Trademark Law of the People's Republic of China (2019 Amendment)

Trademark Law of the People's Republic of China (2019 Amendment) Trademark Law of the People's Republic of China (Adopted at the 24th Session of the Standing Committee of the Fifth National People's Congress on August 23, 1982; amended for the first time according to the Decision on Amending the Trademark Law of the People's Republic of China as adopted at the 30th Session of the Standing Committee of the Seventh National People's Congress on February 22, 1993; amended for the second time according to the Decision on Amending the Trademark Law of the People's Republic of China as adopted at the 24th Session of the Standing Committee of the Ninth National People's Congress on October 27, 2001; amended for the third time according to the Decision on Amending the Trademark Law of the People's Republic of China as adopted at the 4th Session of the Standing Committee of the Twelfth National People's Congress on August 30, 2013; and amended for the fourth time in accordance with the Decision to Amend Eight Laws Including the Construction Law of the People's Republic of China adopted at the 10th Session of the Standing Committee of the Thirteenth National People's Congress of the People's Republic of China on April 23, 2019) Table of Contents Chapter I General Provisions Chapter II Application for Trademark Registration Chapter III Trademark Registration Examination and Approval Chapter IV Renewal, Modification, Assignment and Licensing of Registered Trademarks Chapter V Declaration of Invalidation of Registered Trademarks Chapter VI Administration of the Use of Trademarks Chapter VII Protection of the Right to Exclusively Use a Registered Trademark Chapter VIII Supplementary Provisions Chapter I General Provisions Article 1 This Law is formulated for the purposes of strengthening trademark administration, protecting the right to exclusively use a trademark, urging producers and dealers to guarantee the quality of goods and services, maintaining the reputation of trademarks, protecting the interests of consumers, producers and dealers, and promoting the development of the socialist market economy. Article 2 The Trademark Office of the administrative department for industry and commerce under the State Council shall take charge of trademark registration and administration across the country. The administrative department for industry and commerce under the State Council shall establish a Trademark Appeal Board responsible for resolving trademark disputes. Article 3 Registered trademarks are trademarks approved to be registered by the Trademark Office, including goods trademarks, service trademarks, collective marks, and certification marks. A trademark registrant shall have the right to exclusively use the registered trademark, which is protected by law. For the purposes of this Law, “collective mark” means a mark registered in the name of a group, an association, or any other organization for the members of the organization to use in commercial activities to indicate their memberships in the organization. For the purposes of this Law, “certification mark” means a mark controlled by an organization with supervising power over certain kind of goods or services but used by entities or individuals other than the organization on their goods or services to certificate the origins, raw materials, manufacturing methods, quality, or other specific characteristics of the goods or services. Special matters concerning the registration and administration of collective marks and certification marks shall be provided for by the administrative department for industry and commerce under the State Council. Article 4 Any natural person, legal person, or other organization needing to acquire the right to exclusively use a trademark on the goods or services thereof in the course of business operations shall apply to the Trademark Office for trademark registration. A bad faith application for trademark registration for a purpose other than use shall be rejected. The provisions of this Law regarding goods trademarks are applicable to service trademarks. Article 5 Two or more natural persons, legal persons, or other organizations may jointly apply to the Trademark Office for the registration of the same trademark, and jointly own and exercise the right to exclusively use the registered trademark. Article 6 Where a registered trademark must be used on the goods prescribed by any law or administrative regulation, trademark registration must be applied for, and such goods may not be marketed without approval of trademark registration. Article 7 In the application for registration or use of a trademark, the principle of good faith shall be followed. 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 trademark administration, interdict consumer frauds. Article 8 Any sign capable of distinguishing the goods of a natural person, a legal person, or any other organization from those of others, including but not limited to word, design, letter, numeral, three-dimensional symbol, combination of colors, and sound, as well as a combination of the above, may serve as a trademark for registration application. Article 9 The trademark for registration shall be distinctive for easy identification, and may not be in conflict with any prior legal rights acquired by others. A trademark registrant shall have the right to use the words “registered trademark” or a sign standing for registration. Article 10 The following signs may not be used as trademarks: (1) A sign identical with or similar to the name, national flag, national emblem, national anthem, military flag, military emblem, military anthem, or decorations, among others, of the People's Republic of China or identical with the name or symbol of a central state organ, the name of specific place where it is located, or the name or design of its landmark building. (2) A sign identical with or similar to the name, national flag, national emblem, or military flag, among others, of a foreign country, except as permitted by the government of the foreign country. (3) A sign identical with or similar to the name, flag, or emblem of an international intergovernmental organization, except as permitted by the organization or except that it will usually not mislead the public. (4) A sign identical with or similar to an official sign or an inspection mark which indicates control or provides guarantee, except as authorized. (5) A sign identical with or similar to the name or sign of the Red Cross or the Red Crescent. (6) A sign bearing ethnic discrimination. (7) A sign which is deceptive and easily misleads the public regarding the quality or origin of goods. (8) Signs detrimental to socialist morality or mores or having any other adverse effect. The name of any administrative division at or above the county level or the name of any foreign place known by the public may not be used as a trademark, except that the place name has other meanings or is used as a part of a collective mark or certification mark. Existing registered trademarks using place names shall continue to be valid. Article 11 The following signs may not be registered as trademarks: (1) A sign only bearing the generic name, design, or model of the goods. (2) A sign only directly indicating the quality, main raw materials, functions, uses, weight, quantity, or other features of goods. (3) Other signs lacking distinctiveness. If a sign listed in the preceding paragraph has obtained distinctiveness through use and can be easily identified, it may be registered as a trademark. Article 12 Where the registration of a three dimensional trademark is applied for, it shall not be registered if it is only a shape resulting from the nature of the goods, a shape of the goods necessary for achieving a technical effect, or a shape to add a substantive value to the goods. Article 13 The holder of a trademark well known by the relevant public may file a request for well-known trademark protection under this Law if believing that there is any infringement upon its rights. Where a trademark for registration to be used on identical or similar goods is a copy, imitation, or translation of a well-known trademark of another party which has not been registered in China and may easily cause confusion, it shall not be registered and shall be prohibited from use. Where a trademark for registration to be used on different or dissimilar goods is a copy, imitation, or translation of a well-known trademark of another party which has been registered in China, misleads the public, and may cause damage to the interests of the registrant of the well-known trademark, it shall not be registered and shall be prohibited from use. Article 14 Whether a trademark is a well-known trademark shall be determined upon request of a party as a fact to be found in the handling of a trademark case. The following factors shall be taken into account in the determination of a well-known trademark: (1) Reputation of the trademark to the relevant public. (2) Duration of the use of the trademark. (3) Duration, extent, and geographical area of any publicity of the trademark. (4) Records of protection of the trademark as a well-known trademark. (5) Other factors relevant to the determination of a well-known trademark. Where a party files a claim under Article 13 of this Law in the process of trademark registration examination or in the process of investigation of a trademark violation case by the administrative department for industry and commerce, the Trademark Office may determine whether the trademark is a well-known trademark if it is necessary for examination or handling the case. Where a party files a claim under Article 13 of this Law in the process of resolution of a trademark dispute, the Trademark Appeal Board may determine whether the trademark is a well-known trademark if it is necessary for handling the case. Where a party files a claim under Article 13 of this Law in the trial of a civil or administrative case involving trademark, the people's court designated by the Supreme People's Court may determine whether the trademark is a well-known trademark if it is necessary for trying the case. Producers and dealers may not use the words “well-known trademark” on their goods and the packages or containers of their goods or for advertisements, exhibitions, and other commercial activities. Article 15 Where an agent or a representative applies for registration of a trademark of the principal or the represented party in the agent's or the representative's own name without authorization, the trademark shall not be registered and shall be prohibited from use upon opposition from the principal or the represented party. Where an applicant for registration of a trademark identical with or similar to an unregistered trademark in prior use by another party on identical or similar goods has any contractual, business or other relationship except the relationship described in the preceding paragraph with the other party and knows the existence of the unregistered trademark, the trademark shall not be registered upon opposition from the other party. Article 16 Where a trademark contains a geographic indication of the goods but the goods do not originate from the region indicated thereon, thus misleading the public, the trademark shall not be registered and shall be prohibited from use; however, those that have been registered in good faith shall continue to be valid. The geographic indication as mentioned in the preceding paragraph means a sign that indicates the region where the goods originate and the natural or human dimensions of which primarily decide the specific quality, reputation, or other features of the goods. Article 17 Where a foreign national or a foreign enterprise applies for trademark registration in China, it shall be handled in accordance with an agreement concluded between the applicant's country and the People's Republic of China or an international treaty acceded to by both countries or according to the principle of reciprocity. Article 18 An applicant may apply for trademark registration and handle other trademark-related matters by itself or through a legally formed trademark agency authorized by it. A foreign national or a foreign enterprise intending to apply for trademark registration and handle other trademark-related matters in China shall authorize a legally formed trademark agency to do so. Article 19 Trademark agencies shall follow the principle of good faith, abide by laws and administrative regulations, handle trademark registration applications and other trademark-related matters as authorized by clients, and maintain confidential clients' trade secrets known in acting for clients. Where the trademark registration applied for by a client may be denied for any circumstances as described in this Law, a trademark agency shall clearly notify the client thereof. Where a trademark agency knows or should have known that a client's trademark registration application falls under any circumstances as described in Articles 4, 15 and 32 of this Law, it may not accept the client's authorization. Trademark agencies may not apply for registration of trademarks other than those applied for in acting for clients. Article 20 A trademark agency association shall, according to its bylaws, strictly implement the membership conditions, and take disciplinary actions against members violating the self-regulatory rules of the sector. A trademark agency association shall disclose information on its new members and the disciplinary actions taken against its members to the public in a timely manner. Article 21 International registration of trademarks shall comply with the rules established by the relevant international treaties concluded or acceded to by the People's Republic of China, and the specific measures shall be developed by the State Council. Chapter II Application for Trademark Registration Article 22 A trademark registration applicant shall, according to the prescribed classification of goods, enter the class and designation of goods on which the trademark is to be used, and file an application for registration. A trademark registration applicant may, in a single application, apply for registration of the same trademark on goods of different classes. Trademark registration applications and other relevant documents may be filed in written or data message form. Article 23 Where a registered trademark needs to be exclusively used on any goods beyond the approved scope of use, a separate application for registration shall be filed. Article 24 Where any sign of a registered trademark needs to be modified, a new application for registration shall be filed. Article 25 Where, within six months from the day when a trademark registration applicant firstly filed an application for registration of a trademark in a foreign country, it applies for registration in China of the same trademark to the used on identical goods, it may enjoy priority according to an agreement concluded between the foreign country and the People's Republic of China or an international treaty acceded to by both countries, or on the principle of mutual acknowledgement of the right of priority. To claim priority under the preceding paragraph, the applicant shall file a written declaration when filing an application for trademark registration and, within three months, submit a duplicate of the application documentation firstly filed; an applicant failing to file the written declaration or failing to submit the duplicate of application docum......