TRADEMARK LAW OF THE P.R.C

(Adopted 30/8/13 – Effective May 2014)
(Adopted at the 24th Session of the Standing Committee of the Fifth National People’s Congress on 23 August 1982, revised for the first time according to the Decision on the Amendment of the Trademark Law of the People’s Republic of China adopted at the 30th Session of the Standing Committee of the Seventh National People’s Congress, on 22 February 1993, revised for the second time according to the Decision on the Amendment of the Trademark Law of the People’s Republic of China adopted at the 24th Session of the Standing Committee of the Ninth National People’s Congress on 27 October 2001, and revised for the third time according to the Decision on the Amendment of the Trademark Law of the People’s Republic of China adopted at the 4th Session of the Standing Committee of the Twelfth National People’s Congress on 30 August 2013.)

Contents
Chapter I General Provisions
Chapter II Application for Trademark Registration
Chapter III Examination for and Approval of Trademark Registration
Chapter IV Renewal, Alteration, Assignment and Licensing of Registered Trademarks
Chapter V Declaration of Invalidity of Registered Trademarks
Chapter VI Administration of the Use of Trademarks
Chapter VII Protection of the Right to Exclusive Use of a Registered Trademark
Chapter VIII Supplementary Provisions

Chapter I General Provisions

Article 1 This Law is enacted for the purpose of improving the administration of trademarks, protecting the exclusive right to use trademarks, and encouraging producers and operators to guarantee the quality of their goods and services and to maintain the reputation of their trademarks, with a view to protecting the interests of consumers, producers and operators and to promoting the development of the socialist market economy.

Article 2 The Trademark Office of the administrative authority for industry and commerce under the State Council shall be responsible for the registration and administration of trademarks throughout the country.
The Trademark Review and Adjudication Board, established under the administrative authority for industry and commerce under the State Council, shall be responsible for handling matters of trademark disputes.

Article 3 Registered trademarks mean trademarks that have been approved and registered by the Trademark Office, including trademarks, service marks, collective marks and certification marks; the trademark registrants shall enjoy the exclusive right to use the trademarks, and be protected by law.

Said collective marks mean signs which are registered in the name of bodies, associations or other organizations to be used by the members thereof in their commercial activities to indicate their membership of the organizations.

Said certification marks mean signs which are controlled by organizations capable of supervising some goods or services and used by entities or individual persons outside the organization for their goods or services to certify the origin, material, mode of manufacture, quality or other characteristics of the goods or services.

Regulations for the particular matters of registration and administration of collective and certification marks shall be established by the administrative authority for industry and commerce under the State Council.

Article 4 Where any natural person, legal person or other organization, in the course of his or its production or business operations, intends to acquire the exclusive right to use a trademark for his or its goods or services, an application should be filed with the Trademark Office for registration of the trademark.
The provisions set forth in this Law concerning trademarks shall apply to service marks.

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

Article 6 As for any of such goods, as prescribed by the laws or administrative regulations, that must bear a registered trademark, a trademark registration must be applied for. Where no trademark registration has been granted, such goods shall not be marketed.

Article 7 The application for registration and the use of a trademark shall be made in good faith.
Any user of a trademark shall be responsible for the quality of the goods in respect of which the trademark is used. The administrative authorities for industry and commerce at different levels shall, through the administration of trademarks, stop any practice that deceives consumers.

Article 8 In respect of any sign capable of distinguishing the goods or service of one natural person, legal entity or any other organization from those of others, including any words, designs, letters of an alphabet, numerals, three-dimensional symbols, combinations of colors, sounds, etc., and their combination, an application may be filed for registration.

Article 9 Any trademark in respect of which an application for registration is filed shall be so distinctive as to be distinguishable, and shall not conflict with any prior legitimate right acquired by another person.
A trademark registrant has the right to use the words of “registered trademark” or a symbol to indicate that his trademark is registered.

Article 10 The following signs shall not be used as a trademark:
(1) those identical with or similar to the State name, national flag, national emblem, national anthem, military flag, military emblem, military song, or medals, etc., of the People’s Republic of China, and those identical with the name or the symbol of the central organizations of the State or the Party, as well as the name of the specific place where the central organizations of the State or the Party are located or the name, device of any symbolic building of the place;
(2) those identical with or similar to the State name, national flag, national emblem, or military flag, etc., of any foreign countries, except that the foreign state government agrees otherwise on the use;
(3) those identical with or similar to the name, flag, or emblem, etc., of any international intergovernmental organization, except that the organizations agree otherwise on the use or that it is not easy for the use to mislead the public;
(4) those identical with or similar to official signs and hallmarks, showing official control or warranty by them, except that the use thereof is otherwise authorized;
(5) those identical with or simi1ar to the symbols or names of the Red Cross or the Red Crescent;
(6) those having the nature of discrimination against any nationality;
(7) those deceptive, which are likely to mislead the public to misidentify the quality or other characteristics or place of origin of the goods; and
(8) those detrimental to socialist morals or customs, or having other unhealthy influences.
The geographical names of the administrative divisions at or above the county level and the foreign geographical names well known to the public shall not be used as trademarks, but those geographical names having otherwise meanings or serving as component part of a collective mark or certification mark shall be exclusive. Where a trademark using any of the above-mentioned geographical names has been approved and registered, it shall continue to be valid.

Article 11 The following signs shall not be registered as trademarks:
(1) those only comprised of generic names, designs or models of the goods in respect of which the trademarks are used;
(2) those having direct reference to the quality, main raw materials, function, use, weight, quantity or other features of the goods in respect of which the trademarks are used; and
(3) others lacking distinctive features.
The signs under the preceding paragraphs may be registered as trademarks where they have acquired the distinctive features through use and become readily identifiable.

Article 12 Where an application is filed for registration of a three-dimensional sign as a trademark, any shape derived from the goods itself, required for obtaining the technical effect, or giving the goods substantive value, shall not be registered.

Article 13 Where the owner of a trademark that is known by the relevant public believes that his right is being infringed, he may request the protection of the well-known trademark in accordance with the provisions of this law.
Where a trademark in respect of which the application for registration is filed for use for identical or similar goods is a reproduction, imitation or translation of another person’s well-known trademark not registered in China and likely to cause confusion, it shall be rejected for registration and prohibited from use.
Where a trademark in respect of which the application for registration is filed for use for non-identical or dissimilar goods is a reproduction, imitation or translation of the another person’s well-known trademark that has been registered in China, misleads the pub1ic and is likely to create prejudice to the interests of the registrant of the well-known trademark, it shall be rejected for registration and prohibited from use.

Article 14 A well-known trademark shall be recognized at the request of the party concerned in a trademark-related case where the recognition decision is a necessary fact of the case. The following factors shall be taken into account in the establishment of a well-known trademark:
(1) reputation of the mark to the relevant public;
(2) time for continued use of the mark;
(3) consecutive time, extent and geographical area of advertisement of the mark;
(4) records of protection of the mark as a well-known mark; and
(5) any other factors relevant to the reputation of the mark.
The Trademark Office, upon the request of the party concerned as per the prescription of Article 13 of this Law, may recognize the well-known trademark status in the following situation when it deems such recognition to be a necessary fact to the case during the trademark registration examination procedure; or when the administrative authority for industry and commerce is investigating and applying a penalty to the trademark-related offence.
The Trademark Review and Adjudication Board, when handling the trademark disputes, upon the request of the party concerned as per the prescription of Article 13 of this Law, may recognize the well-known trademark status when it deems such recognition to be a necessary fact to the case.
The People’s Courts designated by the Supreme People’s Court, upon the request of the party concerned as per the prescription of Article 13 of this Law, may recognize the well-known trademark status during a trademark civil or administrative litigation when it deems such recognition to be a necessary fact to the case.
The producer or operator is not allowed to use the “Well-known Trademark” expression on the commodities, the commodity packages, the containers, or in advertisement, exhibition or other commercial activities.

Article 15 Where any agent or representative registers, in its or his own name, the trademark of a person for whom it or he acts as the agent or representative without authorization therefrom, and the latter raises opposition, the trademark shall be rejected for registration and prohibited from use.
Where a trademark applied for registration is identical with or similar to another person’s prior used but yet unregistered trademark, in respect of the same or similar goods, and the applicant has contractual or business contacts, or other relations other than those prescribed by the preceding paragraph, with the prior trademark user so that the applicant definitely knows the existence of this person’s trademark, if this person files an opposition, the applied trademark shall not be registered.

Article 16 Where a trademark contains a geographic indication of the goods in respect of which the trademark is used, and the goods is not from the region indicated therein and it misleads the public, it shall be rejected for registration and prohibited from use; however, any trademark that has been registered in good faith shall remain valid.
The geographic indications mentioned in the preceding paragraph refer to the signs that signify the place of origin of the goods in respect of which the signs are used, their specific quality, reputation or other features as mainly decided by the natural or cultural factors of the regions.

Article 17 Any foreign person or foreign enterprise intending to apply for the registration of a trademark in China shall file an application in accordance with any agreement concluded between the People’s Republic of China and the country to which the applicant belongs, or according to the international treaty to which both countries are parties, or on the basis of the principles of reciprocity.

Article 18 The application for trademark registration or other trademark-related matters may be handled by the applicant by himself, or through a trademark agency established by law.
Any foreign person or foreign enterprise intending to apply for the registration of a trademark in China or having other trademark matters to attend to in China, shall entrust a trademark agency established by law to act on his or its behalf.

Article 19 Trademark agency shall act in good faith and abide by relevant laws and administrative regulations. Trademark agency shall handle the application for trademark registration and other trademark-related matters as per the clients’ requests. Trademark agency is obligated to keep the confidentiality of the client’s business secrets whichever it comprehends during the process of representation.
Trademark agency is obligated to advise its client wherever his applied trademark may fall under one of the non-registrable circumstances, as prescribed by this Law.
Trademark agency is forbidden to represent the client where it knows or should know the trademark to be filed for registration by such client falls under the circumstances prescribed in Article 15 or Article 32 of this Law.
Trademark agency is forbidden to file in its own name the application for registration of trademarks on anything else other than its services rendered.

Article 20 The industry association of trademark agency shall rigorously carry out the requirement for membership enrollment and take disciplinary action against those members in violation of the code of ethics in compliance with the association regulations. The industry association of trademark agency shall announce to the public the members enrolled and those disciplined in time.

Article 21 Trademark applications for international registration shall follow the rules established by the relevant international treaty concluded or acceded to by the People’s Republic of China. Specific procedures shall be formulated by the State Council.

Chapter II Application for Trademark Registration

Article 22 An applicant for the registration of a trademark shall, in a form, indicate, in accordance with the prescribed classification of goods, the class of the goods and the designation of the goods in respect of which the trademark is to be used.
An applicant for the registration of a trademark may file one application for the same trademark covering goods in several classes.
The documents pertaining to an application for trademark registration and so forth may be submitted in writing or in data message.

Article 23 Where a registered trademark is to acquire the exclusive right in respect of goods other than those that have been approved for registration, a new application for registration shall be filed.

Article 24 Where the sign of a registered trademark is to be altered, a new registration shall be applied for.

Article 25 Any app1icant for the registration of a trademark who files an application for registration of the same trademark for identica1 goods in China within six months from the date of filing the first application for the trademark registration overseas may enjoy the right of priority in accordance with any agreement concluded between the People’s Republic of China and the country to which the applicant belongs, or according to the international treaty to which both countries are parties, or on the basis of the principle whereby each acknowledges the right of priority of the other.
Anyone claiming the right of priority according to the preceding paragraph shall make a statement in writing when it or he files the application for the trademark registration, and submit, within three months, a copy of the application documents it or he first filed for the registration of the trademark; where the applicant fails to make the claim in writing or submit the copy of the application documents within the time limit, the claim shall be deemed not to have been made for the right of priority.

Article 26 Where a trademark is first used for goods in an international exhibition sponsored or recognized by the Chinese Government, the applicant for the registration of the trademark may enjoy the right of priority within six months from the date of exhibition of the goods.
Anyone claiming the right of priority according to the preceding paragraph shall make a claim in writing when it or he files the application for the registration of the trademark, and submit, within three months, documents showing the title of the exhibition in which its or his goods was displayed, proof that the trademark was used for the goods exhibited, and the date of exhibition; where the claim is not made in writing, or the proof documents not submitted within the time limit, the claim shall be deemed not to have been made for the right of priority.

Article 27 The matters reported and materials submitted in the application for trademark registration shall be true, accurate and complete.

Chapter III Examination for and Approval of Trademark Registration

Article 28 Where a trademark, the registration of which has been applied for, is in conformity with the relevant provisions of this Law, the Trademark Office shall, finish examination within nine months from the date of receipt of the application filed for trademark registration, preliminarily approve the trademark and publish it.

Article 29 During the examination process, when the Trademark Office considers the contents of trademark application for registration shall be supplemented with description or be amended, it may request the applicant to submit description or make amendment. The absence of the applicant’s description or amendment will not affect the Trademark Office making examination decision.

Article 30 Where a trademark the registration of which has been applied for is not in conformity with the relevant provisions of this Law, or it is identical with or similar to the trademark of another person that has, in respect of the same or similar goods, been registered or, after examination, preliminarily approved, the Trademark Office shall refuse the application and shall not publish the said trademark.

Article 31 Where two or more applicants apply for the registration of identical or similar trademarks for the same or similar goods, the preliminary approval, after examination, and the publication shall be made for the trademark which was first filed. Where applications are filed on the same day, the preliminary approval, after examination, and the publication shall be made for the trademark which was the earliest used, and the applications of the others shall be refused and their trademarks shall not be published.

Article 32 The application for trademark registration shall not be allowed to harm other person’s prior rights, and no preemptive application by any unfair means for a trademark which has been used by another person and has a certain influence shall be allowed for registration.

Article 33 A prior right owner or interested party who deems that a preliminarily approved trademark published by the Trademark Office violates the provisions of Paragraph 2 and 3 of Article 13, Article 15, Paragraph 1 of Article 16, Article 30, Article 31 and Article 32 of this Law, or any person who deems that such preliminarily approved and published trademark violates the provisions of Article 10, Article 11 and Article 12 of this Law, may raise opposition with the Trademark Office against the said trademark within three months from the date of the publication by the Trademark Office. Where no opposition has been filed at the expiration of the publication period, the registration shall be approved, a certificate of trademark registration shall be issued and the trademark shall be published.

Article 34 Where the application for registration of a trademark is refused and no publication of the trademark is made, the Trademark Office shall notify the applicant of the same in writing. Where the trademark applicant is dissatisfied, he may, within fifteen days from receipt of the notification, apply with the Trademark Review and Adjudication Board for a review. The Trademark Review and Adjudication Board shall make a decision within nine months from the date of the receipt of the application and notify applicant in writing. Where under certain particular circumstances, the time limit needs to be extended, such time limit may be extended three months upon the approval of the administrative authority for industry and commerce under the State Council. Where any party concerned is dissatisfied with the decision made by the Trademark Review and Adjudication Board, he may, within thirty days from receipt of the notification, institute legal proceedings with the People’s Court.

Article 35 Where an opposition is filed against the trademark that has, after examination, been preliminarily approved and published, the Trademark Office shall hear the opponent’s and the opposed party’s statements of facts and grounds and shall, after investigation and verification, make a decision within twelve months from the expiration date of the publication period on whether or not to approve registration, and notify in writing the opponent and the opposed party. Where under certain particular circumstances, the time limit needs to be extended, such time limit may be extended six months upon the approval of the administrative authority for industry and commerce under the State Council.
Where the Trademark Office makes a decision to approve the registration, it shall issue a trademark registration certificate and shall make a publication. If the opponent is dissatisfied with the decision, he may file with the Trademark Review and Adjudication Board an application to declare the registration of this trademark invalid pursuant to Article 44 and Article 45 of this Law.
Where the opposed party is dissatisfied with the decision not to approve the registration made by the Trademark Office, it may file an application for review with the Trademark Review and Adjudication Board, within fifteen days after receiving the notice. The Trademark Review and Adjudication Board shall make a review decision within twelve months from the receipt of the application on whether or not to approve such registration and notify in writing the opponent and the opposed party. Where under certain particular circumstances, the time limit needs to be extended, such time limit may be extended six months upon the approval of the administrative authority for industry and commerce under the State Council. If the opposed party is dissatisfied with the decision made by the Trademark Review and Adjudication Board, it may, within thirty days after receipt of the Board’s notification, institute legal proceedings with the People’s Court. The People’s Court shall notify the opponent to join in the proceedings as the third party.
During the review procedure conducted by the Trademark Review and Adjudication Board in compliance with the preceding paragraph, where the affirmation of the prior right involved is subject to the outcome of another on-going trial of the People’s Court or another on-going case handled by the administrative authorities, the Trademark Review and Adjudication Board may suspend the review procedure. However, the Trademark Review and Adjudication Board shall restore the review procedure once the cause for suspension no longer exists.

Article 36 Where, at the expiration of the legal time limit, no party concerned has applied for a review of the decision refusing an application or the decision rejecting registration made by the Trademark Office or has instituted legal proceedings with the People’s Court against the decision of review made by the Trademark Review and Adjudication Board, the refusal decision of application, rejection decision of registration or decision of review takes effect.
Where it is determined, after examination, that the opposition is not justified and that the trademark registration is approved, the valid period of the trademark registrant’s exclusive right to use the registered trademark shall be counted from the expiration of the three-month period after the preliminary publication. For the period between this expiration date and the date of the decision approving the registration of the opposed mark, the registration of the opposed mark shall have no retroactive effect upon another party who may have been using a mark identical with or similar to this newly registered trademark on identical or similar goods; however, the registrant of the opposed trademark is entitled to compensation where another party acts in bad faith and causes damages to the said registrant.

Article 37 Any application for trademark registration and trademark review shall be examined in due course.

Article 38 Where any trademark registration applicant or registrant finds any obvious errors in the trademark registration documents or application documents, it or he may apply for correction thereof. The Trademark Office shall, within the limits of its functions and powers, make the correction according to law and notify the interested party of the correction.
The error correction mentioned in the preceding paragraph shall not relate to the substance of the trademark registration documents or application documents.

Chapter IV Renewal, Alteration, Assignment and Licensing of Registered Trademarks

Article 39 The period of validity of a registered trademark shall be ten years, counted from the date of approval of the registration.

Article 40 Where the registrant intends to continue to use the registered trademark beyond the expiration of the period of validity, the registrant shall proceed with the renewal procedure of the registration as per the regulations within twelve months before the said expiration. Where the registrant fails to proceed with the renewal procedure within the said period, a grace period of six months may be allowed. The period of validity of each renewal of registration shall be ten years, commencing from the next day of the expiration date when the last period of validity of such registration expires. If the applicant fails to proceed with the renewal procedure at the expiration of the grace period, the registered trademark shall be canceled.
The Trademark Office shall publish the renewal of registration.

Article 41 Where, after the registration of a trademark, the name, address or other registered matters concerning the registrant change, an application regarding the change shall be filed.

Article 42 Where a registered trademark is assigned, the assignor and assignee shall conclude a contract for the assignment, and jointly file an application with the Trademark Office. The assignee shall guarantee the quality of the goods in respect of which the registered trademark is used.
When applying for the assignment of a registered trademark, the registrant shall, at the same time, do the same assignment in respect of all his other registered trademarks that are similar to the said registered trademark in respect of the same goods or that are identical with or similar to the said registered trademark in respect of similar goods.
Where the assignment of a registered trademark may cause confusions or exert any other unhealthy influences, the Trademark Office shall grant no approval thereof and shall notify the applicant of the reason in writing.
The assignment of a registered trademark shall be published after it has been approved, and the assignee enjoys the exclusive right to use the trademark from the date of publication.

Article 43 Any trademark registrant may, by signing a trademark license contract, authorize other persons to use his registered trademark. The licensor shall supervise the quality of the goods in respect of which the licensee uses his registered trademark, and the licensee shall guarantee the quality of the goods in respect of which the registered trademark is used.
Where any party is authorized to use a registered trademark of another person, the name of the licensee and the origin of the goods must be indicated on the goods that bear the registered trademark.
Where a registered trademark is licensed to others to use, the licensor shall record the trademark license with the Trademark Office, and the Trademark Office will make publication. A trademark license, if not recorded, cannot be used against a third party of good faith.

Chapter V Declaration of Invalidity of Registered Trademarks

Article 44 Where a registered trademark stands in violation of the provisions of Article 10, Article 11 and Article 12 of this Law, or the registration of a trademark was acquired by fraud or any other unfair means, the Trademark Office shall declare the invalidity of the registered trademark in question; and any other organization or individual may request the Trademark Review and Adjudication Board to make an adjudication to declare such a registered trademark invalid.
Where the Trademark Office has made an invalidity declaration decision of a registered trademark, it shall notify the concerned parties of the same in writing. Where any of the concerned parties is dissatisfied with the invalidity declaration decision made by the Trademark Office, he may, within fifteen days from receipt of the notification, apply with the Trademark Review and Adjudication Board for a review. The Trademark Review and Adjudication Board shall make a decision within nine months from the date of receipt of such application and notify the concerned parties in writing. Where under certain particular circumstances, the time limit needs to be extended, such time limit may be extended three months upon the approval of the administrative authority for industry and commerce under the State Council. Where any party concerned is dissatisfied with the decision made by the Trademark Review and Adjudication Board, he may, within thirty days from receipt of the notification, institute legal proceedings with the People’s Court.
Where any other entity or individual requests the Trademark Review and Adjudication Board to declare the invalidity of a registered trademark, the Board shall notify the concerned parties in writing and request them to respond with arguments within a specified period. The Board shall make a decision either to maintain or to declare such registered trademark invalid within nine months from the date of the receipt of the application and notify the concerned parties of the same in writing. Where under certain particular circumstances, the time limit needs to be extended, such time limit may be extended three months upon the approval of the administrative authority for industry and commerce under the State Council. Where any party concerned is dissatisfied with the adjudication made by the Trademark Review and Adjudication Board, he may, within thirty days from receipt of the notification, institute legal proceedings with the People’s Court. The People’s Court shall notify the opposite party involved in the procedure of trademark adjudication to attend the proceedings as the third party.

Article 45 Where any registered trademark stands in violation of the provisions of Paragraph 2 and 3 of Article 13, Article 15, Paragraph 1 of Article 16, Article 30, Article 31 and Article 32 of this Law, any prior right owner or any interested party may, within five years from the registration date of the said trademark, apply with the Trademark Review and Adjudication Board to declare this registered trademark invalid. In the case of malicious registration, the registrant of the well-known trademark shall not be subject to the five-year time limit.
The Trademark Review and Adjudication Board shall, after receipt of the application for declaration of invalidity, notify the concerned parties in writing and request them to respond with arguments within a specified period. The Board shall make a decision either to maintain or to declare such registered trademark invalid within twelve months from the date of receipt of such application and notify the concerned parties of the same in writing. Where under certain particular circumstances, the time limit needs to be extended, such time limit may be extended six months upon the approval of the administrative authority for industry and commerce under the State Council. Where any party concerned is dissatisfied with the ruling made by the Trademark Review and Adjudication Board, he may, within thirty days from receipt of the notification, institute legal proceedings with the People’s Court. The People’s Court shall notify the opposite party involved in the procedure of trademark adjudication to attend the proceedings as the third party.
During the examination procedure of the declaration of invalidity conducted by the Trademark Review and Adjudication Board in compliance with the preceding paragraph, where the affirmation of the prior right involved is subject to the result of another on-going trial of the People’s Court or another on-going case handled by the administrative authorities, the Trademark Review and Adjudication Board may suspend the examination procedure. However, the Trademark Review and Adjudication Board shall restore the examination procedure once the cause for suspension no longer exists.

Article 46 Where, at the expiration of the legal time limit, no party concerned has applied for a review of the decision made by the Trademark Office declaring a registered trademark invalid or has instituted legal proceedings with the People’s Court against the review decision or a ruling made by the Trademark Review and Adjudication Board to maintain or declare a trademark registration invalid, the decision made by the Trademark Office or the decision/ruling made by the Board takes effect.

Article 47 Where a registered trademark has been declared invalid according to Article 44 or Article 45 of this Law, a public announcement shall be made by the Trademark Office, and the exclusive right to use such registered trademark shall be deemed as non-existent from the very beginning.
The decision of declaration of invalidity of a registered trademark shall have no retroactive effect on any judgment, adjudication or mediation agreement made and enforced by the People’s Court or the decision made and enforced by the administrative authority for industry and commerce in a trademark infringement case and on any trademark assignment or trademark license contract that has been performed prior to the said declaration of invalidity. But, if the bad faith of the trademark registrant has caused damages to any other party, compensation shall be made.
If not reimbursing the compensation for trademark infringement, or the trademark assignment fees, or the trademark royalties as prescribed by the preceding paragraph obviously violates the principle of fairness, total or partial refund should be made.

Chapter VI Administration of the Use of Trademarks

Article 48 The use of trademarks as mentioned in this Law refers to affixing trademarks to commodities, commodity packages or containers as well as commodity transaction documents or using trademarks in advertisements, exhibitions and other commercial activities to distinguish the origin of the commodities.

Article 49 Where the trademark registrant who uses his registered trademark has committed any of the following, the local administrative authority for industry and commerce shall order him to rectify the situation within a specified period; where the situation is not rectified at the expiration of the said specified period, the Trademark Office may cancel the registered trademark:
(1) where a registered trademark is altered unilaterally;
(2) where the name, address or other registered matters concerning the registrant of a registered trademark are changed unilaterally.
Where the registered trademark has become the generic name of the designated goods or has not been used for three consecutive years without proper reason, any entity or individual may file an application with the Trademark Office for the cancellation of the registered trademark. The Trademark Office shall make a decision within nine months from the date of receipt of such cancellation application. Where under certain particular circumstances, the time limit needs to be extended, such time limit may be extended three months upon the approval of the administrative authority for industry and commerce under the State Council.

Article 50 Where a registered trademark has been canceled, declared invalid, or has not been renewed at the expiration, the Trademark Office shall, during one year from the date of the cancellation, declaration of invalidity, or removal thereof, approve no application for the registration of a trademark that is identical with or similar to the said trademark.

Article 51 Where any person violates the provisions of Article 6 of this Law, the local administrative authority for industry and commerce shall order him to file an application for the registration within a specified period, and may, in addition, impose a fine as prescribed below:
(1) where the illegal turnover exceeds 50,000 yuan, the fine imposed shall be not more than 20% of the illegal turnover;
(2) where there is no illegal turnover or the illegal turnover is below 50,000 yuan, the fine imposed shall be not more than 10,000 yuan.

Article 52 Where any person using an unregistered trademark either poses the unregistered trademark as a registered one or stands in violation of the provision of Article 10 of this Law, the local administrative authority for industry and commerce shall stop the use of the trademark, order him to rectify the situation within a specified period, and may, in addition, circulate a notice of criticism and may, in addition, impose a fine as prescribed below:
(1) where the illegal turnover exceeds 50,000 yuan, the fine imposed shall be not more than 20% of the illegal turnover;
(2) where there is no illegal turnover or the illegal turnover is below 50,000 yuan, the fine imposed shall be not more than 10,000 yuan.

Article 53 Where any entity or individual stands in violation of the provisions of Paragraph 5 of Article 14 of this Law, the local administrative authority for industry and commerce shall order it or him to rectify the situation and may, in addition, impose a fine of 100,000 yuan.

Article 54 Any party concerned dissatisfied with the decision of the Trademark Office to cancel or not to cancel a registered trademark may, within fifteen days from receipt of the corresponding notice, apply with the Trademark Review and Adjudication Board for a review. The Trademark Review and Adjudication Board shall make a decision within nine months from the date of receipt of the application and notify the applicant in writing. Where under certain particular circumstances, the time limit needs to be extended, such time limit may be extended three months upon the approval of the administrative authority for industry and commerce under the State Council. Where any party concerned is dissatisfied with the decision made by the Trademark Review and Adjudication Board, he may, within thirty days from receipt of the notification, institute legal proceedings with the People’s Court.

Article 55 Where, at the expiration of the legal time limit, no party concerned has applied for a review of the cancellation decision of registered trademark made by the Trademark Office or has instituted legal proceedings with the People’s Court against the review decision made by the Trademark Review and Adjudication Board, the cancellation decision or the cancellation review decision of registered trademark takes effect.
In case a registered trademark is canceled, 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 date of the publication.

Chapter VII Protection of the Right to Exclusive Use of a Registered Trademark

Article 56 The exclusive right to use a registered trademark is limited to the trademark which has been approved for registration and to the goods in respect of which the use of the trademark has been approved.

Article 57 Any of the following acts shall be an infringement of the exclusive right to use a registered trademark:
(1) to use a trademark that is identical with a registered trademark in respect of the same goods without authorization of the registrant of the registered trademark;
(2) to use a trademark similar to a registered trademark in respect of the same goods or to use a trademark identical with or similar to a registered trademark in respect of similar goods, without authorization of the registrant of the registered trademark, where such use is likely to cause confusion;
(3) to sell the goods that infringe the exclusive right to use a registered trademark;
(4) to counterfeit, or to make, without authorization, representations of a registered trademark of another person, or to sell such representations of a registered trademark as were counterfeited, or made without authorization;
(5) to replace, without the consent of the trademark registrant, its or his registered trademark and market again the goods bearing the replaced trademark;
(6) to intentionally provide a person with conveniences for such person’s infringement of the trademark of another person or facilitate such person’s infringement of the trademark of another person;
(7) to cause, in other aspects, prejudice to the exclusive right of another person to use a registered trademark.

Article 58 Where the unregistered well-known trademark or registered trademark of another person is used as a trade name of enterprise name, which misleads the public, and therefore constitutes unfair competition act, Anti-Unfair Competition Law of the People’s Republic of China shall apply.

Article 59 Where an registered trademark contains the generic name, shape or model of the goods in respect of which it is used, or directly indicates the quality, main raw material, function, use, weight, quantity and other features of the goods, or contains a place name, the holder of the exc1usive right to use the registered trademark has no right to prohibit others from fairly using it.
Where a three-dimensional registered trademark contains an element that is the shape originating from the nature of the goods, or existing to achieve the technical effect of the goods or enable the goods to keep their substantive value, the holder of the registered trademark has no right to prohibit others from fairly using such element.
Where, prior to the application date of the registered trademark, a person has been using a trademark identical with or similar to such registered trademark in respect of the same or similar goods, and such use has started before the registrant of the registered trademark and has acquired a certain influence, the holder of the registered trademark has no right to prohibit such person from continuing using his trademark within its previous usage range. However, the holder of the registered trademark may ask such person to properly attach distinguishable marks.

Article 60 Where any party has committed any of such acts to infringe the exclusive right to use a registered trademark as provided for in Article 57 of this Law and has caused a dispute, the interested parties shall resolve the dispute through consultation; where they are reluctant to resolve the matter through consultation or the consultation fails, the trademark registrant or interested party may institute legal proceedings with the People’s Court or request the administrative authority for industry and commerce for actions.
If the administrative authority for industry and commerce believes the infringing act is true, it may order the infringer to stop the infringing act, confiscate and destroy the infringing goods and the tools mainly used to manufacture the infringing goods or counterfeit the sign of the registered trademark, and impose a fine as prescribed below:
(1) where the illegal turnover exceeds 50,000 yuan, the fine imposed shall be not more than five times the illegal turnover;
(2) where there is no illegal turnover or the illegal turnover is below 50,000 yuan, the fine imposed shall be not more than 250,000 yuan.
The administrative authority for industry and commerce shall impose a heavier punishment on those who have committed trademark infringement twice or more within five years or on those with other serious circumstances. The seller, who does not know that the goods infringe other person’s exclusive right to use a registered trademark and who has evidence to prove that he obtained the goods through legal channels and indicates the name of the supplier, shall be ordered by the administrative authority for industry and commerce to stop selling such goods.
At the request of the party concerned, the administrative authority for industry and commerce for handling the case may offer mediation to solve the disputes over the amount of compensation for the infringement of a registered trademark. The party concerned may also institute legal proceedings with the People’s Court according to the provisions of the Civil Procedure Law of the People’s Republic of China to settle the disputes. Where no agreement is reached by the parties concerned after the mediation of the administrative authority for industry and commerce or the party concerned refuses to implement the mediation agreement after the agreement enters into force, the party concerned may institute legal proceedings with the People’s Court pursuant to the provisions of the Civil Procedure Law of the People’s Republic of China.

Article 61 The administrative authority for industry and commerce has the power to investigate and handle any act of infringement of the exclusive right to use a registered trademark according to law; where the case is so serious as to constitute a crime, it shall be transferred to the judicial authority for handling.

Article 62 When investigating and handling an act suspected of infringement of a registered trademark, the administrative authority for industry and commerce at or above the county level may, according to the obtained evidence of the suspected violation of law or informed offence, exercise the following functions and authorities:
(1) to inquire of the interested parties involved, and to investigate the relevant events of the infringement of the exclusive right to use the trademark;
(2) to read and make copy of the contract, receipts, account books and other relevant materials of the interested parties relating to the infringement;
(3) to inspect the site where the interested party committed the alleged infringement of the exclusive right to use the trademark; and
(4) to inspect any articles relevant to the infringement; any articles that prove to have been used for the infringement of another person’s exclusive right to use the trademark may be sealed up or seized.
When the administrative authority for industry and commerce exercises the preceding functions and authorities, the interested party shall cooperate and help, and shall not refuse to do so or stand in the way.
During the investigation and penalization procedure of a trademark infringement case, where there is a dispute over the ownership of the trademark concerned or the right owner simultaneously institutes a trademark infringement suit with the People’s Court, the administrative authority for industry and commerce may suspend the investigation and penalization procedure of the case. However, the administrative authority for industry and commerce shall restore or terminate the investigation and penalization process once the cause for suspension no longer exists.

Article 63 The amount of compensation for the infringement of the exclusive right to use a registered trademark shall be assessed in accordance with the actual damages that the right holder has suffered from the infringement; if it is difficult to assess the actual damages, the amount of compensation shall be equivalent to the profit that the infringer has earned through the infringement. Where it is difficult to determine either the actual damages suffered by the right holder from the infringement or the profit earned by the infringer through the infringement, the amount of compensation may be determined at a reasonable multiple of the royalty that the infringed registered trademark might have earned. In case of bad faith infringement where the circumstances are serious, the amount of compensation may be determined to a level that shall be not more than three times but also not less than one time the amount calculated according to the abovementioned approaches. The amount of compensation shall cover the rational expenses paid by the infringed for stopping the infringing act.
Where the right holder has fulfilled his obligation to supply evidence in order to enable the People’s Court to determine the amount of compensation, while the account books and any other materials connected with the infringing act are mostly in the control of the infringer, the People’s Court may order the infringer to provide such account books and materials. Where the infringer refuses to provide such information or provides false information, the People’s Court may determine the amount of compensation at its discretion by taking into account the claims and the evidence submitted by the infringed.
Where it is difficult to determine the amount of loss suffered by the right holder from the infringing act, or the amount of the infringer’s profit from the infringing act, or the amount of registered trademark’s royalty as listed in the preceding paragraph, the People’s Court shall make a decision on the amount of compensation not higher than 3,000,000 yuan, taking into account the seriousness of the infringement.

Article 64 Where the holder of a registered trademark claims compensation and the accused infringer argues that such registered trademark has not been used by its holder, the People’s Court may order the holder of the registered trademark to provide the evidence of actual use of such trademark during the last three years. Where the holder of the registered trademark fails to provide either the evidence of actual use of such trademark during the last three years or the evidence of the amount of loss suffered by the right holder from the infringing act, the accused infringer shall not be held liable for compensation.
Anyone who sells goods that it or he does not know has infringed the exclusive right to use a registered trademark, and is able to prove that it or he has obtained the goods legitimately and indicates the supplier thereof shall not bear the liability for damages.

Article 65 Where a trademark registrant or interested party who has evidence to show that another person is committing or will commit an infringement of the right to use its or his registered trademark, and that failure to promptly stop the infringement will cause irreparable damages to its or his legitimate rights and interests, it or he may file an application with the People’s Court to order cessation of the relevant act and to take measures for property preservation before instituting legal proceedings with the People’s Court pursuant to the law.

Article 66 In order to stop an infringing act, any trademark registrant or interested party may file an application with the People’s Court for preservation of the evidence before instituting legal proceedings with the People’s Court in accordance with the law where the evidence will possibly be destroyed or lost or difficult to be obtained again in the future.

Article 67 Where any party uses, without the authorization from the trademark registrant, a trademark identical with a registered trademark in respect of the same goods, and the case is so serious as to constitute a crime, he shall be prosecuted, according to law, for his criminal liabilities in addition to his compensation for the damages suffered by the infringed.
Where any party counterfeits, or makes, without authorization, representations of a registered trademark of another person, or sells such representations of a registered trademark as were counterfeited, or made without authorization, and the case is so serious as to constitute a crime, he shall be prosecuted, according to law, for his criminal liabilities in addition to his compensation for the damages suffered by the infringed.
Where any party sells goods that he knows bear a counterfeited registered trademark, and the case is so serious as to constitute a crime, he shall be prosecuted, according to law, for his criminal liabilities in addition to his compensation for the damages suffered by the infringed.

Article 68 Where any trademark agency has committed any of the following, the administrative authority for industry and commerce shall order such entity to rectify the situation within a specified period, give warnings, impose a fine no more than 100,000 yuan but also no less than 10,000 yuan upon the entity; as well as give individual warnings to the executives directly in charge and other responsible personnel together with a fine not exceeding 50,000 yuan but not less than 5,000 yuan on the said individuals; the offender shall be prosecuted for his criminal liabilities according to law if the case is so serious as to constitute a crime:
(1) to counterfeit or alter the legal document, seal or autograph, or to use the counterfeit or altered legal document, seal or autograph when handling trademark related matters;
(2) to solicit trademark representation by slandering any other trademark agency, or to disturb the normal order of the trademark representation market by other dishonest means;
(3) to be in violation of the provisions of Paragraph 3 and 4 of Article 19 of this Law.
Where a trademark agency has committed any of the aforementioned offence, the administrative authority for industry and commerce shall record such offence in the credibility dossier of the said trademark agency; where the circumstances is serious, the Trademark Office and the Trademark Review and Adjudication Board may refuse to accept the cases filed by the said trademark agency and publish such decision.
Any trademark agency that violates the principle of good faith and infringes the legitimate interests of the client shall be held liable for the civil liability and be subject to disciplinary action taken by the industry organization of trademark agency in compliance with the organization regulations.

Article 69 The State functionaries for the registration, administration and review of trademarks must handle cases according to law, be incorruptible and disciplined, devoted to their duties and courteous and honest in their provision of service.
The Trademark Office, the Trademark Review and Adjudication Board and the State functionaries working for the registration, administration and review of trademarks shall not practice as trademark agent or engage in any activity to manufacture and market goods.

Article 70 The administrative authority for industry and commerce shall establish and amplify its internal supervision system to supervise and inspect the State functionaries for the registration, administration and review of trademarks in their implementation of the laws and administrative regulations and in their observation of the discipline.

Article 71 Where any State functionary for the registration, administration and review of trademarks neglects his duty, abuses his power, engages in malpractice for personal gain, handles the registration, administration and review of trademarks in violation of law, accepts money or material wealth from any interested party or seeks illicit interest, which constitutes a crime, he or she shall be prosecuted for his or her criminal liabi1ity. If the case is not serious enough to constitute a crime, he or she shall be given punishment according to law.

Chapter VIII Supplementary Provisions

Article 72 Any application for a trademark registration and for other matters concerning a trademark shall be subject to payment of the fees as prescribed. The schedule of fees shall be prescribed separately.

Article 73 This Law shall enter into force on March l, l983. The Regulations Governing Trademarks promulgated by the State Council on April l0, l963 shall be abrogated on the same date, and any other provisions concerning trademarks contrary to this Law shall cease to be effective at the same time.
Trademarks registered before this Law enters into force shall continue to be valid.