上使用的商标注册。 第四十二条 依照商标法第四十五条、第四十八条的规定处以罚款的数额为非法经营额20％以下或者非法获利2倍以下。 依照商标法第四十七条的规定处以罚款的数额为非法经营额10％以下。 第四十三条 许可他人使用其注册商标的，许可人应当自商标使用许可合同签订之日起3个月内将合同副本报送商标局备案。 第四十四条 违反商标法第四十条第二款规定的，由工商行政管理部门责令限期改正；逾期不改正的，收缴其商标标识；商标标识与商品难以分离的，一并收缴、销毁。 第四十五条 使用商标违反商标法第十三条规定的，有关当事人可以请求工商行政管理部门禁止使用。当事人提出申请时，应当提交其商标构成驰名商标的证据材料。经商标局依照商标法第十四条的规定认定为驰名商标的，由工商行政管理部门责令侵权人停止违反商标法第十三条规定使用该驰名商标的行为，收缴、销毁其商标标识；商标标识与商品难以分离的，一并收缴、销毁。 第四十六条 商标注册人申请注销其注册商标或者注销其商标在部分指定商品上的注册的，应当向商标局提交商标注销申请书，并交回原《商标注册证》。 商标注册人申请注销其注册商标或者注销其商标在部分指定商品上的注册的，该注册商标专用权或者该注册商标专用权在该部分指定商品上的效力自商标局收到其注销申请之日起终止。 第四十七条 商标注册人死亡或者终止，自死亡或者终止之日起1年期满，该注册商标没有办理移转手续的，任何人可以向商标局申请注销该注册商标。提出注销申请的，应当提交有关该商标注册人死亡或者终止的证据。 注册商标因商标注册人死亡或者终止而被注销的，该注册商标专用权自商标注册人死亡或者终止之日起终止。 第四十八条 注册商标被撤销或者依照本条例第四十六条、第四十七条的规定被注销的，原《商标注册证》作废；撤销该商标在部分指定商品上的注册的，或者商标注册人申请注销其商标在部分指定商品上的注册的，由商标局在原《商标注册证》上加注发还，或者重新核发《商标注册证》，并予公告。第七章 注册商标专用权的保护 第四十九条 注册商标中含有的本商品的通用名称、图形、型号，或者直接表示商品的质量、主要原料、功能、用途、重量、数量及其他特点，或者含有地名，注册商标专用权人无权禁止他人正当使用。 第五十条 有下列行为之一的，属于商标法第五十二条第（五）项所称侵犯注册商标专用权的行为： （一）在同一种或者类似商品上，将与他人注册商标相同或者近似的标志作为商品名称或者商品装潢使用，误导公众的； （二）故意为侵犯他人注册商标专用权行为提供仓储、运输、邮寄、隐匿等便利条件的。 第五十一条 对侵犯注册商标专用权的行为，任何人可以向工商行政管理部门投诉或者举报。 第五十二条 对侵犯注册商标专用权的行为，罚款数额为非法经营额3倍以下；非法经营额无法计算的，罚款数额为10万元以下。 第五十三条 商标所有人认为他人将其驰名商标作为企业名称登记，可能欺骗公众或者对公众造成误解的，可以向企业名称登记主管机关申请撤销该企业名称登记。企业名称登记主管机关应当依照《企业名称登记管理规定》处理。第八章 附则第五十四条 连续使用至1993年7月1日的服务商标，与他人在相同或者类似的服务上已注册的服务商标相同或者近似的，可以继续使用；但是，1993年7月1日后中断使用3年以上的，不得继续使用。 第五十五条 商标代理的具体管理办法由国务院另行规定。 第五十六条 商标注册用商品和服务分类表，由国务院工商行政管理部门制定并公布。 申请商标注册或者办理其他商标事宜的文件格式，由国务院工商行政管理部门制定并公布。 商标评审委员会的评审规则由国务院工商行政管理部门制定并公布。 第五十七条 商标局设置《商标注册簿》，记载注册商标及有关注册事项。 商标局编印发行《商标公告》，刊登商标注册及其他有关事项。 第五十八条 申请商标注册或者办理其他商标事宜，应当缴纳费用。缴纳费用的项目和标准，由国务院工商行政管理部门会同国务院价格主管部门规定并公布。 第五十九条 本条例自2002年9月15日起施行。1983年3月10日国务院发布、1988年1月3日国务院批准第一次修订、1993年7月15日国务院批准第二次修订的《中华人民共和国商标法实施细则》和1995年4月23日《国务院关于办理商标注册附送证件问题的批复》同时废止。