|
IMPLEMENTING
RULES OF THE TRADEMARK LAW OF THE PEOPLE'S REPUBLIC OF CHINA
(First revision approved by
the State Council on January 3, 1988; second revision approved by
the State Council on July 15, 1993; and third revision approved by
the State Council on April 23, 1995)
Chapter
I
General
Provisions
Article 1 These
Rules are formulated in accordance with the provisions of Article 42
of the Trademark Law of the People's Republic of China (hereinafter
referred to as the "Trademark Law").
Article 2 Applicants
for trademark registration must be enterprises, institutions, social
organizations, individual industrialists or businessmen or
partnerships of individuals that are formed in accordance with the
law, or foreign nationals or foreign enterprises that conform to the
provisions of Article 9 of the Trademark Law.
The provisions of these
Rules about trademarks of goods are applicable to trademarks of
services.
Article 3 In
applying for trademark registration, registration of assignments,
registration of renewals, the change of name or address of a
registrant, the replacement of a Trademark Registration Certificate
or other related matters, the applicants may entrust a trademark
agency authorized by the State Administration for Industry and
Commerce to represent them, and may also perform the application
formalities directly by themselves.
When foreign nationals or
foreign enterprises wish to apply in China for trademark
registration and the handling of other trademark matters, they shall
entrust a trademark agency appointed by the State Administration for
Industry and Commerce to represent them.
The international
registration of trademarks shall be done in accordance with the
Madrid Agreement for International Registration of Trademarks.
Article 4 Applicants
for trademark registration, registration of assignments,
registration of renewals, the change of name or address of a
registrant, the replacement if a certificate, trademark review and
adjudication or other related matters must pay the prescribed fees
in accordance with relevant provisions.
Article 5 The
Trademark Office of the State Administration for Industry and
Commerce (hereafter referred to as the "Trademark Office")
shall establish and maintain a Trademark Register in which shall be
entered registered trademarks and relevant registration matters.
The Trademark Office shall
compile and publish an Announcement of Trademarks in which shall be
printed the trademarks registered and other related matters.
Article 6 Collective
trademarks and certification trademarks that have been approved and
registered by the Trademark Office shall be protected by the law in
accordance with the provisions of Article 3 of the Trademark Law.
Provisions for the
registration and administration of collective trademarks and
certification trademarks shall be formulated separately by the State
Administration for Industry and Commerce in cooperation with other
departments concerned of the State Council.
Article 7 Registered
trademarks must be used on the pharmaceuticals for human use and
tobacco products prescribed by the State and announced by the State
Administration for Industry and Commerce.
Other goods that the State
has designated as requiring the use of a registered trademark shall
be announced by the State Administration for Industry and Commerce.
Article 8 The State
Administration for Industry and Commerce shall establish a Trademark
Review and Adjudication Board, the responsibility of which is to
make final decisions or rulings on matters submitted for review and
adjudication in accordance with the Trademark Law and these Rules.
Chapter
II
Application
for Trademark Registration
Article 9 In
applying for trademark registration, separate applications shall be
filed in accordance with the respective classes of goods as
specified in the table for the classification of goods that has been
published. For the registration of each trademark applied for, one
Application for Trademark Registration shall be filed with the
Trademark Office, accompanied by 10 samples of the trademark (when
specific colors are designated for a trademark in color, the samples
filed shall be in color), plus one black-and-white draft.
The samples of the
trademarks must be clear, easy to paste, printed on durable paper
with a smooth finish or, instead of being printed, photographed;
they shall not be larger than ten centimeters or less than five
centimeters in length and width.
Article 10 The
application for trademark registration and related forms and
attachments shall be filled in or written neatly and clearly with a
pen, writing brush or typewriter.
The name and seal of the
applicant for trademark registration shall be identical with those
that have been approved or registered. The goods listed in the
application must not overstep the approved or registered scope of
business. The names of the goods shall be filled in or written as
specified in the table for the classification of goods; for goods
that are not listed in the said table, goods directions shall be
attached to the application.
Article 11 In
applying for trademark registration on pharmaceuticals for human use,
certification documents from the administrative department of public
health shall be attached to the application.
In applying for trademark
registration on cigarettes, cigars or packaged cut tobacco,
documentation concerning production approval from the government
agency in charge of tobacco shall be attached to the application.
In applying for trademark
registration on other goods that the State has designated as
requiring the use of a registered trademark, the approval
documentation from the competent authorities shall be attached to
the application.
Article 12 The date
of application for registration of a trademark shall be the date the
application form for the same is received by the Trademark Office.
If the applicant has gone through all the necessary application
procedures and the application form is filled in as prescribed, an
application number shall be compiled and a Notice of Cognizance
issued to the applicant; if the applicant has not gone through all
the necessary application procedures or the application form is not
filled in as prescribed, the application shall be returned to the
applicant, and the date of application shall not be maintained.
If the applicant has in the
main gone through the necessary application procedures or the
application form is in the main filled in as prescribed, but some
addition or correction is required, the Trademark Office shall
notify the applicant of the requirement and ask the latter to make
the required addition or correction and return the application form
to the Trademark Bureau within 15 days, starting from the day the
notice is received. If the addition or correction is made and the
application form returned to the Trademark Bureau within the time
limit, the date of application shall be maintained; in case of
failure to make the addition or correction or to do so within the
time limit, the application shall be returned to the applicant, and
the date of application shall not be maintained.
Article 13 If two or
more applicants apply on the same day for registration of identical
or similar trademarks for the same kind of goods or similar goods,
each applicant shall submit, within 30 days and as notified by the
Trademark Office, proof of the date of the first use of its
trademark. In case the trademarks were first used on the same day,
or neither is yet in use, the applicants shall settle the matter by
consultation. If agreement is reached through consultation, they
shall submit their written agreement to the Trademark Office within
30 days; if no agreement is reached within 30 days, the applicants
shall settle the matter by drawing lots under the auspices of the
Trademark Office, or the matter shall be determined by the Trademark
Office.
Article 14 Applicants
that entrust trademark agencies to apply for trademark registration
or handle other trademark matters on their behalf should submit
powers of attorney for their agents, which shall state the matters
to be handled by the agents and the scope of the agents'?/FONT>powers;
a power of attorney issued by a foreign national or foreign
enterprise shall, in addition, state the nationality of the
principal.
The Chinese language should
be used in the application from a foreign national or foreign
enterprise for trademark registration or the handling of other
trademark matters. The formalities for the notarization or
certification of a power of attorney and related proof shall be
performed in accordance with the principle of reciprocity. Chinese
translations shall be attached to the documents and forms done in
foreign languages.
Article 15 The
Trademark Office is the agency to take cognizance of matters
relating to the application for priority in trademark registration.
The specific procedures shall follow the provisions published by the
State Administration for Industry and Commerce.
Chapter
III
Examination
of Trademark Registrations
Article 16 The
Trademark Office shall, in accordance with the Trademark Law,
examine an application of which it has taken cognizance. It shall
give preliminary approval to and publish any trademark that conforms
to the relevant provisions of the Trademark Law and has distinctive
characteristics; in case an application is rejected, the Trademark
Office shall issue to the applicant a Notice of Rejection.
If the Trademark Office
holds that an application for trademark registration can be revised,
it shall issue a Notice of Examination Suggestions to the applicant
and request the latter to make the revision within 15 days from the
day the notice is received. In case the application is not revised
or not revised within the time limit or, though revised , still not
conformable to the relevant provisions of the Trademark Law, it
shall be rejected and a Notice of Rejection issued to the applicant.
Article 17 In
requesting reexamination of a trademark that has been rejected, the
applicant shall file an Application for Reexamination of a Rejected
Trademark with the Trademark Review and Adjudication Board within 15
days from the day the Notice of Rejection is received. The original
Application for Trademark Registration, the original ten samples and
black-and-white draft of the trademark as well as the Notice of
Rejection shall be appended to that application.
The Trademark Review and
Adjudication Board shall make a final decision and so notify the
applicant in writing. If the final decision is that the trademark
shall be approved preliminarily, the matter shall be transferred to
and dealt with by the Trademark Office.
Article 18 In
bringing an opposition to a trademark that has been preliminarily
approved and published by the Trademark Office, the opposer shall
file a Trademark Opposition, one original and one duplicate copy,
with the Trademark Office; the Trademark Opposition shall specify
the numbers of the issue and the page of the Announcement of
Trademarks on which the opposed trademark is published, and the
serial number of preliminary examination and approval. The Trademark
Office shall send the Trademark Opposition to the opposed party and
request the latter to file its defense within 30 days from the day
the notice is received; it shall make a ruling on the basis of the
facts and reasons stated by the parties. In case no defense is filed
within the time limit, the Trademark Office shall made a ruling and
notify the parties concerned of this.
If the registration of an
opposed trademark has been announced before the ruling on the
opposition becomes effective, the announcement of registration of
that trademark is void.
Article 19 A party
that disagrees with the ruling made by the Trademark Office on the
opposition may apply for a reexamination by filing an Application
for Reexamination of Trademark Opposition, one original and one
duplicate copy, with the Trademark Review and Adjudication Board
within 15 days from the day the notice of the ruling on trademark
opposition is received.
The Trademark Review and
Adjudication Board shall make a final ruling and so notify the
parties concerned in writing; it shall then transfer the matter to
the Trademark Office to be handled by the latter.
A trademark to which the
opposition is found to be not justified shall be approved and
registered by the Trademark Office after the ruling on trademark
opposition comes into effect.
Chapter
IV
Change,
Assignment, Renewal, and Determination of Disputes Over Registered
Trademarks
Article 20 In
applying for a change in the name of a trademark registrant, with
respect to each trademark there shall be filed with the Trademark
Office one Application for the Change of a Trademark Registrant's
Name and one certificate for the change. After examination and
approval by the Trademark Office, a corresponding certificate shall
be issued to the registrant and the change shall be published.
In applying for a change in
the address of trademark registrant or in other registration matters,
with respect to each change there shall be filed with the Trademark
Office one Application for the Change of a Trademark Registrant's
Address or Application for a Change in Other Registration Matters of
a Trademark and one corresponding certificate for the change. After
examination and approval by the Trademark Office, a corresponding
certificate shall be issued to the registrant and the change shall
be published.
In changing the name or
address of a trademark registrant, the trademark registrant must
perform the procedures for all its trademarks at the same time.
Article 21 In
applying for the assignment of a registered trademark, the assignor
and the assignee shall file one Application for Assignment of a
Registered Trademark with the Trademark Office. The application
procedures for assignment of a registered trademark shall be
performed by the assignee, which must conform to the provisions of
Article 2 of these Rules. After examination and approval by the
Trademark Office, a corresponding certificate shall be issued to the
assignee, and the assignment shall be published.
In assigning a registered
trademark, the trademark registrant must perform the procedures for
all its identical or similar trademarks registered for the same kind
of goods or similar goods. In the assignment of a trademark of goods
prescribed in Article 7 of these Rules, the assignee shall present
certification documents from the departments concerned in accordance
with Article 11 of these Rules.
The Trademark Office shall
reject and not approve any application for the assignment of a
registered trademark that may cause misidentification , confusion or
other harmful effects.
Article 22 In
applying for a renewal of trademark registration, with respect to
each trademark applied for there shall be filed with the Trademark
Office one Application for Renewal of Trademark Registration,
accompanied by five samples of the trademark, and the original
Trademark Registration Certificate shall be turned back in. After
examination and approval by the Trademark Office, the original
Trademark Registration Certificate shall be returned with the
necessary notation, and the renewal shall be published. The
Trademark Office shall reject and not approve any application that
is not conformable to the relevant provisions of the Trademark Law.
The effective period for
each renewal of a registered trademark shall be calculated from the
next day after the expiry of the previous effective period of that
trademark.
Article 23 An
applicant that disagrees with the decision of the Trademark Office
to reject its application for assignment or renewal of trademark
registration may apply for reexamination by filing one Application
for Reexamination of Assignment Rejection or Application for
Reexamination of Renewal Rejection with the Trademark Review and
Adjudication Board with 15 days from the day the notice of rejection
is received. The application shall be accompanied by the original
Application for Assignment of a Registered Trademark or Application
for Renewal of Trademark Registration as well as the Notice of
Rejection.
The Trademark Review and
Adjudication Board shall make a final decision and so notify the
applicant in writing. If the final decision is that the assignment
or renewal of trademark registration shall be approved, the matter
shall be transferred to and dealt with by the Trademark Office.
Article 24 A
trademark registrant that disputes a trademark already registered by
another person should, within one year from the day the said
trademark is published in the Announcement of Trademarks, apply for
a ruling by filing an Application for Determination of a Trademark
Dispute, one original and one duplicate copy, with the Trademark
Review and Adjudication Board.
The Trademark Review and
Adjudication Board shall make a final ruling on whether to uphold or
revoke the registered trademark in dispute and so notify the parties
concerned in writing , and the matter shall be transferred to and
dealt with by the Trademark Office., A part of the registered
trademark shall be revoked, if the reason for revoking involves only
that part. In case the ruling is to revoke a trademark registration,
the original trademark registrant shall return the Trademark
Registration Certificate to the Trademark Office within 15 days from
the day the notice of that ruling is received.
Article 25 The
obtainment of registration by deception or other improper means
referred to in Paragraph 1, Article 27, of the Trademark Law means
one of the following acts:
(1) Obtaining registration
by making up or holding back the truth of the matter or by faking
application forms, attachments or other related documents;
(2) Using another person's
trademark that is already well-known to the public for registration
by means of duplication, imitation, translation or by other means
against the principle of honesty and good faith;
(3) An attorney using its
principal's trademark for registration in its own name without
authorization;
(4) Registering in
violation of the lawful priority right of others; and
(5) Obtaining registration
by other improper means.
A trademark registrant that
disagrees with the decision made by the Trademark Office to revoke
its registered trademark in accordance with the provisions of
Paragraph 1, Article 27, of the Trademark Law may apply for
reexamination by filing one Application for Reexamination of the
Revocation of an Improperly Registered Trademark with the Trademark
Review and Adjudication Board within 15 days from the day the notice
of the decision is received. The Trademark Review and Adjudication
Board shall make a final decision and so notify the applicant in
writing, and the matter shall be transferred to and dealt with by
the Trademark Office.
Any unit or individual that
regards a trademark as having been improperly registered may apply
for a ruling by filing an Application for the Revocation of an
Improperly Registered Trademark, one original and one duplicate copy,
with the Trademark Review and Adjudication Board. The Trademark
Review and Adjudication Board shall make a final ruling and so
notify the parties concerned in writing; it shall transfer the
matter to the Trademark Office to be handled by the latter.
The improperly registered
trademark that has been revoked shall be published by the Trademark
Office. The original trademark registrant shall return the Trademark
Registration Certificate to the Trademark Office within 15 days from
the day the notice of decision or ruling is received.
When a registered trademark
is revoked in accordance with the provisions of Paragraphs 1 and 2,
Article 27, of the Trademark Law, the right to exclusive use of that
trademark shall be regarded as nonexistent from the very beginning.
A decision or ruling to revoke a registered trademark does not apply
retrospectively to the judgments or rulings on trademark right
infringement cases made by a people's court that have already been
enforced, the decisions made by an administrative department for
industry and commerce in handling trademark right infringement cases
that have already been executed, or the trademark assignment or
licensing contracts that have already been fulfilled prior to the
revocation of the said trademark. But compensation shall be made for
malicious damage caused to another person by a trademark registrant.
Chapter
V
Administration
of Trademark Use
Article 26 If a
trademark is used, the four Chinese characters¡°×¢²áÉ̀±ê¡±(Registered
Trademark) or the symbol ×¢or R shall be displayed. In case the
said characters or symbol cannot be displayed conveniently on goods,
they shall be displayed on the packages or directions of the goods
and on other accessories of the goods.
Article 27 Application
must be filed for the replacement of a Trademark Registration
Certificate that has been lost or damaged. In doing so , the
trademark registrant shall file with the Trademark Office one
Application for Replacement of Trademark Registration Certificate,
accompanied by five samples of the trademark. In case the Trademark
Registration Certificate, has been lost, an announcement of the loss
shall be published in the Announcement of Trademarks. A Trademark
Registration Certificate that has been damaged shall be returned to
the Trademark Office.
Any forgery or alteration
of a Trademark Registration Certificate shall be penalized with a
fine of not more than RMB 20, 000 on the merits of each case by the
administrative department for industry and commerce of the place
where the forgery or alteration takes place; the forged or altered
Trademark Registration Certificate shall be confiscated.
Article 28 In the
event of any one of the acts specified in Paragraphs (1), (2) and
(3) of Article 30 of the Trademark Law, the administrative
department for industry and commerce shall order the trademark
registrant to correct the situation within a specified period; if
the trademark registrant refused to comply, the administrative
department for industry and commerce of the place where the
trademark registrant is located shall request the Trademark Office
to revoke its registered trademark.
Article 29 In the
event of the acts specified in Paragraph (4) of Article 30 of the
Trademark Law, any one may apply to the Trademark Office for the
revocation of the registered trademark concerned and explain the
matter to the said office. The Trademark Office shall notify the
trademark registrant and order it to submit, within three months
from the day the notice is received, proof of the use of that
trademark or proper reasons for ceasing to use the trademark. In
case of failure to submit the said proof within the time limit or if
the proof is void, the Trademark Office shall revoke the said
registered trademark.
The use of trademark
referred to in the foregoing paragraph includes its use on goods,
the packages or containers of goods, and documentation of business
transactions, and its use for publicity by advertisements, on
display or in other business activities.
Article 30 An
application to register a trademark that is identical with or
similar to the trademark revoked in accordance with the provisions
of Article 29 of these Rules and that is to be used on the same kind
of goods or similar goods is free from the restrictions prescribed
in Article 32 of the Trademark Law.
Article 31 In the
event of any one of the acts specified in Article 31 and Paragraph
(3) of Article 34 of the Trademark Law, the administrative
department for industry and commerce shall order the party in
question to correct the act within a specified period; in serious
cases, it shall order a self-criticism by that party, circulate a
notice on the matter, and impose a fine of not more than 20% of the
sum of illegal business transactions or not more than three times
the illegally obtained profit; the goods in question that are
poisonous, harmful or of no use value shall be destroyed; if a
registered trademark is used in the case, it shall be revoked in
accordance with provisions of the Trademark Law.
Article 32 In the
event of any one of the acts specified in Paragraphs (1) and (2),
Article 34, of the Trademark Law, the administrative department for
industry and commerce shall impose a ban on advertising publicity by
the party in question, seize or take over any representations of the
trademark of that party and order that party to correct the
situation within a specified time limit. It may also, on the merits
of the case, circulate a notice on the matter and impose a fine of
not more than 20% of the sum of illegal business transactions.
Article 33 In case
of violation of the provisions of Article 5 of the Trademark Law,
the administrative department for industry and commerce shall ban
the sales and advertising publicity of the goods in question, and
seize or take over any representations of the trademark in question;
it may also, on the merits of the case, impose a fine of not more
than 10% of the sum of illegal business transactions.
Article 34 No one
may manufacture or market representations of trademarks illegally.
In case of violation of the
provisions of the foregoing paragraph, the administrative department
for industry and commerce shall stop the acts, take over the
trademark representations in question and, on the merits of the case,
also impose a fine of not more than 20% of the sum of illegal
business transactions. In addition, in case of a person selling
representations of its own registered trademark, the Trademark
Office may revoke that registered trademark; but, if the case is one
of infringement on the right to exclusive use of a registered
trademark, it shall be dealt with in accordance with the provisions
of Article 43 of these Rules.
Article 35 A
trademark registrant that licenses another person to use its
registered trademark must enter into a trademark licensing contract
with the latter. Within three months from the day the licensing
contract is signed, the licenser and licensee shall submit a copy of
the licensing contract to a local county-level administrative
department for industry and commerce for the record; the matter
shall be reported by the licenser to the Trademark Office for the
record and to be published by the latter.
In the event of violation
of the provisions of the foregoing paragraph, the administrative
department for industry and commerce of the place where the licenser
or licensee is located shall order the party in question to correct
the situation within a specified period; if there is refusal to
correct the situation, a fine of not more than RMB 10, 000 shall be
imposed and the matter may be reported to the Trademark Office for
the revocation of the registered trademark in question.
In the event of violation
of the provisions of Paragraph 2, Article 26, of the Trademark Law,
the administrative department for industry and commerce of the place
where the licensee is located may order the party in question to
correct the situation within a specified period, take over the
trademark representations in question and, on the merits of the case,
also impose a fine of not more than RMB 50, 000.
Article 36 When a
trademark registrant licenses another person to use its registered
trademark, the licensee must be one that conforms to the provisions
of Article 2 of these Rules.
When a trademark registrant
licenses another person to use its trademark for goods specified in
Article 7 of these Rules, the licensee shall, in accordance with the
provisions of Article 11 of these Rules, attach certification
documents from the competent authorities to the copy of licensing
contract submitted for the record.
Article 37 When the
Trademark Office decides to revoke a registered trademark in
accordance with the provisions of Articles 30 and 31 of the
Trademark Law and those of Articles 28, 29, 31, 34 and 35 of these
Rules, it shall notify, in writing, the trademark registrant and the
administrative department for industry and commerce of the place
where the trademark registrant is located.
A trademark registrant that
disagrees with the decision of the Trademark Office to revoke its
registered trademark may apply for reexamination by filing an
Application for Reexamination of Trademark Revocation with the
Trademark Review and Adjudication Board with 15 days the notice of
decision is received.
The Trademark Review and
Adjudication Board shall make a final decision, so notify, in
writing, the trademark registrant and the administrative department
for industry and commerce of the place where the trademark
registrant is located, and transfer the matter to the Trademark
Office to be dealt with by the latter.
Article 38 A
trademark registrant that applies for the cancellation of its
registered trademark shall file an Application for Trademark
Cancellation with the Trademark Office and return the original
Trademark Registration Certificate.
Article 39 The
revocation or cancellation of a registered trademark shall be
published by the Trademark Office; the right to exclusive use of
that trademark is lost from the day the revocation or cancellation
is published. When a registered trademark is revoked, the
administrative department for industry and commerce of the place
where the original trademark registrant is located shall take back
the Trademark Registration Certificate and return it to the
Trademark Office.
Article 40 A party
that disagrees with a decision made by an administrative department
for industry and commerce in accordance with the provisions of
Chapter VI of the Trademark Law and Chapter V of these Rules may
apply for reexamination to the next higher administrative department
for industry and commerce within 15 days from the day the motice of
the decision is received; the next higher administrative department
for industry and commerce shall make a reexamination decision within
two months from the day the application for reexamination is
received. If the party disagrees with the reexamination decision, it
may bring suit in a people's court within 15 days from the day the
notice of the reexamination decision is received. In the event of a
failure to apply for reexamination, bring a suit in court or carry
out the decision within the time limit, the administrative
department for industry and commerce shall apply to a people's court
to compel enforcement.
Chapter
VI
Protection
of the Right to Exclusive Use of Registered Trademarks
Article 41 Any one
of the following acts shall be an infringement of the right to
exclusive use of a registered trademark referred to in Paragraph
(4), Article 38, of the Trademark Law:
(1) Selling goods which, as
the seller knows or should know, have infringed on another person's
right to exclusive use of a registered trademark;
(2) Using words or designs
that are identical with or similar to another person's registered
trademark on the same kind of goods or similar goods as the name or
decoration of the goods to an extent that is sufficient to cause
misidentification; and
(3) Deliberately providing
convenient conditions in warehousing, transportation, mailing,
concealing, etc. for any act that infringes on another person's
right to exclusive use of a registered trademark.
Article 42 In the
case of an infringement of the right to exclusive use of a
registered trademark, any one may file a charge against it or report
it to an administrative department for industry and commerce at or
above the county level at the place where the infringer is located
or where the infringement occurs. The person whose right has been
infringed may directly bring suit in a people's court as well.
When the administrative
department for industry and commerce holds there is an infringement
on the right to exclusive use of a registered trademark, it may
exercise the following functions and powers in investigating for
evidence:
(1) Questioning the parties
concerned;
(2) Examining articles
relating to infringement activities and, if necessary, ordering the
sealing up of these articles;
(3) Investigating into acts
relating to infringement activities; and
(4) Looking up and
duplicating the contract, account books and other business data
relating to infringement activities.
When the administrative
department for industry and commerce exercises the functions and
powers specified in the foregoing paragraphs, the parties concerned
shall assist it and not refuse to comply.
Article 43 In the
event of an infringement on the right to exclusive use of a
registered trademark, the administrative department for industry and
commerce may take the following measures to stop the infringement
activities:
(1) Ordering an immediate
stop to the sales;
(2) Confiscating and
destroying representations of right-infringing trademarks;
(3) Removing
right-infringing trademarks from goods in stock;
(4) Confiscating the molds,
printing plates and other means used directly and specially for
trademark infringement; and
(5) When the aforesaid four
measures are not sufficient to stop the infringement activities, or
when the right-infringing trademark can hardly be separated from the
goods, ordering and supervising the destruction of the
right-infringing articles.
In the event of an
infringement on the right to exclusive use of a registered trademark
that has not yet constituted a criminal offense, the administrative
department for industry and commerce may impose a fine of not more
than 50% of the sum of illegal business transactions or not more
than six times the profit accruing from such infringement on the
merits of each case. In regard to the directly responsible person of
the unit that has infringed on the right to exclusive use of a
registered trademark, it may impose a fine of not more than RMB10,
000 on the merits of each case.
If the party whose right
has been infringed claims compensation for losses, the
administrative department for industry and commerce may order the
infringer to make the compensation. The party concerned that
disagrees to the order may bring suit in a people's court.
Article 44 A party
that disagrees to a decision made by an administrative department
for industry and commerce in accordance with the provisions of
Paragraphs (1) and (2) of the foregoing Article may apply for
reexamination to the next higher administrative department for
industry and commerce within 15 days from the day the notice of
decision is received; the next higher administrative department for
industry and commerce shall make a reexamination decision within two
months from the day the application for reexamination is received.
If the party disagrees with the reexamination decision, it may bring
suit in a people's court within 15 days from the day the notice of
the reexamination decision is received. If it fails to apply for
reexamination, bring a suit in court or carry out the decision
within the time limit, the administrative department for industry
and commerce shall apply to a people's court to compel enforcement.
Article 45 In case
of palming off another person's registered trademark, any person may
bring a complaint against the offender or report the offense to an
administrative department for industry and commerce or a
procuratorate.
If the complaint or report
is filed with the administrative department for industry and
commerce, the said department shall deal with it in accordance with
the provisions of Article 43 of these Rules; if the case against
which the complaint or report is filed is serious enough to
constitute a criminal offense, the judicial department shall
investigate the criminal liability of the offender.
Chapter
VII
Supplementary
Provisions
Article 46 A party
that applies for reexamination in accordance with the provisions of
Articles 21, 22 and 35 of the Trademark Law and those of Articles 23
and 25 of these Rules shall perform the formalities within the
prescribed time limit. Before expiry of the time limit, it may apply
for a postponement of 30 days on account of force majeure or other
justified reasons; whether or not the application shall be granted
is up to the Trademark Review and Adjudication Board to decide.
If the papers are delivered
or received by mail, the date on the date on the postmark shall be
taken as the date of delivery or receipt; in case the postmark is
unclear or in the absence of a postmark, the date 20 days after the
papers are sent out by the Trademark Office or 20 days before the
receipt of the papers by the Trademark Office shall be taken as the
date the papers are received or sent out by the party concerned.
Article 47 The forms
for applying for trademark registration or handling other trademark
matters shall be designed and published by the State Administration
for Industry and Commerce.
The standards for fees to
be paid in applying for trademark registration or handling other
trademark matters shall be formulated and published by the State
Administration for Industry and Commerce in accordance with the
relevant provisions of the State.
The table for the
classification of goods for trademark registration shall be
published by the State Administration for Industry and Commerce.
Article 48 Trademarks
of services which had been used uninterruptedly till July 1, 1993,
and which are identical with or similar to the trademarks of
services already registered by other persons for the same kind of
services or similar services (except those well known to the public)
may continue to be used in accordance with the relevant provisions
of the State Administration for Industry and Commerce.
Article 49 The right
to interpret these Rules resides in the State Administration for
Industry and Commerce.
Article 50 These
Rules shall come into effect from the day they are promulgated. |
