Regulation on the Implementation of the Trademark Law of the People's Republic of China (2014 Revision)

Regulation on the Implementation of the Trademark Law of the People's Republic of China (2014 Revision) Order of the State Council of the People's Republic of China (No. 651) The Regulation on the Implementation of the Trademark Law of the People's Republic of China, as revised, is hereby issued, and shall come into force on May 1, 2014. Premier: Li Keqiang April 29, 2014 Regulation on the Implementation of the Trademark Law of the People's Republic of China (Issued by Order No. 358 of the State Council of the People's Republic of China on August 3, 2002, and revised by Order No. 651 of the State Council of the People's Republic of China on April 29, 2014) Chapter I General Provisions Article 1 This Regulation is developed in accordance with the Trademark Law of the People's Republic of China (hereinafter referred to as the “ Trademark Law ”). Article 2 The provisions of this Regulation governing goods trademarks shall also apply to service trademarks. Article 3 To request well-known trademark protection under Article 13 of the Trademark Law , a trademark holder shall submit evidential materials proving that the trademark is a well-known trademark. As needed for trying or handling the case, the Trademark Office and the Trademark Appeal Board shall, based on the evidential materials submitted by the party, determine whether the trademark is a well-known trademark in accordance with Article 14 of the Trademark Law . Article 4 The geographic indications as mentioned in Article 16 of the Trademark Law may be registered upon application as certification marks or collective marks in accordance with the Trademark Law and this Regulation. Where a geographic indication is registered as a certification mark, any natural person, legal person or other organization whose goods satisfy the conditions for using the geographic indication may request the use of the certification mark, and the organization which controls the certification mark shall permit the use. Where a geographic indication is registered as a collective mark, any natural person, legal person or other organization whose goods satisfy the conditions for using the geographic indication may file a request for joining the group, association or other organization which has registered the geographic indication as a collective mark, and the group, association or other organization shall accept the natural person, legal person or other organization as a member according to its bylaws; or if the natural person, legal person or other organization chooses not to file a request for joining the group, association or other organization which has registered the geographic indication as a collective mark, the natural person, legal person or other organization is entitled to legitimately use the geographic indication, and the group, association or other organization has no right to prohibit the use. Article 5 Where a party authorizes a trademark agency to apply for trademark registration or handle other trademark matters, a power of attorney shall be submitted, stating the authorized matters and the limit of power. If the client is a foreign national or a foreign enterprise, the power of attorney shall also state the client's nationality. The principle of reciprocity shall apply to the notarization and authentication requirements for the powers of attorney of foreign nationals or foreign enterprises and other relevant certification documents. In an application for trademark registration or assignment, if the applicant or assignee is a foreign national or a foreign enterprise, a recipient within the territory of China shall be designated in the application form to receive the legal documents issued by the Trademark Office and the Trademark Appeal Board on subsequent trademark matters. The Trademark Office and the Trademark Appeal Board shall serve the legal documents on subsequent trademark matters upon the recipient within the territory of China. The foreign national or foreign enterprise as mentioned in Article 18 of the  Trademark Law means a foreign national or a foreign enterprise which does not have a habitual residence or business premises within China. Article 6 The Chinese language shall be used in the application for trademark registration or in the handling of other trademark matters. If any of the certificates, certification documents or evidential materials submitted under the Trademark Law and this Regulation is in a foreign language, a Chinese version shall be attached thereto; otherwise, the certificate, certification document or evidential material shall not be deemed to have been submitted. Article 7 A staff member of the Trademark Office or the Trademark Appeal Board shall disqualify himself or herself, and a party or an interested party may request disqualification of the staff member: (1) The staff member is a party or is a near relative of a party or the agent thereof. (2) The staff member has any other relation with a party or the agent thereof, which may affect impartiality. (3) The staff member has an interest in the application for trademark registration or in the handling of other trademark matters. Article 8 Where a trademark registration application and other relevant documents are filed in the form of data message as mentioned in Article 22 of the Trademark Law , they shall be filed on the Internet in accordance with the rules of the Trademark Office or the Trademark Appeal Board. Article 9 Except under the circumstances described in Article 18 of this Regulation, the date of submitting documents or materials by a party to the Trademark Office or the Trademark Appeal Board shall be the date of delivery if they are directly delivered by the party to the latter; the postmark date when the mail is sent if they are posted; or the day when the Trademark Office or the Trademark Appeal Board actually receives them if the postmark date is unclear or there is no postmark, unless the party is able to provide evidence on the actual postmark date. If they are delivered through an express delivery enterprise other than a postal enterprise, the date of submission shall be the day when the package is accepted by the express delivery enterprise; or the day when they are actually received by the Trademark Office or the Trademark Appeal Board if the date of acceptance of the package is not clear, unless the party is able to provide evidence on the actual date of acceptance of the package. If they are submitted in the form of data message, the date of submission shall be the day when the data message enters the electronic system of the Trademark Office or the Trademark Appeal Board. When posting documents to the Trademark Office or the Trademark Appeal Board, a party shall use registered mail. For documents submitted by a party to the Trademark Office or the Trademark Appeal Board in writing, the documents recorded in the archives of the Trademark Office or the Trademark Appeal Board shall prevail; and, for documents submitted in the form of data message, the documents recorded in the database of the Trademark Office or the Trademark Appeal Board shall prevail, unless the party has evidence to prove that the records in the archives or database of the Trademark Office or the Trademark Appeal Board are erroneous. Article 10 The documents of the Trademark Office or the Trademark Appeal Board may be served upon a party by post, by direct delivery, in the form of data message, or by any other means. If the form of data message is adopted, the prior consent of the party shall be obtained. If the party has appointed a trademark agency for this purpose, the documents shall be deemed to have been served upon the party once they are served upon the trademark agency. The date of service of the documents of the Trademark Office or the Trademark Appeal Board upon a party shall be the postmark date when they are received by the party if they are served by post; the documents shall be deemed to have been served upon the party after 15 days from the day when they are posted if the postmark date is unclear or there is no postmark, unless the party is able to prove the actual date of receipt; the date of service shall be the date of delivery if the documents are directly delivered by the Trademark Office or the Trademark Appeal Board upon the party; the documents shall be deemed to have been served upon the party after 15 days from the day when they are sent if the documents are served in the form of data message, unless the party is able to prove the date when the documents enter the electronic system of the party. If it is impossible to serve the documents by any of the aforesaid methods, they may be served by publication, and the documents shall be deemed to have been served upon the party after 30 days from the day when they are published. Article 11 The following periods of time shall not be counted in the time limit for the examination or the trial of trademark matters: (1) The time of serving the documents of the Trademark Office or the Trademark Appeal Board by publication. (2) The time for a party to provide additional evidence or supplement and correct documents and the time for submitting a new statement of defense as a result of the change of a party. (3) The time needed for submitting evidence on use, negotiating, and drawing lots, when there are applications submitted on the same day for registration of the same trademark. (4) The time of waiting for the determination of the right of priority. (5) The time of waiting for the results of another case involving prior rights upon request of the applicant in the process of examination or trial. Article 12 Except under the circumstances described in paragraph 2 hereof, the commencing date of any time limit as mentioned in the Trademark Law or this Regulation shall not be included in the time limit. If the time limit is calculated by year or month, it shall expire on the corresponding day of the last month; if the corresponding day does not exist in the last month, it shall expire on the last day of the last month; or if the expiry date of a time limit falls on a holiday, the time limit shall expire on the first working day after the holiday. The period of validity of a registered trademark as mentioned in Articles 39 and 40 of the Trademark Law shall commence from a statutory date, and expire on the day before the corresponding day in the last month of the period of validity. If the corresponding day does not exist in the last month, the last day of the last month shall be the expiry date. Chapter II Applications for Trademark Registration Article 13 An application for trademark registration shall be prepared according to the published table of classification of commodities and services. For each trademark registration application, the applicant shall submit to the Trademark Office one copy of the Application Form for Trademark Registration and one copy of the trademark design; and, if it applies for registering a color combination or colored design as a trademark, the colored design and one copy of the black and white design; or if no color is specified, the black and white design. The trademark designs shall be clear, easy to paste, printed on clean and durable paper or recorded in photographs, and in a size of not less than five centimeters but not more than ten centimeters in length and width. Where an application is filed for registering a three-dimensional symbol as a trademark, it shall be stated in the application, the instructions for use of the trademark shall be provided, and a design including, at a minimum, the three-view drawing shall be submitted based on which the three-dimensional shape could be determined. Where an application is filed for registering a combination of colors as a trademark, it shall be stated in the application, and the instructions for use of the trademark shall be provided. Where an application is filed for registering a sound trademark, it shall be stated in the application, a sound sample that meets the prescribed requirements shall be submitted, a description of the sound mark to be registered shall be provided, and the instructions for use of the trademark shall be provided. In addition to a textual description of the sound mark, the stave or numbered musical notation shall be used to describe the sound to be registered as a trademark; or if it is impossible to describe the sound mark with the stave or numbered musical notation, a textual description shall be provided. The trademark description shall be consistent with the sound sample. Where an application is filed for registering a collective trademark or a certification mark, it shall be stated in the application, and a certification document on the eligibility of the applicant and the use management rules shall be submitted. Where a trademark is in a foreign language or involves a foreign language, its meaning shall be explained. Article 14 To apply for trademark registration, an applicant shall submit its identity certificate. The name of the trademark registration applicant shall be identical with that indicated in the certificate submitted. The preceding paragraph on an applicant's submission of its identity certificate shall apply to the handling of other trademark matters with the Trademark Office such as modification, assignment, renewal, opposition, and cancellation. Article 15 The name of the goods or service shall be entered according to the class number and name indicated in the table of classification of commodities and services. Where the name of the goods or service is not included in the table of classification of goods and services, a description of the goods or service shall be attached. The trademark registration applications and other relevant documents submitted in paper form shall be typewritten or printed. Paragraph 2 hereof shall apply to the handling of other trademark matters. Article 16 To jointly apply for registration of the same trademark or to handle other matters concerning a co-owned trademark, a representative shall be designated in the application. If no representative is designated, the first applicant named in the application shall be the representative. The documents of the Trademark Office and the Trademark Appeal Board shall be served upon the representative. Article 17 Where an applicant changes its name, address, agent, or document recipient, or removes any of the designated goods, it shall undergo the modification procedure with the Trademark Office. Where an applicant transfers its application for trademark registration, it shall undergo the transfer procedure with the Trademark Office. Article 18 The date of application for trademark registration shall be the day when the Trademark Office receives the application documents. If all the application materials are submitted, the application documents are completed as required, and fees are paid, the Trademark Office shall accept the application, and notify the applicant in writing of the acceptance; or, if not all the application materials are submitted, any application document is not completed as required, or fees are not paid, the Trademark Office shall reject the application, and notify the applicant in writing of the rejection and the reasons for the rejection. If basically all the application materials are submitted or the application documents basically satisfy the relevant requirements, but any supplement or correction is needed, the Trademark Office shall notify the applicant of the supplement or correction, and require the applicant to make the designated supplement or correction and send the supplemented or corrected application documents back to the Trademark Office within 30 days of receipt of the notice. If the application documents are supplemented or corrected and sent back to the Trademark Office within the prescribed time limit, the original date of application shall be maintained; or if the applicant fails to make the supplement or correction within the prescribed time limit or as required, the Trademark office shall reject the application, and notify the applicant in writing of the rejection. The conditions for accepting an application in paragraph 2 hereof shall apply to the handling of other trademark matters. Article 19 Where two or more applicants apply for registration of identical or similar trademarks on identical or similar goods on the same day, each applicant shall submit evidence on its prior use of the trademark before application within 30 days of receipt of a notice from the Trademark Office. If the applicants use the trademarks on the same day or none of them has ever used the trademarks, the applicants may, within 30 days of receipt of a notice from the Trademark Office, conduct consultation, and submit their written agreement to the Trademark Office; or, if they are unwilling to conduct consultation or such consultation fails, the Trademark Office shall notify the applicants that one applicant shall be determined by drawing lots and the registration applications of others shall be dismissed. Where any applicant fails to draw lots after being notified by the Trademark Office, the applicant shall be deemed to have forgone its application, and the Trademark Office shall notify the applicant in writing of it. Article 20 To claim the right of priority under Article 25 of the Trademark Law , the duplicates of the application documents for trademark registration filed by the applicant for the first time shall be certified by the trademark authority accepting the application, and state the application date and number. Chapter III Examination of Trademark Registration Applications Article 21 The Trademark Office shall, according to the relevant provisions of the Trademark Law and this Regulation, examine a trademark registration application accepted, and grant an initial approval to the application and publish the initial approval if the application meets the prescribed requirements or if the application only meets the prescribed requirements for registration of the trademark on a part of the designated goods. If the application fails to meet the prescribed requirements or the application only fails to meet the prescribed requirements for registration of the trademark on a part of the designated goods, the Trademark Office shall refuse the application or refuse the application for registration of the trademark on the part of the designated goods, and notify the applicant in writing of the refusal and the reasons for the refusal. Article 22 Where the Trademark Office refuses an application for trademark registration on a part of the designated goods, the applicant may file a divisional application for the part which has been granted initial approval, and the date of application of the divisional application shall be the same as that of the parent application. If necessary, the applicant shall file an application for division with the Trademark Office within 15 days of receipt of the Notice on Partial Refusal of a Trademark Registration Application. After receiving the application for division, the Trademark Office shall divide the original application into two pieces, assign a new application number to the divisional application which has been granted initial approval, and publish ......