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Implementing Regulations of the Trademark Law (2014.5.1)

(promulgated by Order No. 358 of the State Council of the People's Republic of China on August 3, 2002; amended by order No. 651 of the Decision of the State Council on Amending the Regulations for the Implementation of the Trademark Law of the People's Republic of China on April 29, 2014)

 

Table of Contents

Chapter I General Provisions 

Chapter II Application for Trademark Registration

Chapter III Examination of Applications for Trademark Registration

Chapter IV Alteration, Transfer and Renewal of Registered Trademarks

Chapter V International Registration of Trademarks

Chapter VI Trademark Appraisal

Chapter VII Administration of the Use of Trademarks

Chapter VIII Protection of the Exclusive Right to Use Registered Trademarks

Chapter IX Trademark Agency

Chapter X Supplementary Provisions

 

Chapter I General Provisions 

Rule 1  The Implementing Regulations of the Trademark Law of the People's Republic of China (hereinafter referred to as the "Regulations") are enacted pursuant to the Trademark Law of the People's Republic of China (hereafter referred to as the "Trademark Law").

 

Rule 2  The provisions of the Regulations that pertain to commodities trademarks shall apply to service trademarks.

 

Rule 3  Where trademark holders apply for protection for well-known trademarks in accordance with the provisions specified in Article 13 of the Trademark Law, they shall submit materials that can prove the trademark constitutes a well-known trademark. The Trademark Office and Trademark Review and Adjudication Board shall, in accordance with the provisions of Article 14 of the Trademark Law and based on the needs of examination and handling of cases and the evidence materials submitted by the party concerned, decide whether the trademark constitutes a well-known trademark.

 

Rule 4  Geographical indicators as stipulated in Article 16 of the Trademark Law may, according to the provisions of the Trademark Law and the Regulations, be registered as certification marks or collective marks.

Where a geographical indicator is registered as a certification mark, the natural person, legal person or other organization whose commodities meet the conditions for use of the said geographical indicator may request authorization to use the certification mark, and the organization that controls the certification mark in question shall consent. In the event that a geographical indicator is registered as a collective mark, the natural person, legal person or other organization whose commodities meet the conditions for use of the said geographical indicator may request authorization to become a member of the body, society or other organization that has registered the geographical indicator as a collective mark, and the body, society or other organization shall accept them to be a member, according to its articles of association. A party who has not requested authorization to become a member of the body, society or other organization that has registered a geographical indicator as a collective mark, may also have justification to use the said geographical indicator, shall not be forbidden to do so by the relevant body, society or other organization.

 

Rule 5  In order to entrust a trademark agency to apply on its behalf for a trademark registration or handle other matters pertaining to a trademark; the party concerned shall present a power of attorney. The power of attorney shall clearly specify the agency's details and the parameters of their power. If the client is a foreigner or foreign enterprise, the power of attorney shall specify the nationality of the client 

The principle of reciprocity shall be observed in the notarization or attestation of powers of attorney by foreigners or foreign enterprises, as well as other relevant certification documents. 

Where, in the application for trademark registration or transfer of a trademark, the applicant for the trademark registration or the transferee of the trademark is a foreigner or foreign enterprise, he/it shall appoint in the application the receivers within the territory of China responsible for receiving the legal documents of subsequent trademark business of the Trademark Office and the Trademark Review and Adjudication Board, which shall be sent to the receivers within the territory of China.

A foreigner or foreign enterprise as mentioned in Article 18 of the Trademark Law refers to a foreigner or foreign enterprise that does not have a permanent residence or business address within China.

 

Rule 6  The applications for trademark registration or the handling of other matters pertaining to a trademark shall be in Chinese.

In the event that any of the certificates, certification documents or supporting material evidence submitted as pursuant to the provisions of the Trademark Law and the Regulations are in a foreign language, Chinese versions of the said documents shall be attached. If no Chinese version is attached, it shall be deemed that the certificate, certification document or supporting material evidence has not been submitted.

 

Rule 7  A member of staff from the Trademark Office or the Trademark Review and Adjudication Board shall stand down from a case, and the party concerned or interested parties may request them to stand down from the case if any of the following circumstances apply to the member of staff in question:

1. the member of staff is the party concerned or a close relative of the party concerned or of an agent engaged in employment by the party concerned;

2. the member of staff has another relationship with the party concerned or an agent engaged in employment by the party concerned, the nature of which may affect impartiality; and

3. the member of staff has a vested interest in the application for trademark registration or in the handling of other matters pertaining to a trademark.

 

Rule 8  Documents related to application for trademark registration submitted by data message in accordance with the provisions of Article 22 of the Trademark Law shall be submitted by Internet in accordance with the provisions of the Trademark Office or the Trademark Review and Adjudication Board.

 

Rule 9  Unless it is otherwise provided in Rule 18 hereof, in the event that a party concerned submits documents or materials to the Trademark Office or the Trademark Review and Adjudication Board directly, the date when they submit the said documents or materials shall be deemed the date of submission. If the documents or materials are submitted by mail, the date when they are mailed as indicated by a relevant postmark shall be deemed the date of submission. In the event that a postmark is not clear or there is no postmark, the date when the Trademark Office or the Trademark Review and Adjudication Board actually receives the documents or materials shall be deemed the date of submission unless the party concerned can otherwise prove the actual postmark. If the documents or materials are submitted by an express enterprise other than the postal enterprises, the date when the express enterprise receives the documents or materials shall be deemed the date of submission. In the event that the date when the express enterprise receives the documents or materials is not clear, the date when the Trademark Office or the Trademark Review and Adjudication Board actually receives the documents or materials shall be deemed the date of submission unless the party concerned can otherwise prove the actual date when they are received by the express enterprise. If the documents or materials are submitted by data message, the date when they enter the electric system of the Trademark Office or the Trademark Review and Adjudication Board shall be deemed the date of submission.

The party concerned shall mail documents to the Trademark Office or the Trademark Review and Adjudication Board by registered mail.

The documents or materials submitted to the Trademark Office or the Trademark Review and Adjudication Board by the party concerned in writing shall be subject to the records filed in the Trademark Office or the Trademark Review and Adjudication Board; the documents or materials submitted to the Trademark Office or the Trademark Review and Adjudication Board by the party concerned by data message shall be subject to the records in database of the Trademark Office or the Trademark Review and Adjudication Board, except for the records of files and database of the Trademark Office or the Trademark Review and Adjudication Board proved to be wrong.

 

Rule 10  Any relevant document of the Trademark Office or the Trademark Review and Adjudication Board will be delivered to the party concerned directly, by mail, data message or other means; any document sent to the party concerned by data message shall be agreed by the party concerned. In the event that the party concerned has engaged a trademark agency to handle the service of the relevant documents, then any document that has been served on the trademark agency shall be deemed to have been served on the party concerned.

As for the date of service of any document on the parties concerned by the Trademark Office or the Trademark Review and Adjudication Board, if the document is delivered by mail, the date of service shall be deemed as the date of the mailing indicated by a postmark on the document received by the party concerned. In the event that a postmark is not clear or there is no postmark, the document shall be deemed as having been served on the party concerned 15 days after it is sent out, except the party concerned can prove the actual receipt date; if the document is delivered directly, the date of service shall be deemed as the date when it is delivered; in the event that the document is submitted by data message, it shall be deemed as having been served on the party concerned 15 days after it is sent out, except the party concerned can prove the date when the document enters the electric system. In the event that it is impossible to deliver a document by the above means, it may be served on the parties concerned via public announcement. The document shall be deemed as having been served 30 days after the public announcement is made.

 

Rule 11  The following periods shall not be included in the trademark examination and hearing periods:

1. the period when the document and announcement of the Trademark Office or the Trademark Review and Adjudication Board are being sent;

2. the period when the party concerned needs to add evidence or supplementary documents and when the change in the party concerned leads to a new defense;

3. the period needed for application, submission and use of evidence and for negotiation and draw;

4. the period when the determination on priority needs waiting; and

5. the period when the result of hearing of priority cases is waited according to the request of the case applicant during the examination and hearing.

 

Rule 12  Unless it is otherwise provided in Paragraph 2 of this Rule, the beginning day of all periods specified in the Trademark Law and the Regulations shall not be included. The periods calculated by years or months, the corresponding day of the last month in the period shall be the expiration date; if there is no corresponding day in the month, the last day thereof shall be the expiration date; if the expiration date falls on a holiday, the first working day after the holiday shall be the expiration date.

The period of validity of a registered trademark specified in Articles 39 and 40 of the Trademark Law shall be calculated as of the appointed day and the day before the corresponding day of the last month in the period shall be the expiration date; if there is no corresponding day in the month, the last day thereof shall be the expiration date.

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Chapter II Application for Trademark Registration

Rule 13  An application for trademark registration shall be made according to the published classification table of commodities and services. For each trademark registration application, the applicant shall submit to the Trademark Office a copy of the Application for Trademark Registration and a copy of the trademark design; in the event that an application is filed for the registration of a trademark with a specific combination of colors or a colored design, the colored design sand a copy of a black and white draft shall be submitted; in the event that a color is not designated, the black and white draft shall be submitted.

The trademark designs shall be clear and easy to attach. They shall be printed on appropriate smooth and durable paper or alternatively be detailed via photos, the size of which shall be not more than ten centimeters but not less than five centimeters in length or width.

In the event that an application is filed for a three-dimensional trademark, it shall be clearly stated in the application to specify the usage of the trademark and a design capable of displaying the properties of a three-dimensional shape shall be submitted and the submitted trademark design shall at least include a three-view drawing.

In the event that an application is filed for the registration of a trademark with a specific combination of colors, it shall be clearly specified in the application to specify the usage of the trademark.

In the event that an application is filed for the registration of a trademark with audio logo, it shall be clearly specified in the application, a satisfactory voice sample shall be submitted and the audio trademark applied for registration shall be described to specify the usage of the trademark. Where the audio trademark is described, the audio applied for trademark shall be described by stave or notation and illustrated by words; where the audio trademark cannot be described by stave or notation, it shall be illustrated by words; the trademark description and the voice sample shall be consistent.

In the event that an application is filed for the registration of a collective mark or a certification mark, it shall be specified in the application, and a certification document pertaining to the qualifications of the subject as well as the rules governing its use and the administration shall be submitted.

In the event that a trademark is in a foreign language or involves the use of a foreign language, the meaning of the foreign language shall be explained.

 

Rule 14  To apply for trademark registration, the applicant shall submit certificates that prove their identification. The name of the applicant for trademark registration shall be identical to the name on the certificates submitted.

The provisions of the preceding paragraph on submission of identification documents by the applicant shall apply to the change, transfer, renewal, objection and cancellation of trademarks and other matters pertaining to trademarks submitted to the Trademark Office for handling.

 

Rule 15  The name of a commodity or service shall be categorized based on the classification No. and name in the table of classification of commodities and services. In the event that the name of an appropriate commodity or service is not included in the table of classification of commodities and services, an explanation shall be given concerning the commodity or service in question.

The trademark registration application and other relevant documents submitted in writing shall be typed or printed.

Paragraph 2 of this Rule shall apply to the handling of other matters on trademarks.

 

Rule 16  In the event that more than one applicant jointly applies for the registration of the same trademark or handling other matters on a joint trademark, a representative shall be designated in the application. In the absence of a named representative, the first person in sequence in the application shall be considered as the representative.

Documents of the Trademark Office and the Trademark Review and Adjudication Board shall be sent to the representatives.

 

Rule 17  In the event that an applicant changes its name, address, agent or document receiver, or deletes any of the designated commodities, it shall apply to the Trademark Office for alterations to the application.

In the event that the applicant transfers it application for trademark registration, it shall conduct transfer procedures with the Trademark Office.

 

Rule 18  The date of an application for trademark registration shall be deemed as the date when the Trademark Office receives the relevant application documents.

If the application procedures are complete, and the application documents have been filed according to the relevant provisions and fees are paid, the Trademark Office shall accept the application and notify the applicant in writing. If the application procedures are incomplete, or the application documents fail to be filed according to the relevant provisions or the fees fail to be paid, the Trademark Office shall refuse to accept the application and inform the applicant in writing, together with an explanation of the reasons for the refusal. If an application's procedures are provisionally completed or the application documents provisionally conform to the relevant provisions but need corrections, the Trademark Office shall notify the applicant of corrections, and instruct them to make corrections as required and send them back to the Trademark Office within 30 days upon receipt of the notice. If corrections are made within the required time period and sent back to the Trademark Office, the original date of the application shall be retained. If the applicant fails to make corrections within the specified time period or the corrections fail to comply with the requirements, the Trademark Office shall not accept the application and inform the applicant as such in writing.

Provisions on acceptance conditions in Paragraph 2 of this Rule shall apply to the handling of other matters on trademarks.

 

Rule 19  If two or more applicants apply on the same date for the registration of identical or similar trademarks for the same or similar kind of commodity, each applicant shall, within 30 days upon receipt of the notice from the Trademark Office, submit proof of the date when the trademark was first used prior to the application. In the event that the trademarks were first used on the same day, or that neither has yet been used, the applicants shall settle the matter through negotiations within 30 days upon receipt of the notice from the Trademark Office, and any such agreement shall be submitted to the Trademark Office in writing. If the parties refuse to negotiate or fail to reach an agreed settlement, the Trademark Office shall inform them of determination of the official applicant by way of drawing lots, and subsequently the applications of other applicants shall be rejected. In the event that an applicant has been so notified by the Trademark Office but it fails to participate in the drawing of lots, it shall be deemed to have rescinded its application, and the Trademark Office shall inform, in writing, the applicant who fails to draw lots.

 

Rule 20  In the event that an applicant requests priority according to the provisions of Article 25 of the Trademark Law, a duplicate of the original application documents submitted for trademark registration shall be subject to certification by the relevant competent department of trademark affairs that has accepted the application and shall specify the date and sequence number of the said application.

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Chapter III Examination of Applications for Trademark Registration

Rule 21  The Trademark Office shall examine applications that it has accepted for a trademark registration according to the relevant provisions of the Trademark Law and the Regulations, and grant preliminary approval via a public announcement to applications that satisfy requirements and to applications that satisfy requirements for the registration of a trademark to be used on certain designated commodities. If an application does not satisfy requirements nor does an application for the registration of a trademark to be used on certain designated commodities, the applicant shall be notified of the refusal in writing with an explanation of the reasons.

 

Rule 22  Where the Trademark Office rejects a trademark registration application in terms of certain designated commodities, the applicant may divide the partial application preliminarily approved into another application and the divided application shall keep dated as the original application.

Where the application needs dividing, the applicant shall apply to the Trademark Office for division within 15 days upon receipt of Notice on Partial Rejection to Trademark Registration Application from the Trademark Office.

Upon receipt of the division application, the Trademark Office shall divide the original application into two parts and announce the new application number formed by the divided application preliminarily approved.

 

Rule 23  In accordance with the provisions of Article 29 of the Trademark Law, the Trademark Office deems that the contents of the trademark registration application need specifying or correcting, the applicant shall make explanations or corrections within 15 days after receipt of the notice of the Trademark Office.

 

Rule 24  In the event that an objection is raised against a trademark to which the Trademark Office has granted preliminary approval by public announcement, the objector shall submit to the Trademark Office the following materials for statement of objection in duplicate indicating the original and the copy:

1. trademark objection application;

2. identification certificates of the objector;

3. certificates to prove the objector is the priority holder or an interested person where the objection is raised for the violation of Paragraphs 2 and 3 of Article 13, Article 15, Paragraph 1 of Article 16, and Articles 30, 31 and 32 of the Trademark Law.

Trademark objection application shall have clear request and factual basis and the relevant evidence material shall be submitted.

 

Rule 25  Upon receipt of a trademark objection application, the Trademark Office shall, after examination, accept the application if it satisfies requirements and send to the applicant the acceptance notice.

 

Rule 26  Where a trademark objection application falls under the following circumstances, the Trademark Office shall not accept the application, and shall inform the applicant in writing with an explanation of the reasons:

1. the application fails to be submitted within the legal time limit;

2. the qualification as a subject of an applicant and the reason for an objection do not comply with the provisions of Article 33 of the Trademark Law;

3. there is no clear reason, fact or legal basis for an objection; and

4. the same objector submits an objection application again against the same trademark with the same reason, fact or legal basis.

 

Rule 27  The Trademark Office shall send a copy of materials related to the trademark objection to the person challenged timely, and instruct it to defend within 30 days after receipt of the copy. If the person challenged does not defend, any decision made by the Trademark Review and Adjudication Board shall not be affected.

In the event that any of the parties concerned is required to supplement the relevant material evidence after either filing the application or statement of defense to the application, it shall claim the requirement in the relevant application or statement of defense, and shall submit the relevant material evidence within three months after filing the application or submitting the statement of defense. If it fails to do so within the specified time period, it shall be deemed that the supplementing of the relevant material evidence has been abandoned; provided that the evidence is formed after the expiration or fails to be submitted before the expiration due to other just reasons but is submitted after the expiration, the Trademark Office shall send the evidence to the other party concerned and may admit the evidence after the cross-examination.

 

Rule 28  Decision on refusal of registration in Paragraph 3 of Article 35 and Paragraph 1 of Article 36 of the Trademark Law includes the decision on refusal of registration of certain designated commodities.

Where a registration announcement is published before the Trademark Office makes the decision on approval or refusal of the registration of the trademark with objections, such announcement shall be cancelled. Where the trademark is approved to be registered after the objection is found to be not justified upon examination, the trademark shall be announced again after the decision on approval of the registration comes into force.

 

Rule 29  Where a trademark registration applicant or a trademark registrant submits the application for correction in accordance with the provisions of Article 38 of the Trademark Law, a correction application shall be submitted to the Trademark Office. Where the application meets the correction conditions, the relevant contents shall be corrected after the approval of the Trademark Office; where the application does not meet the correction conditions, the Trademark Office shall not approve it and shall inform the applicant in writing and provide reasons.

Where a preliminary approval announcement has been published or the trademark registered and announced is corrected, a correction announcement shall be published.

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Chapter IV Alteration, Transfer and Renewal of Registered Trademarks

Rule 30  To alter or change the name, address or other information pertaining to a trademark registrant, an applicant shall file an application for alteration with the Trademark Office. To alter the name of a trademark registrant, the applicant shall also submit certification documents pertaining to the alteration as issued by the relevant registration authority. The Trademark Office shall, upon approval of the application, issue a corresponding certificate to the trademark registrant and issue a public announcement. If approval is not granted, the applicant shall be informed in writing with an explanation of the reasons.

To alter the name or address of a trademark registrant, the registrant shall also accordingly alter all of its registered trademarks at the same time, if it fails to do so, the Trademark Office shall instruct it to make corrections within the specific time limit; if the corrections fail to be made within the specific time limit, it shall be deemed that the alteration application has been abandoned and the Trademark Office shall inform the applicant in writing.

 

Rule 31  In order to transfer a registered trademark, the transferor and the transferee shall jointly file an application with the Trademark Office for the transfer of the registered trademark. The transferor and the transferee shall jointly undertake the application procedures pertaining to the transfer. The Trademark Office shall, after granting approval to the transfer of a registered trademark, issue a corresponding certificate to the transferee and issue a public announcement.

To transfer a registered trademark, if the trademark registrant fails to transfer all of its identical or similar trademarks that are used on identical or similar commodities, the Trademark Office shall instruct it to do so within a prescribed time limit. If it still fails to transfer during the specified time period, it shall be deemed that the application for transfer of the trademark has been abandoned, and the Trademark Office shall inform the applicant in writing.

 

Rule 32  In the event that an exclusive right to use a registered trademark is transmitted due to inheritance or any reason other than trademark transfer, the party that accepts the exclusive right to use the registered trademark shall handle the procedures of transmitting the exclusive right by presenting the relevant certification documents or legal documents to the Trademark Office.

In the event that an exclusive right to use a registered trademark is transmitted, any identical or similar trademarks that the right holder has registered on identical or similar commodities shall also be transmitted at the same time. If it fails to transmit the said trademarks, the Trademark Office shall instruct it to do so within a specified time limit. If it still fails to do so within the specified time period, it shall be deemed that the application for transmitting the registered trademark has been abandoned, and the Trademark Office shall inform the applicant in writing.

The trademark transmission application approved shall be announced. The party concerned who accepts the transmission of the exclusive right to use a registered trademark enjoys such right as of the date of announcement.

 

Rule 33  In the event that the registration of a registered trademark needs to be renewed, an application for renewal is required to be filed with the Trademark Office. The Trademark Office shall, upon approving the aforementioned application, issue a corresponding certificate and issue a public announcement.

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Chapter V International Registration of Trademarks

Rule 34  International registration of trademarks specified in Article 21 of the Trademark Law refers to Madrid international registration of trademarks handled in accordance with Madrid Agreement Concerning the International Registration of Trademarks (hereinafter referred to as the "Madrid Agreement"), Protocol Relating to the Madrid Agreement Concerning the International Registration of Trademarks (hereinafter referred to as the "Madrid Protocol") and the Common Implementing Rules on the Madrid Agreement Concerning the International Registration of Trademarks and the Protocol Relating to that Agreement.

Applications for Madrid international registration of trademarks include applications for international registration of trademarks with China as the country of origin, applications designating China for territorial extension, and other related applications.

 

Rule 35  Applicants for international registration of a trademark with China as the country of origin shall have a genuine and existing business place in China, or have its domicile in China, or must be of Chinese nationality.

 

Rule 36  For applicants who meet the provisions of Rule 35 hereof, if their trademarks have been registered with the Trademark Office, they may apply for international registration of the trademarks in accordance with the Madrid Agreement.

For applicants who meet the provisions of Rule 35 hereof, if their trademarks have been registered with the Trademark Office or they have submitted a trademark registration application to the Trademark Office and such application has been accepted, they may apply for international registration of the trademarks in accordance with the Madrid Protocol.

 

Rule 37  Applicants applying for international registration of their trademarks with China as the country of origin shall proceed with their application to the International Bureau of the World Intellectual Property Organization (hereinafter referred to as the International Bureau) through the Trademark Office.

In case of the application for later designation, waiver and cancellation with regards to the international registration of trademarks related to the Madrid Agreement, the applicants applying for international registration of their trademarks with China as the country of origin shall proceed with their application to the International Bureau through the Trademark Office; in case of the application for transfer, abridgement of contents, modification and renewal with regards to the international registration of trademarks related to the Madrid Agreement, the applicants applying for international registration of their trademarks with China as the country of origin may handle the said matters either with the International Bureau through the Trademark Office, or directly with the International Bureau.

In case of the application for later designation, transfer, abridgement of contents, waiver, cancellation, modification and renewal with regards to the international registration of trademarks related to the Madrid Protocol, the applicants applying for international registration of their trademarks with China as the country of origin may handle the said matters either with the International Bureau through the Trademark Office, or directly with the International Bureau.

 

Rule 38  Applicants applying for international registration of trademarks or for handling other relevant application to the International Bureau through the Trademark Office shall submit applications and the relevant materials that meet the requirements of the International Bureau and the Trademark Office.

 

Rule 39  Commodities or services designated in the application for the international registration of their trademarks shall not go beyond the scope of the commodities or services basically applied for or basically registered within China.

 

Rule 40  Where the particulars of the application for international registration of the trademark are not complete and the application is not filled out as prescribed, the Trademark Office shall not accept the application, and the application date may not be retained.

Where the particulars of the application are basically complete or the application basically complies with the provisions but corrections are still needed, the applicant shall make corrections within 30 days after receipt of the notice; if the applicant fails to do so, the Trademark Office shall not accept the application and notify the applicant in writing.

 

Rule 41  Applicants applying for international registration of trademarks or for handling other relevant application to the International Bureau through the Trademark Office shall pay fees in accordance with the provisions.

Applicants shall, within 15 days after receipt of the payment notice from the Trademark Office, pay the Trademark Office the fees. Where the fees fail to be paid at the expiration, the Trademark Office shall not accept the application and notify the applicant in writing.

 

Rule 42  The Trademark Office shall, within the time limit for rejection specified in the Madrid Agreement or the Madrid Protocol (hereinafter referred to as the "time limit for rejection") and in accordance with the relevant provisions of the Trademark Law and the Regulations, inspect the extension application for territory designated in China, make a decision and notify the International Bureau. If the Trademark Office fails to send a rejection notice or a partial rejection notice within the time limit for rejection, the extension application for territory shall be deemed to be approved.

 

Rule 43  Where the applicant for extension of the territory designated in China requires to protect the trademark with three-dimensional trademarks, color combination and audio logo or requires to protect collective trademarks or certification trademarks, it shall, within three months after the date of registration of the trademark with the international registration book of the International Bureau, submit the relevant materials specified in Rule 13 hereof to the Trademark Office through a legally established trademark agency. If it fails to submit the relevant materials within the aforesaid time limit, the Trademark Office shall reject the extension application for territory.

 

Rule 44  The World Intellectual Property Organization shall announce the issues concerning the international registration of trademarks and the Trademark Office shall not separately make an announcement.

 

Rule 45  In case of the extension application for territory designated in China, the objector that meets the conditions specified in Article 33 of the Trademark Law may, within three months after the first day of the following month since the World Intellectual Property Organization organizes the publication of the International Trademark Announcement, submit to the Trademark Office an objection application.

The Trademark Office shall, within the time limit for rejection, notify the International Bureau of the information related to the objection application in the form of a rejection decision.

The person challenged may make a defense within 30 days after receipt of the objection notice forwarded by the International Bureau and the statement of defense and the relevant materials shall be submitted to the Trademark Office through a legally established trademark agency.

 

Rule 46  For the internationally registered trademark protected in China, the period of validity shall be calculated as of the date of international registration or the date designated later. Before the expiration of the period of validity, the registrant may apply to the International Bureau for renewal. If the registrant fails to apply for renewal within the period of validity, a six-month extension may be given. The Trademark Office shall, after receipt of the renewal notice from the International Bureau, conduct an inspection in accordance with the law. If the International Bureau notifies the Trademark Office of the failure of renewal, the internationally registered trademark shall be cancelled.

 

Rule 47  Where applicants apply for transferring extension of territory designated in China, the transferee shall have a genuine and existing business place in the country of the contracting party, or have its domicile in the country of the contracting party, or must be of the nationality of the contracting party.

Where the transferor does not transfer the identical or similar trademark on the identical or similar commodity or service, the Trademark Office shall notify the registrant of making corrections within three months as of the date of issuance of the notice; where the corrections fail to be made within the time limit or the transfer is easy to cause confusion or have other adverse effects, the Trademark Office shall make a decision that such transfer is invalid in China and report to the International Bureau.

 

Rule 48  Where applicants apply for cutting extension of territory designated in China and the commodity or service cut does not meet the classification requirements of the relevant commodities or services of China or goes beyond the scope of originally designated commodities or services, the Trademark Office shall make a decision that such cut is invalid in China and report to the International Bureau.

 

Rule 49  Where applicants apply for canceling internationally registered trademarks in accordance with the provisions of Paragraph 2 of Article 49 of the Trademark Law, they shall apply to the Trademark Office after three years as of the expiration date of the time limit for rejection of international registration application of the trademarks; where, upon the expiration of the time limit for rejection, such trademarks are refused for review or are under procedures relating to objections, the applicants shall apply to the Trademark Office after three years as of the date when the decisions on approval of the registration made by the Trademark Office or the Trademark Review and Adjudication Board take effect.

Where applicants apply for declaring the internationally registered trademarks invalid in accordance with the provisions of Paragraph 1 of Article 44 of the Trademark Law, they shall apply to the Trademark Review and Adjudication Board after the expiration date of the time limit for rejection of international registration application of the trademarks; where such trademarks are refused for review or are under procedures relating to objections, the applicants shall apply to the Trademark Review and Adjudication Board as of the date when the decisions on approval of the registration made by the Trademark Office or the Trademark Review and Adjudication Board take effect.

Where applicants apply for declaring the internationally registered trademarks invalid in accordance with the provisions of Paragraph 1 of Article 45 of the Trademark Law, they shall apply to the Trademark Review and Adjudication Board within five years as of the expiration date of the time limit for rejection of international registration application of the trademarks; where such trademarks are refused for review or are under procedures relating to objections, the applicants shall apply to the Trademark Review and Adjudication Board within five years as of the date when the decisions on approval of the registration made by the Trademark Office or the Trademark Review and Adjudication Board take effect. For abusive registration, the holders of well-known trademarks are not subject to the five-year time limit.

 

Rule 50  The provisions of the following terms in the Trademark Law and the Regulations shall not apply to the handling of issues concerning international registration of trademarks:

1. the provisions on review and hearing periods specified in Article 28 and Paragraph 1 of Article 35 of the Trademark Law;

2. Rule 22 and Paragraph 2 of Rule 30 of the Regulations; and

3. the provisions on joint application and procedures for trademark transfer by the transferor and the transferee specified in Article 42 of the Trademark Law and Rule 31 of the Regulations.

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Chapter VI Trademark Appraisal

Rule 51  Trademark appraisal refers to the hearing of issues concerning trademark disputes by the Trademark Review and Adjudication Board in accordance with the provisions of Articles 34, 35, 44, 45 and 54 of the Trademark Law. Applicants applying to the Trademark Review and Adjudication Board for trademark appraisal shall have clear requests, facts, reasons and legal basis and provide corresponding evidence.

The Trademark Review and Adjudication Board makes appraisals in accordance with the law and on the basis of facts.

 

Rule 52  Where the Trademark Review and Adjudication Board hears the review case for disagreement with the decision on rejecting the trademark registration application made by the Trademark Office, it shall hear the case based on the rejection decision made by the Trademark Office and facts, reasons and requests for applying for review by the applicants as well as the factual situation in the appraisal.

Where the Trademark Review and Adjudication Board finds, when hearing the review case for disagreement with the decision on rejecting the trademark registration application made by the Trademark Office, the trademark applied for registration violates the provisions of Articles 10, 11 and 12 and Paragraph 1 of Article 16 of the Trademark Law but the Trademark Office fails to make a rejection decision in accordance with the above terms, it may make a decision on rejecting the application for review in accordance with the above terms. The Trademark Review and Adjudication Board shall listen to the opinions of the applicant before making the review decision.

 

Rule 53  Where the Trademark Review and Adjudication Board hears the review case for disagreement with the decision on disapproving trademark registration made by the Trademark Office, it shall hear the case based on the disapproval decision made by the Trademark Office and facts, reasons and requests for applying for review by the applicants as well as the opinions raised by the original objector.

Where the Trademark Review and Adjudication Board hears the review case for disagreement with the decision on disapproving trademark registration made by the Trademark Office, it shall notify the original objector of participating in the hearing and proposing some opinions. If the opinions of the original objector have substantial effects on the hearing result of the case, they can be taken as evidence of appraisal; if the original objector does not participate in the hearing and propose some opinions, it will not affect the hearing of the case.

 

Rule 54  The Trademark Review and Adjudication Board shall, when hearing the case for the request for declaring the registered trademarks invalid in accordance with Articles 44 and 45 of the Trademark Law, hear the case based on the application of the party concerned and facts, reasons and requests defended by the applicants.

 

Rule 55  Where the Trademark Review and Adjudication Board hears the review case for disagreement with the decision on declaring the registered trademarks invalid made by the Trademark Office in accordance with the provisions of Paragraph 1 of Article 44 of the Trademark Law, it shall hear the case based on the decision made by the Trademark Office and facts, reasons and requests for applying for review by the applicants.

 

Rule 56  Where the Trademark Review and Adjudication Board hears the review case for disagreement with the decision on cancelling or maintaining a registered trademark made by the Trademark Office in accordance with the provisions of Article 49 of the Trademark Law, it shall hear the case based on the decision on cancelling or maintaining the registered trademark made by the Trademark Office and facts, reasons and requests for applying for review by the party concerned.

 

Rule 57  To apply for an appraisal of a trademark, the applicant shall file an application with the Trademark Review and Adjudication Board and submit a number of copies of the said application equal to the number of parties concerned. If an application is filed requesting a review of a decision made by the Trademark Office, a copy of the relevant decision shall also be attached.

Upon receipt of an application, the Trademark Review and Adjudication Board shall accept the application if it satisfies requirements, otherwise the Trademark Review and Adjudication Board shall not accept it, and shall inform the applicant in writing with an explanation of the reasons. If the application requires corrections, the applicant shall be notified of the relevant corrections within 30 days upon receipt of the notice. If the application still does not meet the requirements, the Trademark Review and Adjudication Board shall not accept it and inform the applicant in writing with an explanation of the reasons. If the applicant fails to make the corrections during the specified time limit, then it shall be deemed that the application has been withdrawn, and the Trademark Review and Adjudication Board shall notify the applicant in writing.

If the Trademark Review and Adjudication Board finds an application for an appraisal of a trademark does satisfy the requirements for acceptance after it is accepted, it shall reject it and inform the applicant in writing with an explanation for the reasons.

 

Rule 58  After accepting an application for an appraisal of a trademark, the Trademark Review and Adjudication Board shall send a copy of the application to the relevant the other party concerned in good time, and instruct it to defend within 30 days upon receipt of the copy. If it fails to defend within the specified time limit, any relevant appraisal by the Trademark Review and Adjudication Board shall not be affected.

 

Rule 59  In the event that any of the parties concerned is required to supplement the relevant material evidence after either filing the application requesting an appraisal or statement of defense to the application, it shall claim the requirement in the relevant application or statement of defense, and shall submit the relevant material evidence within three months after filing the application for an appraisal or submitting the statement of defense. If it fails to do so within the specified time limit, it shall be deemed that the supplementing of the relevant material evidence has been abandoned; provided that the evidence is formed after the expiration or fails to be submitted before the expiration due to other just reasons but is submitted after the expiration, the Trademark Review and Adjudication Board shall send the evidence to the other party concerned and may admit the evidence after the cross-examination.

 

Rule 60  The Trademark Review and Adjudication Board may, based on a request by the parties concerned or on actual needs of the case, decide whether to conduct the oral appraisal of an application.

In the event that the Trademark Review and Adjudication Board decides to conduct an oral application appraisal, it shall notify the parties concerned in writing, 15 days prior to the oral appraisal, of the date, the venue and the details of those persons conducting the appraisal relating to the oral appraisal. The parties concerned shall reply within the time limit specified in the relevant notice.

If an applicant neither replies nor attends the oral appraisal, it shall be deemed that the application for appraisal has been withdrawn, and the Trademark Review and Adjudication Board shall inform the applicant in writing. If the party against whom the application is filed neither replies nor attends the oral appraisal, the Trademark Review and Adjudication Board may make a default appraisal.

 

Rule 61  An applicant may request the withdrawal of the application in writing prior to a decision or ruling from the Trademark Review and Adjudication Board and issue a written explanation. If the Trademark Review and Adjudication Board deems that the application may be withdrawn, the appraisal procedures shall be terminated.

 

Rule 62  Once an applicant has withdrawn its application for trademark appraisal, it may not file any further application based upon the same facts and reasons. If the Trademark Review and Adjudication Board has made a decision or ruling on the application for trademark appraisal, no one may file further applications based on the same facts and reasons, except that the applicant files an application with the Trademark Review and Adjudication Board for declaring invalid the registered trademarks that have been approved to be registered through review procedures after refusal of registration.

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Chapter VII Administration of the Use of Trademarks

Rule 63  For the use of a registered trademark, it may be marked with the words "registered trademark" or a mark of registration on the commodities, commodity packaging, instructions or other accessories.

Marks of registration include the encircled letter "R". The mark of registration shall be positioned at the upper right corner or lower right corner of the relevant trademark.

 

Rule 64  In the event that a Certificate of Trademark Registration is missing or has been damaged, the registrant shall submit an application to the Trademark Office for reissuance of such certificate. If a Certificate of Trademark Registration is missing, a lost property notice shall be published in the Trademark Announcements. The damaged Certificate of Trademark Registration shall be returned to the Trademark Office when the registrant files an application for reissuance of a certificate.

Where a trademark registrant is in need of the trademark change, transfer or renewal certificated re-issued by and the trademark registration certificate issued by the Trademark Office or where a trademark applicant requires the Trademark Office to issue priority right documentary evidence, the relevant applications shall be submitted to the Trademark Office. If the application meets the relevant requirements, the Trademark Office shall issue the relevant certificates; if not, the Trademark Office may refuse the application and notify the applicant of the reason concerned.

Any person who forges or alters a Certificate of Trademark Registration or other trademark documentary evidence shall be subject to criminal liabilities according to the provisions of the Criminal Law of the People's Republic of China pertaining to the crime of forging or altering certificates of state organs or to other relevant crimes.

 

Rule 65  Any entity or any individual may submit an application, attached with the relevant documentary evidence, to the Trademark Office for cancellation of a registered trademark under any of the circumstances described in Article 49 of the Trademark Law, which has become the generic name of goods approved for use. After acceptance, the Trademark Office shall notify the trademark registrant and order it to defend within two months upon receipt of the notice. If no defense has been made before the expiration, any decision made by the Trademark Office shall be subject to no influence.

 

Rule 66  Any entity or any individual may, upon explanation of the relevant facts, request the Trademark Office to cancel a registered trademark under any of the circumstances described in Article 49 of the Trademark Law which has been registered but not used for three consecutive years without any good reason. After acceptance, the Trademark Office shall notify the trademark registrant and order it to submit, within two months upon receipt of the notice, the relevant material evidence for using the trademark before the cancellation application is filed or to state the justifications for not using the trademark. If it fails to submit any material evidence as proof within the time limit, or the said evidence is invalid, and it has no other justifiable reasons, the registered trademark shall be canceled by the Trademark Office.

The term "material evidence" as mentioned in the preceding paragraph shall include the materials proving a trademark registrant's use of the registered trademark and materials proving a registrant has licensed other persons to use the said registered trademark.

Anyone applying for cancelling a registered trademark by claiming such trademark has been stopped for use for three consecutive years without any justification shall make such cancellation application after expiration of three years as of the announcement date of the registration of the trademark concerned.

 

Rule 67  Justifiable reasons as described in Article 49 of the Trademark Law include:

1. force majeure;

2. policy limitations set by the government;

3. bankruptcy liquidation; and

4. other justifiable reasons that can make the trademark registrant free from liability.

 

Rule 68  If the reasons for the Trademark Office or Trademark Review and Adjudication Board's decision to cancel a registered trademark or declare a registered trademark invalid concern only certain designated commodities, only the registration of registered trademarks that are used for these designated commodities shall be canceled or declared to be invalid.

 

Rule 69  In the event that other persons are licensed to use a registered trademark, the licensor shall, within the term of the license contract, apply to the Trademark Office for record-keeping and submit the relevant record-keeping materials. The record-keeping materials shall state the licensor of use of the registered trademark, the licensee, license term, the range of commodities or services licensed to use and other relevant matters.

 

Rule 70  In the event that the exclusive right to use a registered trademark is pledged, the pledger and the pledgee shall conclude a pledge contract in written form and shall jointly file a pledge registration application with the Trademark Office, which will later makes the relevant announcement.

 

Rule 71  Anyone who violates the provisions of Paragraph 2 of Article 43 of the Trademark Law shall be ordered by the administrative department of industry and commerce to make the necessary corrections within a specified time limit. If he or she fails to do so within that time limit, the relevant sales shall be ordered to be stopped; if he or she even refuses to stop the sales, a fine of not more than CNY100,000 shall be imposed.

 

Rule 72  In the event that a trademark holder asks for well-known trademark protection as provided in Article 13 of the Trademark Law, it may request the administrative department of industry and commerce for it. If the Trademark Office affirms on the basis of Article 14 of the Trademark Law that the trademark is deemed as well-known, then the administrative department of industry and commerce shall order the infringing party to cease acts pertaining to the use of the relevant well-known trademark, which is against the provisions of Article 13 of the Trademark Law. Any relevant trademark sign shall be confiscated and destroyed. If the trademark signs are inseparable from the associated commodities, they shall be confiscated and destroyed together.

 

Rule 73  In order to apply to write off a registered trademark or the registration of a trademark on certain designated commodities, a trademark registrant shall file an application with the Trademark Office and return the original Certificate of Trademark Registration.

In the event that a trademark registrant requests writing off a registered trademark or writing off the registration of a trademark on certain designated commodities and such request has been approved by the Trademark Office, the exclusive right to use the registered trademark or to use it on certain designated commodities shall be terminated, effective from the date when the Trademark Office receives a request to write off the relevant registered trademark.

 

Rule 74  In the event that a registered trademark is canceled or written off according to the provisions of Rule 73 of the Regulations, the original Certificate of Trademark Registration shall be invalidated through an announcement. If the registration of the trademark on certain designated commodities is canceled or if the registrant requests its registration on those commodities is canceled or written off, the Trademark Office shall reissue a Certificate of Trademark Registration and issue an announcement.

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Chapter VIII Protection of the Exclusive Right to Use Registered Trademarks

Rule 75  Circumstances of providing convenience as specified in Item 6 of Article 57 of the Trademark Law include intentionally facilitating an infringement by another person or party of an exclusive right to use a registered trademark through providing storage, transportation, posting, printing, concealment, business place, network commodity trading platform and similar.

 

Rule 76  Act that is deemed as an infringement of the exclusive right to use a registered trademark as mentioned in Item 2 of Article 57 of the Trademark Law include using a sign identical or similar to the registered trademark owned by another person on identical or similar commodities as the name or decoration of a commodity in a way that the general public are misled.

 

Rule 77  With regard to any act of infringement of an exclusive right to use a registered mark, any person may file a complaint with or report to the administrative department of industry and commerce.

 

Rule 78  Factors that may be taken into account when the income from illegal business as described in Article 60 of the Trademark Law is calculated are as follows:

1. sales price of infringing goods;

2. marked price of infringing goods unsold;

3. average selling price of infringing goods that have been confirmed;

4. middle market price of infringed goods;

5. operating revenue received by the infringer from infringement; and

6. other factors that can help to calculate the value of infringing goods reasonably.

 

Rule 79  Circumstances that can prove the goods are legally acquired as described in Article 60 of the Trademark Law are as follows:

1. the supply list and payment receipt with legal signature or seal of the supplier have been obtained and they have been conformed to be real or have been recognized by the supplier;

2. the purchasing contract between the supplier and the seller has been concluded and the relevant obligation has been fulfilled after confirmation;

3. the legal invoice for purchase has been received and matters recorded thereon are in consistent with the goods concerned; and

4. other circumstances that can prove the goods concerned are legally acquired.

 

Rule 80  Where anyone sells goods infringing others' exclusive right to use a registered trademark but is not aware of the infringement, can justify that the goods are legally obtained and can give the name of the provider, the administrative department of industry and commerce shall order him or her to stop the selling and shall report the case to the local administrative department of industry and commerce in the place where the provider of infringing goods is located.

 

Rule 81  Where the registered trademark right involved in a case is currently trailed by the Trademark Office, Trademark Review and Adjudication Board or the people's court and the trial result may influence the nature of the case, it can be decided that there is a dispute over trademark right according to Paragraph 3 of Article 62 of the Trademark Law.

 

Rule 82  In the process of investigating a trademark infringement case, the administrative department of industry and commerce may request the obligee to identify whether the goods involved in the case are produced by it or produced under its authorization.

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Chapter IX Trademark Agency

Rule 83  The term "trademark agency business" as mentioned in the Trademark Law refers to accepting the work consigned by the consignor and handling trademark-related matters in the name of the consignor, such trademark registration application and trademark appraisal.

 

Rule 84  The term "trademark agency" as mentioned in the Trademark Law includes service agencies and law firms engaged in trademark agency business that have been registered in administrative department of industry and commerce.

For a trademark agency engaged in trademark agency business under administration of the Trademark Office and the Trademark Review and Adjudication Board, it shall submit the following information to the Trademark Office for record filing:

1. the registration certificates verified by administrative department of industry and commerce or the documentary evidence of setting up a law firm under judicial administrative organ's approval, with copies saved together;

2. basic information of the trademark agency, such as name, address, principal and contact way; and

3. list of trademark agency business practitioners and their contact information.

Administrative department of industry and commerce shall also set a credit file for trademark agencies. Where a trademark agency violates the Trademark Law or any provision hereof, the Trademark Office or the Trademark Review and Adjudication Board may make a public announcement and record the relevant facts into the credit file of the agency concerned.

 

Rule 85  The term "trademark agency business practitioners" as mentioned in the Trademark Law refers to employees of a trademark agency that are engaged in trademark agency business.

No trademark agency business practitioner can accept a commission in his or her own name.

 

Rule 86  The relevant application documents submitted to the Trademark Office and the Trademark Review and Adjudication Board by a trademark agency shall be affixed with the agency's official seal and the signatures of its trademark agency business practitioners concerned.

 

Rule 87  The Trademark Office may refuse to accept a trademark agency's application for registration or transfer of a trademark that is beyond its agency service.

 

Rule 88  Acts disrupting the order of trademark agency market in other improper means as described in Item 2, Paragraph 1 of Article 68 of the Trademark Law include:

1. soliciting business through fraud, false advertising, misleading or commercial bribery and other means;

2. concealing facts, providing false evidence, or threatening and inducing others to conceal facts or provide false evidence; and

3. accepting the commissions of both parties with interests conflicts to the same trademark case.

 

Rule 89  Where a trademark agency conducts any act as specified in Article 68 of the Trademark Law, it shall be investigated and punished by administrative department of industry and commerce at the county level or above of living place of the conductor or the site of such illegal act, and the relevant information shall be reported to the Trademark Office.

 

Rule 90  Where the Trademark Office or the Trademark Review and Adjudication Board stops to accept a trademark agency's business procedures in accordance with the provisions of Article 68 of the Trademark Law, it may also make a decision on stopping to accept the agency's trademark agency business for a period over six months till permanent. After the period of no agency acceptance expires, the Trademark Office or the Trademark Review and Adjudication Board shall resume the acceptance.

The Trademark Office or the Trademark Review and Adjudication Board shall make a public announcement on its website with regard to its decision on cease of acceptance or recovery of acceptance of trademark agency business.

 

Rule 91  The administrative department of industry and commerce shall strengthen the supervision over and guidance for industrial group of trademark agency.

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Chapter X Supplementary Provisions

Rule 92  If a service mark that was in continuous use prior and up to 1 July 1993 is identical or similar to the service mark that was registered for identical or similar services by another person, it may continue to be used. However, if its use has ceased for more than three years after 1 July 1993, it may not continue to be used.

If a trademark that was in continuous use prior and up to the date when the Trademark Office firstly accepts the trademarks of newly-opened commodities or services is identical or similar to the trademark that was registered for identical or similar newly-opened commodities or services by another person, it may continue to be used. However, if its use has ceased for more than three years after the day of first acceptance, it may not continue to be used.

 

Rule 93  The table of commodity and service classification for the registration of trademarks shall be formulated and promulgated by the Trademark Office.

The format of documents pertaining to applications for a trademark registration or to the handling of other matters pertaining to a trademark shall be formulated and promulgated by the Trademark Office or the Trademark Review and Adjudication Board.

The rules for appraisals conducted by the Trademark Review and Adjudication Board shall be formulated and promulgated by the administrative department of industry and commerce under the State Council.

 

Rule 94  Directory of Trademark Registration shall be compiled by the Trademark Office to record registered trademarks and other registration-related matters.

 

Rule 95  The Certificate of Trademark Registration and the relevant proof are the evidence showing the obligee has the exclusive right to use the registered trademark. Registration-related matters stated in the Certificate of Trademark Registration shall be in consistent with those in the Directory of Trademark Registration; if there is any inconsistency, the Directory of Trademark Registration shall prevail unless there is evidence that the Directory of Trademark Registration is false in content.

 

Rule 96  The Trademark Office publishes the Trademark Announcements to publish trademark registration and other relevant matters.

The Trademark Announcements are published in paper or electronic form.

Except for the delivery of an announcement, the content of the announcement shall be deemed as having been known or should have been known by the society as of the date of its promulgation.

 

Rule 97  The relevant fees shall be paid for applications for trademark registration or for handling other matters pertaining to a trademark. The items and standards of the fees shall be separately formulated by the finance department and administrative department of price affairs under the State Council.

 

Rule 98  The Regulations shall come into force as of 1 May 2014.

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