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Trademark Law of the People’s Republic of China (as revised on August 30, 2013)
Date:2015-07-09
Chapter V Announcement of Invalidation of Registered Trademark

Article 44  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 Adjudication Board to make an adjudication to cancel such a registered trademark.

The decision of trademark invalidation that made by Trademark Office shall be delivered to the interested party in writing. Where the interested party is unsatisfied with decision, an application for review can be submit to the Trademark Review and Adjudication Board within fifteen days since the notice for invalidation is received. The Trademark Review and Adjudication Board shall make the adjudication within nine months after receiving the application and deliver the notice to the interested party in writing. Where extension is needed, upon approval of the State Administration for Industry & Commerce, the time limit can be extended for three months. If the interested party 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, he may institute legal proceedings in the People's Court.

Where any other organization or individual request the Trademark Review and Adjudication Board to make an adjudication to invalidate a registered trademark, the Trademark Review and Adjudication Board shall notify the interested parties in writing and request them to respond with arguments within a specified period. The Board shall make the adjudication of maintaining the registered trademark or invalidating the registered trademark within nine months after receipt of the application, and notice to the interested parties in writing. Where extension is needed, upon approval of the State Administration for Industry & Commerce, the time limit can be extended for three months. Any interested parties refuse to obey the adjudication of The Board; a suit may be brought in the People's Court within thirty days after receipt of the notice. The People's Court shall notify the other party of the trademark adjudication proceeding to be a third party to the legal proceedings.

Article 45  Where a registered trademark stands in violation of the provisions of Articles 13, 15, 16, 31 and 32 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.

The Trademark Review and Adjudication Board shall notify the interested parties in writing and request them to respond with arguments within a specified period after receipt of the application for invalidating the registered trademark. The Trademark Review and Adjudication Board shall make the adjudication of maintaining the registered trademark or invalidating the registered trademark within twelve months after receipt of the application, and notify the interested parties in writing. Where extension is needed, upon approval of the State Administration for Industry & Commerce, the time limit can be extended for six months. Any interested parties refuse to obey the adjudication of The Board; a suit may be brought in a people's court within thirty days after receipt of the notice. The People's Court shall notify the other party of the trademark adjudication proceeding to be a third party to the legal proceedings.

Where the confirmation of the prior right in the examination that has to be justified by the result of another case that the People’s Court or Administrative Organ is handling, the Trademark Review and Adjudication Board may stop examination, and shall resume the examination after the reason of stop is eliminated.

Article 46  In legal expiration of time limit, where the interested parties do not request trademark review for trademark invalidation , or do not bring a suit for the decision of review or the adjudication of either maintaining or invalidating the trademark that made by Trademark Review and Adjudication Board, those decision or adjudication will effect.

Article 47  The registered trademark that adjudicated to be invalidated according to the provisions of Articles 44, and 45of this Law, will announced by Trademark Office, and its exclusive rights are regarded as non- existed after the announcement.

The decision or adjudication of canceling a registered trademark has no retroactive effects on the judgment, adjudication or conciliation of a trademark infringement case that already made or executed by the People's Court, and the trademark assignation or trademark license contract that has already made or executed according to the State Administration for Industry & Commerce’s decision on a trademark infringement case. Nevertheless, the losses of other person, which caused by the applicant’s malicious intention shall be compensated.

The previous stipulations of non-return compensation for trademark infringement, the fees for assignation and license contract obviously violate the principle of justice. The compensation or fees shall be fully or partial returned. 

Chapter VI Administration of the Use of Trademarks

Article 48  The administration of the use of trademarks hereby means to print the trademark on products, products packing or trading documents, or to use the trademark in advertising, exhibition, or other commercial activities for distinguishing the goods resources.

Article 49  Where any person who uses a registered trademark has unilaterally altered the registered trademark, the name, address or other registered matters, the Trademark Office shall order him to rectify the situation within a specified period or even cancel the registered trademark.

Where a registered trademark refers to the Generic Name of its approved goods or doesn’t used for three consecutive years without popper reasons, any person or entities may apply to the Trademark Office for canceling that registered trademark. The Trademark office shall make the decision within nine months after receiving the application. Where the period of handling needs to be extended due to special situations, with the approval of the State Administration for Industry & Commerce, six extra months may be extended.

Article 50  Where a registered trademark is canceled, announced to be invalid or not renewed, the Trademark Office will not approve the filed trademark that identical with or similar to that registered trademark to be registered within one year from the date of cancellation or announcement of invalidation.

Article 51 Where any person violates the provisions of Article 6 of this Law, the local administrative authority for industry and commerce shall order him to file an application for the registration within a specified period. Where the illegal business revenue is above fifty thousand, the user can be imposed a fine of below twenty percent of the illegal business revenue; where no illegal business revenue or the illegal business revenue is less than fifty thousand, the user can be imposed a fine of below ten thousand.

Article 52 where the trademark is falsely represented as registered or a registered trademark violates any provision of Article 10 of this Law, the local administrative authority for industry and commerce shall stop the use of the trademark, order him to rectify the situation within a specified period, and may, in addition, circulate a notice of criticism. Where the illegal business revenue is above fifty thousand, the user can be imposed a fine of below twenty percent of the illegal business revenue; where no illegal business revenue or the illegal business revenue is less than fifty thousand, the user can be imposed a fine of below ten thousand.

Article 53  Where any person violates the provisions of Paragraph 5 of Article 14 of this Law, the local administrative authority for industry and commerce shall order him to correct, and in addition, impose a fine of 100 thousand.

Article 54  Any parties dissatisfied with the decision of the Trademark Office to cancel or not to cancel a registered trademark may, within fifteen days from receipt of the corresponding notice, apply for a review. The Trademark Review and Adjudication Board shall make a decision within nine months after the receipt of the application, and notify the applicant in writing. Where the period of review needs to be extended due to special situations may extend for three extra months with the approval of the State Administration for Industry & Commerce. Any interested parties refuse to obey the adjudication of The Trademark Review and Adjudication Board, shall bring a suit in a people's court within thirty days after receipt of the notice. The People's Court shall notify the other party of the trademark adjudication proceeding to be a third party to the legal proceedings.

Article 55 In legal expiration, where the interested parties do not request trademark review for trademark cancellation, or do not bring a suit for the decision of review or the adjudication of either maintaining or cancellation the trademark that made by Trademark Review and Adjudication Board, those decision or adjudication effects.

The registered trademark that adjudicated to be canceled will announced by Trademark Office, and its exclusive rights are regarded as non- existed after the announcement.

Chapter VII Protection of the Exclusive Rights to Use Registered Trademarks

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

Article 57  Any of the following acts shall be an infringement of the exclusive right to use a registered trademark:

(1) to use a trademark that is identical with or similar to a registered trademark in respect of the identical goods without the authorization from the trademark registrant;

(2) to use a trademark that is similar to a registered trademark in respect of the identical or similar goods, or without the authorization from the trademark registrant;

(3) to sell goods that he knows bear a counterfeited registered trademark;

(4) to counterfeit, or to make, without authorization, representations of a registered trademark of another person, or to sell such representations of a registered trademark as were counterfeited, or made without authorization;

(5) to replace, without the consent of the trademark registrant, its or his registered trademark and market again the goods bearing the replaced trademark;

(6) to provide convenience on purpose for others’ s infringement behavior, or to help others making the acts of infringement. 

(7) to cause, in other respects, prejudice to the exclusive right of another person to use a registered trademark.

Article 58  Where to use the other’s registered trademark, unregistered well-known trademark as a part of corporation’s name, if misleads the public and causes unfair competition, shall be disposed according to the Anti-unfair competition law of the People's Republic of China.

Article 59  The owner of a registered trademark has no rights to forbid other person to use the generic names, devices, models of goods, or the expressions that describe the quality, material, function, application, weight, quantity, geographical name and other features of goods.

The owner of a registered trademark has no rights to forbid other person to use his shape design of forming the property of the goods, the necessary shape design for achieving technical effects, or the shape design of forming the substantial values of the goods in a Three-dimensional mark.  

Before applicant files a registration, where other person has used an influential trademark that identical with or similar to the applicant’s trademark, the applicant has no right to forbid the one to use his trademark original usable range, but to require adding certain signs for distinguishing.

Article 60  Where any party has committed any of such acts to infringe the exclusive right to use a registered trademark as provided for in Article 57 of this Law and has caused a dispute, the interested parties shall resolve the dispute through consultation; where they are reluctant to resolve the matter through consultation or the consultation fails, the trademark registrant or interested party may institute legal proceedings 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 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 the illegal profits are over 50,000RMB, the fine shall be the five times as the profits; where there are no illegal profits, or the illegal profits are below 50,000RMB, the fine shall be within 250,000RMB.
Where the infringing acts happened twice in five years, or the infringing acts with serious situations, the heavier punishment shall be gave. Anyone who sells the goods that it or he does not know that it or he 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 be ordered to stop the infringing selling by the industry and commerce authority.

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

Article 62 When investigating and handling an act suspected of infringement of a registered trademark, the administrative authority for industry and commerce at or above the county level may, according to the obtained evidence of the suspected violation of law or informed offence, exercise the following functions and authorities:

(1) to inquire of the interested parties involved, and to investigate the relevant events of the infringement of the exclusive right to use the trademark;

(2) to read and make copy of the contract, receipts, account books and other relevant materials of the interested parties relating to the infringement;

(3) to inspect the site where the interested party committed the alleged infringement of the exclusive right to use the trademark; and

(4) to inspect any articles relevant to the infringement; any articles that prove to have been used for the infringement of another person's exclusive right to use the trademark may be sealed up or seized.

When the administrative authority for industry and commerce exercises the preceding functions and authorities, the interested party shall cooperate and help, and shall not refuse to do so or stand in the way.

In the investigation of a trademark infringement case, where the ownership of the trademark is disputed, or the obligee institute legal proceedings in the People's Court, the administrative authority for industry and commerce can pause the investigation process of the case and shall resume the process after the above reason is removed.

Article 63 The amount of damages shall be determined by the infringee’ s actual loss. Where the actual loss is unable to determine, it shall be determined by the profit that the infringer has earned because of the infringement; Where the profit is unable to determine, it shall determined by the reasonable times of the fee of licensee uses of the trademark. For circumstances of malicious infringement, the amount of damages shall be determined as the one time (at least) or three times (top) of the amount that set above. The compensation shall include the appropriate expenses of the infringee for stopping the infringement.
The People's Court may order infringer to provide account books or files that related with the infringement for determining the amount of damages, in the condition that the infringee has tried his best to proof, while the relevant account books or files are held by the infringer. Where the infringer doesn't provide or provide fake account books or files, the People's Court may determine the amount of damages by referencing the infringee’ s claim and proofs.

Where it is difficult to determine the profit that the infringer has earned by the infringement in the period of the infringement, the injury that the infringee has suffered from the infringement in the period of the infringement or the fee of licensee uses, the People's Court shall impose an amount of damages of no more than 3,000, 000 RMB according to the circumstances of the infringement.

Article 64 Where the infringee require for compensation and the accused infringer makes a defense with the reason of non-use, the People's Court may require the infringee to provide proofs of commercial use for three consecutive years for the trademark. Where the infringee is unable to provide the proofs and unable to prove the losses that causes by infringement, the accused infringer thereof shall not bear the liability for damages.

Anyone who sells the goods that it or he does not know has infringed the exclusive right to use a registered trademark, and is able to prove that it or he has obtained the goods legitimately and indicates the supplier thereof shall not bear the liability for damages.

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

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

Article 67 Where any party uses, without the authorization from the trademark registrant, a trademark identical with a registered trademark, 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 68 The trademark agencies with one of the following conditions will be required to make corrections within a time limit, warned or fined between ten thousand yuan and one hundred yuan by the administrative authority for industry and commerce; the direct executive person and other responsible person will also be warned or fined between five thousand yuan and ten thousand yuan; and the case is so serious as to constitute a crime, he shall be prosecuted, according to law, for his criminal liabilities:

(1) to counterfeit or alter the legal document, seal and signature or to use the counterfeited or altered legal document, seal and signature in transacting trademark relevant matters;

(2) to use attract trademark agency business by slandering other trademark agencies, or to disorder the market order of trademark agency by improper means; or

(3) to violate Article 19 of this law.

The trademark agency that has the one of the above behaviors will be filed in credit file by the administrative authority for industry and commerce; as for serious circumstance, the Trademark Office and the Trademark Review and Adjudication Board may stop its trademark agency business, and make the announcement.

Article 69 The State functionaries for the registration, administration and reexamination of trademarks must handle cases according to law, are 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 70 The administrative authority for industry and commerce shall establish and amplify its internal supervision system to supervise and inspect the State functionaries for the registration, administration and reexamination of trademarks in their implementation of the laws and administrative regulations and in their observation of the discipline.

Article 71 Where any State functionary for the registration, administration and 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 72 Any application for a trademark registration and for other matters concerning a trademark shall be subject to payment of the fees as prescribed. The schedule of fees shall be prescribed separately.

Article 73 This Law shall enter into force on March 1, 1983. The Regulations Governing Trademarks promulgated by the State Council on April 10, 1963 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.