知识分享 (19)

cation shall not be more than four persons, including the agent from an appointed trademark agency. If one party sends several persons to attend the public review and adjudication, he shall appoint one of them as first speaker to make the main presentation.
Rule 56 Before the public review and adjudication begins, the Trademark Review and Adjudication Board may hold a pre-hearing preparatory meeting attended by both parties to solicit their opinions regarding the relevant facts and proofs and to determine the main issues to be investigated in the public review and adjudication.
The collegial panel shall prepare a record of the opinions raised by the interested parties at the preparatory meeting held before the public review and adjudication, and the record shall be verified and signed by both parties.
Rule 57 When the public review and adjudication begins, the collegial panel shall check the identification certificates of the participants of the public review and adjudication and confirm whether or not they are qualified to attend the public review and adjudication and find out whether or not the interested parties and other participants are present at the public review and adjudication.
Rule 58 Before the investigation at the public review and adjudication, the collegial panel shall brief on the case, clarify the main issue in dispute between the two parties, and then proceed to commence the investigation of the public review and adjudication.
Article 59 The investigation of the public review and adjudication proceeds in the order as follows:
(1) the applicant presents his review and adjudication requests and briefs on the relevant facts and evidence;
(2) the respondent makes a defence;
(3) the collegial panel makes verifications as to the review and adjudication requests, grounds, and the evidence furnished by the parties to the case;
(4) the applicant adduces evidence regarding the grounds of the review and adjudication request, the facts and proofs based on which the request is filed; and
(5) the respondent cross-examines the applicant's evidence and raises counter evidence, and the applicant cross-examines the respondent's counter evidence.
Rule 60 In cases of public review and adjudication, evidence shall be presented at the public review and adjudication and cross-examined by the parties. Evidence which has not been cross-examined should not be used as the basis to ascertain the facts in a case. Evidence which the parties accepted at the pre-hearing preparatory meeting and which is recorded on files may do so after the collegial panel makes it clear at the public review and adjudication.
When cross-examining documentary evidence, material evidence or audiovisual reference material, an interested party has the right to request for producing the original of the evidence, except that the original has lost or that there exists evidence showing that the copy or reproduction is consistent with the original.
Rule 61 During the cross-examination, interested parties shall challenge, clarify and argue about the authenticity, relevance, legitimacy and the evidential force of the evidence.
Rule 62 The cross-examination shall proceed in the order as follows:
(1) The applicant produces evidence, and the respondent cross-examines it with the applicant; and
(2) The respondent produces evidence, and the applicant cross-examines it with the respondent.
Rule 63 The members of the collegial panel may question an interested party or witness on relevant facts and evidence and require an interested party or witness to make explanation.
An interested party may question a witness with the consent of the collegial panel.
The interested party shall not question a witness in intimidating or insulting language or manner.
Rule 64 Any witness shall not audit on the public review and adjudication. When a witness is questioned, other witnesses shall not be present.
The Trademark Review and Adjudication Board may ask a witness to cross-examine evidence when necessary.
Rule 65 After the public review and adjudication investigation is over, oral debate may be held. The interested parties make their observations concerning the facts demonstrated by the evidence, the issues in dispute and the matter of application of law.
Where they have no dispute over the evidence and facts of the case, both parties may directly enter into the oral debate on the basis of verification of the evidence and facts.
Rule 66 The oral debate proceeds in the order as follows:
(1) the applicant makes a presentation;
(2) the respondent makes a defence; then
(3) they debate with each other.
During the oral debate, the members of the collegial panel may ask questions.
Rule 67 Where an interested party presents evidence which he has furnished before, but which has not been investigated in the public review and adjudication in the course of the oral debate, the collegial panel may adjourn the debate, and restart the public review and adjudication investigation. The oral debate shall resume after the investigation is over.
Rule 68 After both parties make their observations at the debate, the collegial panel shall first ask the applicant and then the respondent to make their final comments.
Rule 69 After the final comments are made, the public review and adjudication is over. The Trademark Review and Adjudication Board shall make adjudication according to law within a certain period afterward, and send the Adjudication to the interested parties.
Rule 70 The collegial panel shall put the public review and adjudication down in writing, recording the important matters involved in the public review and adjudication. When the public review and adjudication terminates, the collegial panel shall give the record to the interested parties for verification. The interested parties have the right to request for correction of defects or errors in the record. Record that proves to be correct upon verification shall be signed by the interested parties and put on file. Where an interested party refuses to sign the record, the collegial panel shall indicate it in the public review and adjudication record.
The important matters mentioned in the preceding paragraph contain, among other things, following information:
(1) the review and adjudication request, grounds and evidence of the parties;
(2) important facts accepted by both parties; and
(3) any other important matters that need to be put down in writing.
Rule 71 During the public review and adjudication, auditing, photograph-taking, sound-recording and video-recording shall not be allowed without the permission of the Trademark Review and Adjudication Board.
Chapter V Rules on Evidence
Rule 72 If an applicant files an application with the Trademark Review and Adjudication Board or a respondent raises a rebuttal, he shall furnish relevant proofs.
The proofs include, among other things, documentary evidence, material evidence, audiovisual reference material, oral evidence of witnesses, statements made by the parties and appraisal conclusion.
Rule 73 An interested party shall be under the burden of proof to testify the facts on the basis of which he requests for the review and adjudication or on the basis of which one rebut the other party's review and adjudication request.
Where there is no evidence or there is not sufficient evidence to attest to the factual claims by an interested party, the interested party under the burden of proof shall bear the adverse consequences.
Rule 74 Where one interested party expressly acknowledges the facts in a case as stated by the other party, the latter is not under the burden of proof.
The other party's neither acknowledging nor denying the facts claimed by an interested party shall be deemed acknowledgement thereof.
Where an interested party appoints an agent to attend the review and adjudication, the agent's acknowledgement shall be deemed the interested party's acknowledgement, except that the acknowledgement by an agent not specially authorised directly results in the acknowledgement of the review and adjudication request of the other party. Lack of denial, on the part of the interested party present, of the acknowledgement by the agent shall be deemed acknowledgement thereof.
Where an interested party withdraws his acknowledgement before the debate at the public review and adjudication is over and the other party gives his consent thereto, or where there is sufficient evidence to show that his acknowledgement is made under coercion or in the presence of major misunderstanding, the other party shall not be exempt from the burden of proof.
Rule 75 An interested party does not need to adduce evidence to prove the following facts:
(1) facts known to all;
(2) facts deducted from the law;
(3) facts proven according to the law;
(4) facts deducted on the basis of experience and laws of the daily life; and
(5) other facts in respect of which adduction of evidence is not required under the law.
Except that an interested party has evidence to the contrary which is sufficient enough to upset the facts.
Rule 76 An interested party who furnishes the Trademark Review and Adjudication Board with documentary evidence shall furnish the original, including the original text, the authentic text and the copy. The interested party who has difficulty furnishing the original may furnish the Xerox copies, photographs or extracts certified to be consistent with the original. Where the Xerox copies, photographs or extracts, which are certified to be consistent with the original, of the original documentary evidence kept by a relevant department, the sources shall be indicated and sealed thereby upon verification.
Rule 77 An interested party who furnishes the Trademark Review and Adjudication Board with material evidence shall furnish the original material. The interested party who has difficulty furnishing the original may furnish the reproduction certified to be consistent with the original material or other evidence such as photographs or video-recordings of said material evidence. Where the original is of relatively many varieties, a part thereof shall be furnished.
Rule 78 Where an interested party furnishes the Trademark Review and Adjudication Board with computer data or audiovisual reference material, such as sound-recordings or video-recordings, the following requirements shall be complied with:
(1) the original carrier of the relevant reference material be furnished; where it is indeed difficult to furnish the original carrier, the reproduction thereof may be furnished;
(2) the way, time, reproducer and facts to be proved of the reproduction be indicated; and
(3) the sound-recording reference material be attached with the transcripts thereof.
Rule 79 An interested party furnishes the Trademark Review and Adjudication Board with a witness's oral evidence , the following requirements shall be complied with:
(1) the name, age, gender, residence, employer or profession and other information of the witness be indicated;
(2) the witness signs the oral evidence; where he cannot sign it, he put his seal on it or give proof in some other way;
(3) the date on which it is produced be indicated; and
(4) doucments showing the identification of the witness, such as a copy of identification card shall be attached.
Rule 80 Where an interested party furnishes the Trademark Review and Adjudication Board with an appraisal conclusion, he shall indicate the entruster, subject matters of appraisal entrusted, relevant material submitted to the appraisal department, basis of appraisal and statements of the qualification of the appraisal department and appraisers and the appraisal conclusion shall be signed by the appraisers and sealed by the appraisal department. For an appraisal conclusion obtained through analysis, the process of analysis shall be explained.
Rule 81 Where evidence an interested party furnishes to the Trademark Review and Adjudication Board is formed outside the territory of the People's Republic of China, the evidence shall be notarised by a notary office of the country and legalised by the embassy or consulate of the People's Republic of China in that country, or undergo the certification procedure provided for in the relevant treaty concluded between the People's Republic of China and the country.
Where evidence an interested party furnishes to the Trademark Review and Adjudication Board is formed in Hong Kong, Macao and Taiwan, he shall go through the relevant certification procedure.
Rule 82 Where an interested party furnishes to the Trademark Review and Adjudication Board instruments or explanatory material in a foreign language, he shall attach the Chinese translation thereof. Where an interested party who has furnished evidence in a foreign language fails to submit the Chinese translation thereof, the evidence in the foreign language shall be deemed not to have been submitted.
Where the other party has objection to the specific content of the translation, he shall submit the Chinese translation of the part to which the objection is raised. If necessary, an entity accepted by both parties may be entrusted with the translation of the text, in whole or in part, used or objected to.
Where both parties fail to reach an agreement on the translation entrustment, the Trademark Review and Adjudication Board may entrust a professional translation entity with the translation of the text, in whole or in part, used or objected to. Each party shall bear 50 percent of the fees necessary for the entrusted translation. A party's refusal to pay the translation fee shall be deemed its acceptance of the translation submitted by the other party.
Rule 83 In the following circumstances, the Trademark Review and Adjudication Board may investigate and collect evidence:
(1) facts involved that are likely to prejudice the interests of the country and public; and
(2) matters of procedure that are irrelevant to substantive disputes, such as termination of the review and adjudication or withdrawal;
Rule 84 A single piece of evidence may be verified and confirmed as to the presence and strength of evidential force in relation to the following aspects:
(1) whether the evidence is the original text, original material, copy or reproduction; whether it is consistent with the original;
(2) whether the evidence is relevant to the facts of a case;
(3) whether the evidence conforms to the law in terms of form or source;
(4) whether the evidence is true in content; and
(5) whether the witness or the person furnishing the evidence has interest in an interested party.
Rule 85 The review and adjudication staff members shall comprehensively examine and evaluate all the evidence as to the degree of the relevance of all the evidence to the facts of a case and the relationship of the evidence.
Rule 86 Evidence obtained in ways prejudicing the lawful rights and interests of another person or contrary to provision on prohibition of the law shall not serve as the basis for ascertaining the facts in a case.
Rule 87 The following evidence shall not alone serve as the basis for ascertaining facts in a case:
(1) Oral evidence from a minor which does not match his age or intelligence;
(2) Oral evidence from a witness who is a relative, affiliate or otherwise closely related to an interested party in his favour or oral evidence not in his favour from a witness who is adversely-related thereto;
(3) Oral evidence from a witness who should attend the public review and adjudication but fails to without justification;
(4) Audiovisual reference material difficult to be detected as to whether it is modified or not;
(5) Copy or reproduction impossible to be verified with the original;
(6) Proofs which one party or another person has modified and which the other party does not accept; and
(7) Any other proofs that cannot serve as the basis for ascertaining the facts in a case.
Rule 88 A witness presenting evidence shall objectively state the truth of his personal experience, and shall not do so in conjectural, inferential or commentary language.
A person who is not able to correctly express his will shall not act as a witness.
Rule 89 The following evidence which one party furnishes and to which the other party raises his objection without evidence to the contrary sufficient enough to deny the truth thereof shall be established by the Trademark Review and Adjudication Board as having its evidential force:
(1) The original documentary evidence or the Xerox copies, photographs, copies or extracts thereof which are verified to be consistent with the original documentary evidence;
(2) The original material evidence or the copies, photographs or video-recording materials thereof which are verified to be consistent with the original material evidence;
(3) The audiovisual reference material which is supported by other evidence and obtained by legal means and free of any doubt or the reproduction thereof verified without any inconsistency found.
Rule 90 Where the other party does not have evidence and reasons sufficient enough to rebut an appraisal conclusion which an interested party has entrusted an appraisal department with making, the evidential force of the appraisal conclusion may be established.
Rule 91 In respect of the evidence one party has furnished, the other party accepts or the evidence to the contrary furnished thereby is not sufficient enough to rebut it, the Trademark Review and Adjudication Board may determine its evidential force.
Where in respect of the evidence one party has furnished, the other party has objection thereto and presents evidence to rebut it, and the other party accepts the rebutting evidence, the evidential force of the rebutting evidence may be determined.
Rule 92 Where both parties furnish evidence to the contrary in respect of the same fact, neither has sufficient ground for the denial of the evidence of the other party, the Trademark Review and Adjudication Board shall evaluate, considering the circumstances of a case, whether or not the evidence furnished by one party is obviously more valid in evidential force than that by the other party, and confirm the evidence carrying more valid evidential force.
Where it is impossible to evaluate the evidential force of the evidence, and, as a result, it is difficult to ascertain the facts in dispute, the Trademark Review and Adjudication Board shall make determination according to the doctrine for distribution of burden of proof.
Rule 93 The Trademark Review and Adjudication Board shall confirm the facts and accepted evidence acknowledged adverse to an interested party in his Application, Reply, Written Statement, and the statements made by the agent he has entrusted in the course of review and adjudication, except that the party goes back on his words and has evidence to the contrary which is sufficient enough to upset the evidence.
Rule 94 Where an interested party has made his own statement of, but cannot furnish other relevant evidence to back up, his claim, the claim shall not be supported, except that the other party otherwise accepts the claim.
Rule 95 The Trademark Review and Adjudication Board may determine the evidential force of several pieces of evidence as to the same fact according to the following principles:
(1) Documents and instruments prepared by a State agency and any other competent department according to the functions and authority thereof prevail over other documentary evidence;
(2) Appraisal conclusions, materials kept on file and notarised or registered documentary evidence prevail over other documentary evidence, audiovisual reference evidence and oral evidence from a witness;
(3) Original documents or materials prevail over copies or reproductions;
(4) Appraisal conclusions made by statutory appraisal departments prevail over those by other appraisal departments;
(5) Original evidence prevails over to derivative evidence;
(6) Other oral evidence of witnesses prevails to oral evidence from a witness who is a relative or otherwise closely related to an interested party in his favour;
(7) Oral evidence from a participant of the public review and adjudication prevails over that from a non-participant; and
(8) Several pieces of evidence variant in category and consistent in content prevail over a single isolated piece of evidence.
Chapter VI Time Limit and Service
Rule 96 The time limit includes the statutory time limit and that fixed by the Trademark Review and Adjudication Board.
The time limit is counted in days, months and years. The beginning day of a time limit is not counted.
Where the last day on which a time limit expires is a public holiday, the first workday following the public holiday is the date on which the time limit expires.
Rule 97 Where any document or material is sent to the Trademark Review and Adjudication Board, the date of receipt shall be the date of delivery where it is delivered personally, or the date of posting indicated by the postmark if it is sent by post; where the date of posting indicated by the postmark is illegible, or there is no postmark, the date of receipt shall be the date on which the Trademark Review and Adjudication Board actually receives the document or material, except that the interested party is able to present evidence as to the actual date of posting indicated by the postmark.
Rule 98 Any document of the Trademark Review and Adjudication Board may be served by post, by personal delivery or by other means. Where an interested party entrusts a trademark agency, delivery of the document to the trademark agency shall be deemed delivery thereof to the interested party.
Where any document is sent to an interested party by the Trademark Review and Adjudication Board, the date of receipt shall be the date of receipt indicated by the postmark on which the interested party receives it if it is sent by post; where the date of posting indicated by the postmark is illegible, or where there is no postmark, or it is not returned to the addressor by the Post Office the document shall be deemed to have been delivered to the interested party on the fifteenth day from the date of posting the document; the date of receipt shall be the date of delivery if it is delivered personally. Where any document cannot be sent by post or by personal delivery, the document may be served by making an announcement. At the expiration of the thirtieth day from the date of the announcement, the document shall be deemed to have been served.
Chapter VII Supplementary Provisions
Rule 99 The circumstances having arisen before entry into force of the Decision on the Amendment of the Trademark Law on 1 December 2001 that are listed in Articles 4, 5, 8, 9, paragraph one, 10, paragraph one (2), (3) and (4), 10, paragraph two, 11, 12, 13, 15, 16, 24, 25 and 31 of the revised Trademark Law and that the Trademark Review and Adjudication Board reviewed and adjudicated after entry into force of the Decision on the Amendment of the Trademark Law shall be reviewed and adjudicated pursuant to the relevant provisions of the revised Trademark Law. In respect of other circumstances, the Trademark Review and Adjudication Board shall apply the relevant provisions of the former Trademark Law to the review and adjudication thereof.
Rule 100 Where an interested party applies to the Trademark Review and Adjudication Board for review and adjudication in respect of a dispute over a trademark that had been registered for a year when the Decision on the Amendment of the Trademark Law entered into force, the time limit for filing the application provided for in Article 27, paragraph two, of the former Trademark Law shall apply in handling the application to the Trademark Review and Adjudication Board for review and adjudication. Where an interested party applies to the Trademark Review and Adjudication Board for review and adjudication in respect of a dispute over a trademark that had been registered for less than a year when the Decision on the Amendment of the Trademark Law entered into force, the time limit for filing the application provided for in Article 41, paragraph three, of the revised Trademark Law shall apply in handling the application to the Trademark Review and Adjudication Board for review and adjudication
Where an relevant entity or person files on application for review and adjudication according to the provisions of Article 27 of the former Trademark Law and Rule 25 of Implementing Regulations thereof before entry into force of the Decision on the Amendment of the Trademark Law, and the application falls into the provisions of Articles 13, 15, 16 or 31 of the revised Trademark Law, the provision for the time limit for filing application for review and adjudication of Article 41, paragraph two, of the revised Trademark Law does not apply.
Rule 101 Where cases had been accepted before entry into force of the Decision on the Amendment of the Trademark Law, but fall outside the scope of review and adjudication by the Trademark Review and Adjudication Board provided for in Article 28 of the Implementing Regulations and the review and adjudication of which have not been closed, the Trademark Review and Adjudication Board shall return them, notify the applicants in writing and explain the reason.
Rule 102 Where cases of re-review and re-adjudication that have been accepted according to the provisions of Rules 34 and 35 of the Rules for Trademark Review and Adjudication promulgated by the State Administration for Industry and Commerce on 2 November 1995 before entry into force of the Decision on the Amendment of the Trademark Law fall into the scope of review and adjudication by the Trademark Review and Adjudication Board as provided for in Article 28 of the Implementing Regulations, the Trademark Review and Adjudication Board shall conduct review and adjudication thereof again and make decision or adjudication thereon pursuant to the revised Trademark Law and the Implementing Regulations thereof, except that it is otherwise provided for in Rules 99 and 100 of these Rules for the application of the relevant provisions of the former Trademark Law.
Rule 103 The documents or forms for handling review and adjudication matters shall be formulated and published by the State Administration for Industry and Commerce.
Rule 104 The Trademark Review and Adjudication Board shall establish an experts consultation group for consultation or comments on relevant points at issue in the trademark review and adjudication.
The experts consultation group shall be composed of legal experts, and the Trademark Review and Adjudication Board shall appoint experts to make the experts consultation group.
Rule 105 Before these Rules enter into force, the Trademark Review and Adjudication Board shall hear cases of trademark review and adjudication according to the procedure under the Rules for Trademark Review and Adjudication promulgated by the State Administration for Industry and Commerce on 2 November 1995. However, where the Rules run into conflict with the Decision on the Amendments of the Trademark Law, the Decision on the Amendment of the Trademark Law shall govern. Where the Rules run into conflict with the Implementing Regulations after the Implementing Regulations enter into force, the Implementing Regulations shall govern. Where the State Administration for Industry and Commerce issues notification to provide otherwise in connection with the Rules, the provisions of the relevant notification shall be complied with.
Rule 106 The State Administration for Industry and Commerce shall be respo

nsible for the interpretation of these Rules.
Rule 107 These Rules shall enter into force on 17 October 2002, and the Rules for Trademark Review and Adjudication promulgated by the State Administration for Industry and Commerce on 2 November 1995 shall be simultaneously abrogated.

  (Adopted at the 24th Session of the Standing Committee of the Fifth National People's Congress on 23 August 1982, revised for the first time according to the Decision on the Amendment of the Trademark Law of the People's Republic of China adopted at the 30th Session of the Standing Committee of the Seventh National People's Congress, on 22 February 1993, and revised for the second time according to the Decision on the Amendment of the Trademark Law of the People's Republic of China adopted at the 24th Session of the Standing Committee of the Ninth National People's Congress on 27 October 2001.)

Chapter l General Provisions

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

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

Article 3 Registered trademarks mean trademarks that have been approved and registered by the Trademark Office, including trademarks, service marks, collective marks and certification marks; the trademark registrants shall enjoy the exclusive right to use the trademarks, and be protected by law. 
    Said collective marks mean sings which are registered in the name of bodies, associations or other organizations to be used by the members thereof in their commercial activities to indicate their membership of the organizations. 
    Said certification marks mean signs which are controlled by organizations capable of supervising some goods or services and used by entities or individual persons outside the organization for their goods or services to certify the origin, material, mode of manufacture, quality or other characteristics of the goods or services. 
    Regulations for the particular matters of registration and administration of collective and certification marks shall be established by the administrative authority for industry and commerce under the State Council.

Article 4 Any natural person, legal entity or other organization intending to acquire the exclusive right to use a trademark for the goods produced, manufactured, processed, selected or marketed by it or him, shall file an application for the registration of the trademark with the Trademark Office. Any natural person, legal entity or other organization intending to acquire the exclusive right to use a service mark for the service provided by it or him, shall file an application for the registration of the service mark with the Trademark Office. 
    The provisions set forth in this Law concerning trademarks shall apply to service marks.

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

Article 6 As for any of such goods, as prescribed by the State, that must bear a registered trademark, a trademark registration must be applied for. Where no trademark registration has been granted, such goods cannot be marketed.

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

Article 8 In respect of any visual sign capable of distinguishing the goods or service of one natural person, legal entity or any other organization from that of others, including any word, design, letters of an alphabet, numerals, three-dimensional symbol, combinations of colours, and their combination, an application may be filed for registration.

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

Article 10 The following signs shall not be used as trademarks: 
  (1) those identical with or similar to the State name, national flag, national emblem, military flag, or decorations, of the People's Republic of China, with names of the places where the Central and State organs are located, or with the names and designs of landmark buildings; 
  (2) those identical with or similar to the State names, national flags, national emblems or military flags of foreign countries, except that the foreign state government agrees otherwise on the use; 
  (3) those identical with or similar to the names, flags or emblems or names, of international intergovernmental organizations, except that the organizations agree otherwise on the use or that it is not easy for the use to mislead the public; 
  (4) those identical with or similar to official signs and hallmarks, showing official control or warranty by them, except that the use thereof is otherwise authorized; 
  (5) those identical with or simi1ar to the symbols, or names, of the Red Cross or the Red Crescent; 
  (6) those having the nature of discrimination against any nationality; 
  (7) those having the nature of exaggeration and fraud in advertising goods; and 
  (8) those detrimental to socialist morals or customs, or having other unhealthy influences. 
    The geographical names as the administrative divisions at or above the county level and the foreign geographical names well known to the public shall not be used as trademarks, but such geographical terms as have otherwise meanings or are a part of collective marks/or a certification marks shall be exclusive. Where a trademark using any of the above-mentioned geographical names has been approved and registered, it shall continue to be valid.

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

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

Article 13 Where a trademark in respect of which the application for registration is filed for use for identical or similar goods is a reproduction, imitation or translation of another person's trademark not registered in China and likely to cause confusion, it shall be rejected for registration and prohibited from use. 
    Where a trademark in respect of which the application for registration is filed fdr use for non-identical or dissimilar goods is a reproduction, imitation or translation of the well-known mark of another person that has been registered in China, misleads the pub1ic and is likely to create prejudice to the interests of the well-known mark registrant, it shall be rejected for registration and prohibited from use.

Article 14 Account shall be taken of the fol1owing factors in establishment of a well-known mark: 
  (l) reputation of the mark to the relevant public; 
  (2) time for continued use of the mark; 
  (3) consecutive time, extent and geographical area of advertisement of the mark; 
  (4) records of protection of the mark as a well-known mark; and 
  (5) any other factors relevant to the reputation of the mark.

Article 15 Where any agent or representative registers, in its or his own name, the trademark of a person for whom it or he acts as the agent or representative without authorization therefrom, and the latter raises opposition, the trademark shall be rejected for registration and prohibited from use.

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

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

Article 18 Any foreign person or foreign enterprise intending to apply for the registration of a trademark or for any other matters conceming a trademark in China sha1l appoint any of such organizations as designated by the State to act as its or his agent.

Chapter II AppIication for Trademark Registration

Article 19 An applicant for the registration of a trademark shall, in a form, indicate, in accordance with the prescribed classification of goods, the class of the goods and the designation of the goods in respect of which the trademark is to be used.

Article 20 Where any applicant for registration of a trademark intends to use the same trademark for goods in different classes, an application for registration shall be filed in respect of each class of the prescribed classification of goods.

Article 21 Where a registered trademark is to be used in respect of other goods of the same class, a new application for registration shall be filed.

Article 22 Where the sign of a registered trademark is to be altered, a new registration shall be applied for.

Article 23 Where, after the registration of a trademark, the name, address or other registered matters concerning the registrant change, an application regarding the change shall be filed.

Article 24 Any aPp1icant for the registration of a trademark who files an application for registration of the same trademark for identica1 goods in China within six months from the date of filing the first application for the trademark registration overseas may enjoy the right of priority in accordance with any agreement concluded between the People's Republic of China and the country to which the applicant belongs, or according to the international treaty to which both countries are parties, or on the basis of the principle whereby each acknowledges the right of priority of the other.
    Anyone claiming the right of priority according to the preceding paragraph shall make a statement in writing when it or he files the application for the trademark registration, and submit, within three months, a copy of the application documents it or he first filed for the registration of the trademark; where the applicant fails to make the claim in writing or submit the copy of the application documents within the time limit, the claim shall be deemed not to have been made for the right of priority.

Article 25 Where a trademark is first used for goods in an international exhibition on sponsored or recognized by me Chinese Government, the applicant for the registration of the trademark may enjoy the right of priority within six months from the date of exhibition of the goods.
    Anyone claiming the right of priority according to the preceding paragraph shall make a claim in writing when it or he files the application for the registration of the trademark, and submit, within three months, documents showing the title of the exhibition in which its or his goods was displayed, proof that the trademark was used for the goods exhibited, and the date of exhibition; where the claim is not made in writing, or the proof documents not submitted within the time limit, the claim shall be deemed not to have been made for the right of priority.

Article 26 The matters reported and materials submitted in the application for trademark registration shall be true, accurate and complete.

Chapter lII Examination for and ApprovaI of Trademark Registration

Article 27 Where a trademark the registration of which has been applied for is in conformity with the relevant provisions of this Law, the Trademark Office shall, after examination, preliminarily approve the trademark and publish it.

Article 28 Where a trademark the registration of which has been applied for is not in conformity with the relevant provisions of this Law, or it is identical with or similar to the trademark of another person that has, in respect of the same or similar goods, been registered or, after examination, preliminarily approved, the Trademark Office shall refuse the application and shall not publish the said trademark.

Article 29 Where two or more applicants apply for the registration of identical or similar trademarks for the same or similar goods, the preliminary aPproval, after examination, and the publication shall be made for the trademark which was first filed. Where applications are filed on the same day, the preliminary approval, after examination, and the publication shall be made for the trademark which was the earliest used, and the applications of the others shall be refused and their trademarks shall not be published.

Article 30 Any person may, within three months from the date of the publication, file an opposition against the trademark that has, after examination, been preliminarily approved. If no opposition has been filed after the expiration of the time limit from the publication, the registration shall be approved, a certificate of trademark registration shall be issued and the trademark shall be published.

Article 31 An application for the registration of a trademark shall not create any prejudice to the prior right of another person, nor unfair means be used to pre-emptively register the trademark of some reputation another person has used.

Article 32 Where the application for registration of a trademark is refused and no publication of the trademark is made, the Trademark Office shall notify the applicant of the same in writing. Where the applicant is dissatisfied, he may, within fifteen days from receipt of the notice, file an application with the Trademark Review and Adjudication Board for a review. The Trademark Review and Adjudication Board shall make a decision and notify 'the applicant in writing. 
    Any interested party who is not satisfied with the decision made by the Trademark Review and Adjudication Board may, within thirty days from receipt of the notice, institute legal proceedings in the People's Court.

Article 33 Where an opposition is filed against the trademark that has, after examination, been preliminarily approved and published, the Trademark Office shall hear both the opponent and applicant state facts and grounds, and shall, after investigation and verification, make a decision. Where any party is dissatisfied, it or he may within fifteen days from receipt of the notification, apply for a reexamination, and the Trademark Review and Adjudication Board shall make a decision and notify both the opponent and applicant in writing.
    Any interested party who is not satisfied with the decision made by the Trademark Review and Adjudication Board within thirty days from the date of receipt of the notice, may institute legal proceedings in the People's Court. The People's Court shall notify the other party to the trademark reexamination proceeding to be a third party to the litigation.

Article 34 Where the interested party does not, within the statutory time limit, apply for the reexamination of the adjudication by the Trademark Office or does not institute legal proceedings in respect of the adjudication by the Trademark Review and Adjudication Board, the adjudication takes effect.
    Where the opposition cannot be established upon ad judication, the registration shall be approved, a certificate of trademark registration shall be issued and the trademark shall be published; where the opposition is established upon adjudication, the registration shall not be approved. 
    Where the opposition cannot be established upon ad judication, but the registration is approved, the time of the exclusive right the trademark registration applicant has obtained to use the trademark is counted from the date on which the three months expires from the publication of the preliminary examination.

Article 35 Any application for trademark registration and trademark reexamination shall be examined in due course.

Article 36 Where any trademark registration applicant or registrant finds any obvious errors in the trademark registration documents or application documents, it or he may apply for correction thereof The Trademark Office shall ex officio make the correction according to law and notify the interested party of the correction. 
    The error correction mentioned in the preceding paragraph shall not relate to the substance of the trademark registration documents or application documents.

Chapter IV Renewal, Assignment and Licensing of Registered Trademarks

Article 37 The period of validity of a registered trademark shall be ten years, counted from the date of approval of the registration.

Article 38 Where the registrant intends to continue to use the registered trademark beyond the expiration of the period of validity, an application for renewal of the registration shall be made within six months before the said expiration. Where no application therefore has been filed within the said period, a grace period of six months may be allowed. If no application has been filed at the expiration the grace period, the registered trademark shall be cancelled. 
    The period of validity of each renewal of registration shaIl be ten years. 
    Any renewa1 of registration shall be published after it as been approved.

Article 39 Where a registered trademark is assigned, the assignor and assignee shall conclude a contract for the assignment, and jointly file an application with the trademark Office. The assignee shall guarantee the quality of the goods in respect of which the registered trademark is used. 
    The assignment of a registered trademark shall be published after it has been approved, and the assignee enjoys the exclusive right to use the trademark from the date of publication.

Article 40 Any trademark registrant may, by signing a trademark license contract, authorize other persons to use his registered trademark. The licensor shall supervise the quality of the goods in respect of which the licensee uses his registered trademark, and the licensee shall guarantee the quality of the goods in respect of which the registered Trademark is used.
    Where any party is authorized to use a registered trademark of another person, the name of the licensee and the origin of the goods must be indicated on the goods that bear the registered trademark. 
    The trademark license contract shall be submitted to the Trademark Office for record.

Chapter V Adjudication of Disputes Concerning Registered Trademarks

Article 41 Where a registered trademark stands in violation of the provisions of Articles 10, 11 and 12 of this Law, or the registration of a trademark was acquired by fraud or any other unfair means, the Trademark Office shall cancel the registered trademark in question; and any other organization or individual may request the Trademark Review and Ad judication Board to make an adjudication to cancel such a registered trademark. 
    Where a registered trademark stands in violation of the provisions of Articles l3, l5, l6 and 3l of this Law, any other trademark owner concerned or interested party may, within five years from the date of the registration of the trademark, file a request with the Trademark Review and Adjudication Board for adjudication to cancel the registered trademark. Where a well-known mark is registered in bad faith, the genuine owner thereof shall not be restricted by the five-year limitation. 
    In addition to those cases as provided for in the preceding two paragraphs, any person disputing a registered trademark may, within five years from the date of approval of the trademark registration, apply to the Trademark Review and Adjudication Board for adjudication. 
    The Trademark Review and Adjudication Board shall, after receipt of the application for adjudication, notify the interested parties and request them to respond with arguments within a specified period.

Article 42 Where a trademark, before its being approved for registration, has been the object of opposition and decision, no application for adjudication may be filed based on the same facts and grounds.

Article 43 After the Trademark Review and Adjudication Board has made an adjudication either to maintain or to cancel a registered trademark, it shall notify the interested parties of the same in writing. 
  Any interested party who is dissatisfied with the adjudication made by the Trademark Review and Adjudication Board may, within thirty days from the date of receipt of the notice, institute legal proceedings in the People's Court. The People's Court shall notify the other party of the trademark adjudication proceeding to be a third party to the legal proceedings.

Chapter Vl Administration of the Use of Trademarks

Article 44 Where any person who uses a registered trademark has committed any of the following, the Trademark Office shall order him to rectify the situation within a specified period or even cancel the registered trademark: 
  (1) where a registered trademark is altered unilaterally (that is, without the required registration); 
  (2) where the name, address or other registered matters concerning the registrant of a registered trademark are changed unilaterally (that is, without the required application ); 
  (3) where the registered trademark is assigned unilaterally (that is, without the required approval); or 
  (4) where the use of the registered trademark has ceased for three consecutive years.

Article 45 Where a registered trademark is used in respect of the goods that have been roughly or poorly manufactured, or whose superior quality has been replaced by inferior quality, so that consumers are deceived, the administrative authorities for industry and commerce at different levels shall, according to the circumstances, order rectification of the situation within a specified period, and may, in addition, circulate a notice of criticism or impose a fine, and the Trademark Office may even cancel the registered trademark.

Article 46 Where a registered trademark has been cancelled or has not been renewed at the expiration, the Trademark Office shall, during one year from the date of the cancellation or removal thereof, approve no application for the registration of a trademark that is identical with or similar to the said trademark.

Article 47 Where any person violates the provisions of Article 6 of this Law, the local administrative authority for industry and commerce shall order him to file an application for the registration within a specified period, and may, in addition, impose a fine.

Article 48 Where any person who uses an unregistered trademark has committed any of the following, the local administrative authority for industry and commerce shall stop the use of the trademark, order him to rectify the situation within a specified period, and may, in addition, circulate a notice of criticism or impose a fine: 
  (1) where the trademark is falsely represented as registered; 
  (2) where any provision of Article 10 of this Law is violated; or 
  (3) where the manufacture is of rough or poor quality, or where superior quality is replaced by inferior quality, so that consumers are deceived.

Article 49 Any party dissatisfied with the decision of the Trademark Office to cancel a registered trademark may, within fifteen days from receipt of the corresponding notice, apply for a review. The Trademark Review and Adjudication Board shall make a decision and notify the applicant in writing. 
    Any interested party dissatisfied with the decision by the Trademark Review and Adjudication Board may, within thirty days from the date of receipt of the notice, institute legal proceedings in the People's Court.

Article 50 Any party dissatisfied with the decision of the administrative authority for industry and commerce to impose a fine under the provisions of Article 45, Article 47 or Article 48 may, within fifteen days from receipt of the corresponding notice, institute legal proceedings with the People's Court. If there have been instituted no legal proceedings or made no performance of the decision at the expiration of the said period, the administrative authority for industry and commerce may request the People's Court for compulsory execution thereof.

Chapter VII Protection of the Exclusive Rights to Use Registered Trademarks

Article 51 The exclusive right to use a registered trademark is limited to the trademark which has been approved for registration and to the goods in respect of which the use of the trademark has been approved.

Article 52 Any of the following acts shall be an infringement of the exclusive right to use a registered trademark: 
  (1) to use a trademark that is identical with or similar to a registered trademark in respect of the identical or similar goods without the authorization from the trademark registrant; 
  (2) to sell goods that he knows bear a counterfeited registered trademark; 
  (3) to counterfeit, or to make, without authorization, representations of a registered trademark of another person, or to sell such representations of a registered trademark as were counterfeited, or made without authorization; 
  (4) to replace, without the consent of the trademark registrant, its or his registered trademark and market again the goods bearing the replaced trademark; or 
  (5) to cause, in other respects, prejudice to the exclusive right of another person to use a registered trademark.

Article 53 Where any party has committed any of such acts to infringe the exclusive right to use a registered trademark as provided for in Article 52 of this Law and has caused a dispute, the interested parties shall resolve the dispute through consultation; where they are reluctant to resolve the matter through consultation or the consultation fails, the trademark registrant or interested party may institute legal proceedings in the People's Court or request the administrative authority for industry and commerce for actions. Where it is established that the infringing act is constituted in its handling the matter, the administrative authority for industry and commerce handling the matter shall order the infringer to immediately stop the infringing act, confiscate and destroy the infringing goods and tools specially used for the manufacture of the infringing goods and for counterfeiting the representations of the registered trademark, and impose a fine. Where any interested party is dissatisfied with decision on handling the matter, it or he may, within fifteen days from the date of receipt of the notice, institute legal proceedings in the People's Court according to the Administrative Procedure Law of the People's Republic of China. If there have been instituted no legal proceedings or made on performance of the decision at the expiration of the said period, the administrative authority for industry and commerce shall request the People's Court for compulsory execution thereof. The administrative authority for industry and commerce handling the matter may, upon the request of the interested party, medicate on the amount of compensation for the infringement of the exclusive right to use the trademark; where the medication fails, the interested party may institute legal proceedings in the People's Court according to the Civil Procedure Law of the People's Republic of China.

Article 54 The administrative authority for industry and commerce has the power to investigate and handle any act of infringement of the exclusive right to use a registered trademark according to law; where the case is so serious as to constitute a crime, it shall be transferred to the judicial authority for handling.

Article 55 When investigating and handling an act suspected of infringement of a registered trademark, the administrative authority for industry and commerce at or above the county level may, according to the obtained evidence of the suspected violation of law or informed offence, exercise the following functions and authorities: 
  (1 ) to inquire of the interested parties involved, and to investigate the relevant events of the infringement of the exclusive right to use the trademark; 
  (2) to read and make copy of the contract, receipts, account books and other relevant materials of the interested parties relating to the infringement; 
  (3) to inspect the site where the interested party committed the alleged infringement of the exclusive right to use the trademark; and 
  (4) to inspect any articles relevant to the infringement; any articles that prove to have been used for the infringement of another person's exclusive right to use the trademark may be sealed up or seized.
    When the administrative authority for industry and commerce exercises the preceding functions and authorities, the interested party shall cooperate and help, and shall not refuse to do so or stand in the way.

Article 56 The amount of damages shall be the profit that the infringer has earned because of the infringement in the period of the infringement or the injury that the infringee has suffered from the infringement in the period of the infringement, including the appropriate expenses of the infringee for stopping the infringement.
    Where it is difficult to determine the profit that the infringer has earned because of the infringement in the period of the infringement or the injury that the infringee has suffered from the infringement in the period of the infringement, the People's Court shall impose an amount of damages of no more than RMB 500, 000 yuan according to the circumstances of the infringement.
    Anyone who sells a goods that it or he does not know has infringed the exclusive right to use a registered trademark, and is able to prove that it or he has obtained the goods legitimately and indicates the supplier thereof shall not bear the liability for damages.

Article 57 Where a trademark registrant or interested party who has evidence to show that another person is committing or will commit an infringement of the right to use its or his registered trademark, and that failure to promptly stop the infringement will cause irreparable damages to its or his legitimate rights and interests, it or he may file an application with the People's Court to order cessation of the relevant act and to take measures for property preservation before instituting legal proceedings in the People's Court.
    The People's Court handling the application under the preceding paragraph shall apply the provisions of Articles 93 to 96 and 99 of the Civil Procedure Law of the People's Republic of China.

Article 58 In order to stop an infringing act, any trademark registrant or interested party may file an application with the People's Court for preservation of the evidence before instituting legal proceedings in the People's Court where the evidence will possibly be destroyed or lost or difficult to be obtained again in the future. The People's Court must make adjudication within forty-eight hours after receipt of the application; where it is decided to take the preservative measures, the measures shall be executed immediately. The People's Court may order the applicant to place guaranty; where the applicant fails to place the guaranty, the application shall be rejected.
    Where the applicant institutes no legal proceedings within fifteen days after the People's Court takes the preservative measures, the People's Court shall release the measures taken for the preservation.

Article 59 Where any party uses, without the authorization from the trademark registrant, a trademark identical with a registered trademark, and the case is so serious as to constitute a crime, he shall be prosecuted, according to law, for his criminal liabilities in addition to his compensation for the damages suffered by the infringee.
    Where any party counterfeits, or makes, without authorization, representations of a registered trademark of another person, or sells such representations of a registered trademark as were counterfeited, or made without authorization, and the case is so serious as to constitute a crime, he shall be prosecuted, according to law, for his criminal liabilities in addition to his compensation for the damages suffered by the infringee.
    Where any party sells goods that he knows bear a counterfeited registered trademark, and the case is so serious as to constitute a crime, he shall be prosecuted, according to law, for his criminal liabilities in addition to his compensation for the damages suffered by the infringee.

Article 60 The State functionaries for the registration, administration and reexamination of trademarks must handle cases according to law, be incorruptible and disciplined, devoted to their duties and courteous and honest in their provision of service.
    The State functionaries of the Trademark Office and the Trademark Review and Adjudication Board and those working for the registration, administration and reexamination of trademarks shall not practice as trademark agent and engage in any activity to manufacture and market goods.

Article 61 The administrative authority for industry and commerce shall establish and amplify its internal supervision system to supervise and inspect the State functionaries for the registration, administration and reexamination of trademarks in their implementation of the laws and administrative regulations and in their observation of the discipline.

Article 62 Where any State functionary for the registration, administration and reexamination of trademarks neglects his duty, abuses his power, engages in malpractice for personal gain, handles the registration, administration and reexamination of trademarks in violation of law, accepts money or material wealth from any interested party or seeks illicit interest, which constitutes a crime, he or she shall be prosecuted for his or her criminal liabi1ity. If the case is not serious enough to constitute a crime, he or she shall be given disciplinary sanction according to law.

Chapter VIII Supplementary Provisions

Article 63 Any application for a trademark registration and for other matters concerning a trademark shall be subject to payment of the fees as prescribed. The schedule of fees shall be prescribed separately.

ArticIe 64 This Law shall enter into force on March l, l983. The "Regulations Governing Trademarks" promulgated by the State Council on April l0, l963 shall be abrogated on the same date, and any other provisions concerning trademarks contrary to this Law shall cease to be effective at the same time.

Trademarks registered before this Law enters into force shall continue to be valid.

 为了进一步增强立法的公开性和透明度，提高立法质量，国务院法制办公室决定，将《中华人民共和国商标法(修订草案征求意见稿)》全文公布，征求社会各界意见，以便进一步研究、修改后报请国务院常务会议审议。现将有关事项通知如下：