Guo Zhi Fa Bao Zi [2021] No. 34
 
The intellectual property offices of all provinces, autonomous regions, and municipalities directly under the Central Government and Xinjiang Production and Construction Corps:
For the purposes of thoroughly implementing the decisions and arrangements made by the CPC Central Committee and the State Council on comprehensively strengthening protection of intellectual property rights, enhancing trademark administration, unifying law enforcement standards, and improving the level of law enforcement, in accordance with the Trademark Law of the People’s Republic of China and the Implementing Regulationsation of the Trademark Law of the People’s Republic of China, the Standards for Determining General Trademark Violations are developed and hereby issued for your compliance and implementation. All new circumstances and new issues arising in the implementation shall be reported in a timely manner.
 
China National Intellectual Property Administration
December 13, 2021


Standards for Determining General Trademark Violations
 
Article 1          For the purposes of enhancing trademark administration, strengthening the guidance for trademark law enforcement, and unifying law enforcement standards, the Standards are hereby formulated in accordance with the Trademark Law of the People’s Republic of China (hereinafter referred to as the “Trademark Law”), the Implementing Regulations  of the Trademark Law of the People’s Republic of China (hereinafter referred to as the “Implementing Regulations of the Trademark Law”) and other relevant laws and regulations and departmental rules.
Article 2      The Standards shall apply to the investigation and prosecution against the general trademark violation acts by departments in charge of trademark law enforcement.
Article 3     “General trademark violation acts” referred to in the Standards are the acts that violate the order of trademark administration.
Any of the following acts shall be deemed as a general trademark violation act:
(1) A registered trademark fails to be used where it is mandatory to use a registered trademark as in violation of Article 6 of the Trademark Law;
(2) A sign which shall not be used as a trademark is used as in violation of Article 10 of the Trademark Law;
(3) The words “well-known trademark” are used in commercial activities as in violation of Paragraph 5 of Article 14 of the Trademark Law;
(4) A trademark licensee fails to indicate its name and the origin of goods as in violation of Paragraph 2 of Article 43 of the Trademark Law;
(5) The trademark registrant changes the registered trademark, the registrant’s name or address , or any other registered matter without the prescribed procedure in the process of using the registered trademark as in violation of Paragraph 1 of Article 49 of the Trademark Law;
(6) An unregistered trademark is intentionally used as a registered trademark as in violation of Article 52 of the Trademark Law;
(7) The obligations to administer collective marks or certification marks are not performed as in violation of Paragraph 2 of Article 4 of the Implementing Regulationsation of the Trademark Law and Articles 14, 15, 17, 18, 20 and 21 of the Measures for the Registration and Administration of Collective Marks and Certification Marks;
(8) The obligations to administer trademark printing and production are not performed as in violation of Articles 7 to 10 of the Measures for the Administration of the Printing and Production of Trademarks;
(9) An application for trademark registration is filed in bad faith as in violation of Article 3 of the Several Provisions on Regulating Trademark Registration Applications;
(10) The order of trademark administration is otherwise violated.
Article 4    In accordance with Article 6 of the Trademark Law, Article 19 of the Law of the People’s Republic of China on Tobacco Monopoly, and Articles 22 and 65 of the Regulation on the Implementation of the Law of the People’s Republic of China on Tobacco Monopoly,  cigarettes, cigars, packed cut tobacco, electronic cigarettes, and other new tobacco products must bear registered trademarks. If no trademark registration has been made in China, such goods cannot be manufactured or or sold in China.
Imported cigarettes, cigars, packed cut tobacco, electronic cigarettes, and other new tobacco products to be sold in China must bear trademarks that have been approved for registration in China.
Article 5    Whether the use of an unregistered trademark violates Article 10 of the Trademark Law or not is generally judged based on the common knowledge of the general public within the territory of China,
unless there are justified and sufficient reasons to prove that the specific public within the territory of China considers that the use of the unregistered trademark has violated the provisions of Paragraph 1(6) to Paragraph 1(8) of this article.
Article 6    Whether an used unregistered trademark is identical or similar to the signs as  prescribed in Paragraph 1 of Article 10 of the Trademark Law shall be judged by reference to the Trademark Examination and Trial Guide.
Article 7     “Having the nature of ethnic discrimination” as prescribed in Paragraph 1(6) of Article 10 of the Trademark Law means that the words, design or other constituent elements of an unregistered trademark contain  anycontent that defames, belittles or unequally treats a particular ethnic group.
Article 8    “Having the nature of fraud” as prescribed in Paragraph 1(7) of Article 10 of the Trademark Law means that a trademark discribesthe quality or other characteristics or the place of origin of the goods or services in a way that exceeds the inherent degree or doesn’t tally with the facts s,  andthat the public may be  easily misled regarding the quality or other characteristics or the place of origin of the goods or services,
unless the public is unlikely to be misled regarding the quality or other characteristics or the place of origin of the goods or services based on their daily life experience.
Article 9      An used unregistered trademark under any of the following circumstances is deemed to “have the nature of fraud” as prescribed in Paragraph 1(7) of Article 10 of the Trademark Law:
    (1) Whereit can easily mislead the public regarding the quality, primary raw materials, functions, uses, weight, quantity, and other characteristics of the goods or services;
    (2) Where it can easily mislead the public regarding the place of origin of goods or services;
    (3) Where, in any other circumstances, it describes  the quality or other characteristics or the place of origin of the goods or services in a way that exceeds the inherent degree or doesn’t tally with the facts, and that may easily mislead the public.
    Article 10    “Being detrimental to socialist morality” as prescribed by Paragraph 1(8) of Article 10 of the Trademark Law refers to potential damages to the norms and codes of conduct that guide the everyday life and behavior of the Chinese public, as well as the good socialclimate and habits that are prevalent in society within a certain period.
    Article 11   “Other adverse effects” as prescribed by Paragraph 1(8) of Article 10 of the Trademark Law refers that words, design, or other elements of the sign have a derogatory meaning, or the sign itself has no derogatory meaning, but when it is used as a trademark, it can easily cause adverse influence on the public interests and public order of China’s politics, economy, culture, religion, ethnicity, etc.
    Article 12   An usedunregistered trademark is regarded as having other adverse effects as prescribed in Paragraph 1(8) of Article 10 of the Trademark Law:
    (1) Where it is harmful to national security and national unity;
    (2) Where it is damaging to national sovereignty, dignity and image;
    (3) Where it is harmful to national or ethnical dignity or feelings;
    (4) Where it is harmful to religious belief, religious sentiment, or folk belief;
    (5) Where it is identical or similar to the names of terrorist organizations or cult organizations;
    (6) Where it is identical or similar to the unique names of public emergency events;
    (7) Where the trademark or its constituent elements are identical or similar to the names, portraits, etc. of political, economic, cultural, religious, ethnic public figures, and other public figures and have a negative impact on public social interests and public order; or
    (8) it could cause a negative impact on public interests and public order otherwise.
    Article 13   In determining whether an  used unregistered trademark is harmful to socialist morality or has other adverse effects, the following factors and theirinteractive influences should be comprehensively considered:
    (1) Political background, social background, historical background, cultural tradition, ethnic customs, religious policy, etc. at the time when the trademark is used;
    (2) The constituent elements of the trademark and the goods or services on which the trademark is used;
    (3) the subjective intention of the user, the way of use, and the social impact of the user’s behavior.
    The public’s daily life experience, records in dictionaries, reference books, etc., or the common knowledge of the relevant public can be used as the basis for determination of “being harmful to socialist morality or having other adverse effects”.
    Article 14   For an used unregistered trademark with multiple meanings, if one of the meanings is likely to cause the public to believe that it falls under the circumstances specified in Paragraphs 1(6) to 1(8) of Article 10 of the Trademark Law, it can be determined that the provisions of this Paragraph are violated.　　    Article 15    Where the China National Intellectual Property Administration determines that the trademark registration application violates the provisions of Article 10 of the Trademark Law, if the trademark applicant or others continue to use the trademark after the relevant decision or ruling takes effect,, the departments responsible for trademark law enforcement shall carry out investigation and prosecution according to law.
    Article 16   If the department in charge of trademark law enforcement finds that the registered trademark is suspected of violating the provisions of Article 10 of the Trademark Law, it shall report to the China National Intellectual Property Administration level by level, and the China National Intellectual Property Administration shall handle it according to the prescribed procedures. After the China National Intellectual Property Administration decides to declare a registered trademark invalid and the decision takes into effect, if the trademark registrant or others continue to use the trademark, the department responsible for trademark law enforcement shall carry out investigation and prosecution according to law.
    Article 17   Where the provisions of Paragraph 5 of Article 14 of the Trademark Law is violated, the circumstances, harmful consequences, subjective faults, and other factors of the illegalact shall be comprehensively considered, and the illegal act shall be handled under Article 53 of the Trademark Law and Article 33 of the Administrative Penalty Law of the People’s Republic of China.
    Article 18   The “change of an  registered trademark without the prescribed procedure ” as prescribed in Paragraph 1 of Article 49 of the Trademark Law refers to the situation where a trademark registrant makes partial changes to or changes the relative positions of the elements of a registered trademark, such as words, devices, letters, numbers, three-dimensional marks, color combinations, sound, and other elements, thus affecting the public’s recognition of the registered trademark, but the registrant still uses the sign “registered trademark” or other signs indicating registration on the altered trademark.
    Article 19   Where the package of cigarettes as a whole is registered as a trademark, if the change of the trademark is attributed to adding warning words or modifyingthe content and the area of warning words under relevant regulations of the State, the use of the such an altered trademark shall not be regarded as a violation of the provisions of the First Paragraph of Article 49 of the Trademark Law.
    Article 20   Any of the following circumstances shall be identified as “altering the registered trademark without the prescribed procedure” as prescribed in the  provisions of Paragraph 1of Article 49 of the Trademark Law:
    (1) Failing to file an application to the China National Intellectual Property Administration for the change of the name of a trademark registrant, after the name of the trademark registrant is changed;
    (2) Failing to file an application to the China National Intellectual Property Administration for the change of the address of a trademark registrant, after the address of the trademark registrant is changed, or the actual address of the trademark registrant is inconsistent with that recorded in the Trademark Registration Certificate;
    (3) Failing to file an application for alteration with the China National Intellectual Property Administration in accordance with law, after other registered matters  than the name and address of the trademark registrant have changed.　　
    Article 21    Where a trademark registrant changes a registered trademark, the name or address of the registrant, or any other registered matters  without the prescribed procedure, the departments responsible for trademark law enforcement shall order the registrant to make corrections within a prescribed time limit. If no correction is made at the expiry of the prescribed time limit, the departments responsible for trademark law enforcement shall report the matter level by level to the China National Intellectual Property Administration, which shall handle the matter according to the prescribed procedures.
    Article 22 “Using an unregistered trademark as a registered mark” as prescribed in Article 52 of the Trademark Law, refers to using the sign  “registered trademark” on goods, packaging, containers, places of service, and trade documents or in advertising, exhibitions, and other commercial activities where an unregistered trademark is used, or using the registration sign on an unregistered trademark, or using a symbol similar to the registration sign on an unregistered trademark to mislead the relevant public.
    Article 23   Any of the following acts committed by the registrant or user of a trademark shall fall into the category of “using an unregistered trademark as a registered trademark,” as prescribed in Article 52 of the Trademark Law:
    (1) Using a trademark that has not been filed with the China National Intellectual Property Administration for registration, with the sign  “registered trademark” or other signs indicating registration ;
    (2) Using a trademark that has been rejected in an application for registration filed with the China National Intellectual Property Administration or has not yet been approved for registration with the sign “registered trademark” or other signs indicating registration;
    (3) Using a trademark that has been canceled, declared invalid, or removed from the register due to failure to renew at the expiration of the period or after the registrant’s request for cancellation is approved, with the sign “registered trademark” or other signs indicating registration,  unless the goods have entered into the circulation before registered trademark becomes invalid;
    (4) Using a registered trademark on the goods or services that exceed the scope of originally- approved goods and services of the registered trademark, with the sign “registered trademark” or other signs indicating registration;
    (5) Using a registered trademark , with the sign“registered trademark” or other signs indicating registration, even after the distinctive features of the registered mark have been altered ;
    (6) Using  two or more registered trademarks  in combination, with the signs indicating registration, but  the registration signs are not properly used on each registered trademark that composes the combination trademark concerned ;
    (7) Using the sign“registered trademark” or other signs indicating registration on the imported goods, on which the attachedtrademark has not been registered in China, and no declaration has been made thereon.
    Where the aforesaid acts of a trademark registrant or user constitute an infringement of another person’s exclusive trademark right as prescribed in Article 57 of the Trademark Law, the trademark law enforcement departments shall investigate and prosecute the act in accordance with Paragraph 2 of Article 60 of the Trademark Law; where a crime is suspected to have been committed, the case shall be transferred to the judicial authorities in a timely manner to be dealt with in accordance with the law..
    Article 24   A trademark registrant shall supervise the licensee’s legitimate use of its registered trademark. If a trademark registrant knows or should know that the licensee changes the registered trademark, the registrant’s name, address, or other registered matters on his own but fails to stop such change in time, the trademark registrant shall bear the legal responsibility for such an illegimatechange.
     Article 25     Where a registrant of a collective mark or certification trademark violates Paragraph 2 of Article 4 of the Implementing Regulations of the Trademark Law or Articles 14, 15, 17, 18, or 20 of the Measures for the Registration and Administration of Collective Trademarks and Certification Trademarks, the trademark law enforcement departments should handle the matter according to Article 22 of the Measures for the Registration and Administration of Collective Trademarks and Certification Trademarks.
Article 26    If the goods produced by a party that is not a member of the orignizaiton meet the requirements of geographical indications, the party may fairly use the names of the places contained in such geographical indications. However, they have no right to use the collective trademarkwhich has been registered as geographical indications.
    Article 27   In any of the following circumstances, the registrant of a collective mark is deemed as not managing or controlling the use of the trademark effectively as prescribed in Article 21 of the Measures for the Registration and Administration of Collective Trademarks and Certification Marks:
    (1) Where the member who violates the rules for the management of the use of the collective mark fails to assume responsibility;
    (2) Where the inspection and supervision system for the goods using the collective mark is not in effective operation;
    (3) Where in other circumstances the use of the collective trademark is not put under effective  management or control.
    Article 28   In any of the following circumstances, the registrant of the certification trademark is deemed as not managing or controlling the use of the trademark effectively as prescribed in  Article 21 of the Measures for the Registration and Administration of Collective Trademarks and Certification Marks:
    (1) Where the user who violates the rules for the management of the use of the certification trademark fails to assume responsibility;
    (2) Where the inspection and supervision system for the goods using the certification mark is not in effective operation;
    (3) Where in other circumstances the use of the certification trademark is not put under effective management or control.
    Article 29   The “trademark representations” mentioned in the Regulations on the Administration of the Printing Industry and the Measures for the Administration of the Printing and Production of Trademarks refer to tangible carriers with trademarks attached that enter into the circulationtogether with the goods, including registered trademark representations  and unregistered trademark representations.
    Trademark representations are generally independent of the goods being marked and do not have the functions of the goods.
    Article 30   Trademark printing and production refers to the act of printing or making trademark representations.
    Where trademarks are directly attached to  the goods, parts and components of goods, or main raw materials of goods (excluding packaging of the goods) by printing, dyeing, stamping, or other means, it shall be an act of producing and processing thegoods and generally shall not be classified as trademark printing and production as mentioned in the preceding paragraph.
    Article 31   When a trademark printing and production unit undertakes to print a trademark representation marked with the sign “registered trademark” or other signs indicating registration, in accordance with the provisions of Articles 3, 4, 5, and 7 of the Measures for the Administration of the Printing and Production of Trademarks , it shall check the Trademark Registration Certificate and other supporting documents, whether the trademark representation to be printed is consistent with the trademark as indicated n the Trademark Registration Certificate and whether the registered trademark is valid. In case of failure to fulfill the above examination and verification obligations, the trademark law enforcement departments shall investigate and  deal with the matter according to law.
    Article 32   Where a trademark printing and production unit undertakes to print trademark representations without the sign “registered trademark” or or other signs indicating registration and fails to perform the following obligations of examination and verification, the departments responsible for trademark law enforcement shall investigate and deal with the matter according to law:
    (1) Verifying certification documents and trademark representations in accordance with the provisions of Articles 3, 6, and 7 of the Measures for the Administration of the Printing and Production of Trademarks;
    (2) Checking through the official website of the China National Intellectual Property Administration whether others have registered the same trademark as the trademark to be printed on the same goods or services.
    If another person has registered the same trademark as the trademark to be printed on the same goods or services, and the trademark printing and production unit still undertakes the printing and production, the case shall be handled in accordance with the provisions of Article 13 of the Measures for the Administration of the Printing and Production of Trademarks.
    Article 33 When investigating and dealing with malicious trademark registration applications, the trademark law enforcement departments may refer to effective decisions or rulings in which the China National Intellectual Property Administration deems that the trademark registration application or the registered trademark violates the provisions of Article 4, Paragraph 1(8) of Article 10, Articles 13, 15, and 32 of the Trademark Law or belongs to the situation of “acquiring registration by fraud or any other unfair means” as prescribed by Paragraph 1 of Article 44 of the Trademark Law, andthe trademark law enforcement departments should handle it in light of specific circumstances of the case.
    Article 34   This Standard is interpreted by the China National Intellectual Property Administration. Where trademark authorization and confirmation are involved, the Guidelines forTrademark Examination s shall apply.
    Article 35     This Standard has came into force on January 1, 2022.