Outline of the Chinese Trademark System
Trademark Law
Conventions
Trademark Administration Agencies
Types of Marks
Who May Apply
First-to-File Rule
What Is Registerable
What Is Not Registerable
What Shall Not Be Used as a Trademark
Classification of Trademarks
Application for Registration of a Trademark
Filing Requirements for Registration of a Trademark
Procedures in the Trademark Office
Publication
Opposition
Application for Review (Appeal to the Trademark Review and Adjudication Board)
Duration and Renewal
Use of a Trademark
Assignment
License
Marking
Cancellation of a Registered Trademark
Effect of Cancellation of a Registered Trademark
Status of Unregistered Trademark
Well-known Marks
Exclusive Right for a Registered Trademark
Protection of the Exclusive Right through Customs
Protection of the Exclusive Right of a Registered Trademark
Administrative Authority for Industry and Commerce
The People's Court
Preliminary injunctions
Remedies
Criminal Liability
Trademark Law
Trademark Law of the People's Republic of China was adopted on August 23, 1982 and effective on March 1, 1983. First amendment was adopted on February 22, 1993 and effective on July 1, 1993. Second amendment was adopted on October 27, 2001 and effective December 1, 2001.
The new Implementing Regulations of the Trademark Law was adopted on August 3, 2002 and effective on September 15, 2002. Implementing Regulations effective March 10, 1983, revised effective January 3, 1988, and secondly revised effective July 28, 1993, was abrogated on the same date.
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Conventions
China became a member of Convention Establishing the World Intellectual Property Organization on June 4, 1980, the Paris Convention on March 19, 1985, Madrid Agreement on October 4, 1989, Nice Agreement on August 9, 1994, Protocol relating to the Madrid Agreement on December 1, 1995 and WTO on December 11, 2001.
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Trademark Administration Agencies
The Trademark Office of the State Administration for Industry and Commerce of China is responsible for the trademark administration throughout the country. It receives and examines trademark application and grants exclusive rights to use a registered trademark.
Trademark Review and Adjudication Board is set up under the State Administration for Industry and Commerce and is responsible for review the decisions of the Trademark Office, and adjudication of disputes concerning registered trademarks.
The administrative authorities for industry and commerce at different levels are responsible for the administration of the use of trademarks.
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Types of Marks
Registered trademarks include a trademark used on goods, service mark, collective mark and certification mark.
A trademark means a distinctive sign used on goods to distinguish the origin of the goods produced, manufactured, processed, selected or marketed.
A service mark means a distinctive sign used for services to distinguish the suppliers of the services.
A collective mark means a distinctive sign registered in the names of bodies, associations or other organizations for the members thereof to use in their commercial activities as indications of their membership of the organizations.
A certification mark means a distinctive sign controlled by organizations capable of supervising certain goods or services, and used by entities or individuals outside the organizations for their goods or services to certify the origin, material, mode of manufacture, quality or other characteristics of the goods or services.
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Who May Apply
Any natural person, legal person 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, may file an application for the registration of the trademark with the Trademark Office.
Any natural person, legal person or other organization intending to acquire the exclusive right to use a service mark for the service provided by it or him, may file an application for the registration of the service mark with the Trademark Office.
Any body, association or other organization intending to acquire the exclusive right for the members thereof to use a collective mark in their commercial activities as indications of their membership of the organizations, may file an application for the registration of a collective mark with the Trademark Office.
Any organization, capable of supervising certain goods or services, intending to acquire and control a certification mark for the use of entities or individuals 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, may file a certification mark with the Trademark Office.
Two or more natural persons, legal persons or other organizations may jointly apply to the Trademark Office for the registration of the same trademark, and jointly enjoy and exercise the exclusive right to use the trademark.
Any foreigner or foreign enterprise intending to apply for the registration of a trademark in China may 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 principle of reciprocity.
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First-to-file Rule
The Chinese Trademark Law generally adopts the firs-to-file rule. For two or more applications for registering the identical or similar trademark for the same or similar goods, the Trademark Office preliminarily approves and publishes the trademark registration of the applicant who files the application first.
If two or more applicants apply to register identical or similar marks for the same or similar goods on the same day, the proof of first use is weighed by the Trademark Office in approving registration. If both marks were not used, registration will be granted upon a settlement made by the parties, or through a lottery in case no agreement is reached within 30 days.
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What is Registerable
Any visible signs capable of distinguishing the goods of one natural person, legal person or other organization from that of others, including words, devices, letters, numbers, three-dimensional signs and combination of colors as well as combination thereof, is registerable.
A trademark that is so distinctive as to be distinguishable and does not conflict with any prior legitimate right acquired by another person, is registerable.
A trademark that is not 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, is registerable.
Where a registered trademark has been canceled or has not been renewed at the expiration, the Trademark Office will, 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 such trademark.
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What Is Not Registerable
The following signs are not registerable as trademarks:
(1) those consisting only of the generic names, devices or model numbers of the goods in respect of which the trademarks are used;
(2) those having direct reference to the quality, primary raw materials, function, use, weight, quantity and other characteristics of the goods in respect to which the trademarks are used; or
(3) those devoid of any distinctive character.
Signs mentioned above may be registered as trademarks if they have acquired distinctive character through use and are capable of being readily identified and distinguished.
A three-dimensional sign that consists exclusively of any shape resulted from the nature of the goods itself, required for obtaining a technical effect, or giving substantial value to the goods, is not registerable.
A trademark, used for identical or similar goods, that is a reproduction, an imitation, or a translation of another person's well-known mark not registered in China and likely to cause confusion, is not registerable.
A trademark, used for non-identical or dissimilar goods, that is a reproduction, an imitation, or a translation of a well-known trademark of another person that has been already registered in China, misleads the public and is likely to cause prejudice to the interests of the well-known mark registrant, is not registerable.
Where any agent or representative applies for registering, in its or his own name, a trademark of a person for whom it or he acts as the agent or representative, without authorization from the person, and the person raises an opposition, the trademark shall not be registered.
Where a trademark contains a geographical indication of a goods in respect of which the trademark is used, the goods does not originate in the region indicated, and it misleads the public, the trademark shall not be registered; however, any trademark that has been registered in good faith shall continue to be valid.
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What Shall Not Be Used as a Trademark
The use of the following signs as trademarks is prohibited:
(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; and those identical with the names of the particular places where the Central and State organs are located, or the names or 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 the foreign government has approved such use;
(3) those identical with or similar to the names, flags, or emblems, of international intergovernmental organizations, except that the organization has approved such use or the public is not likely to be misled by such use;
(4) those identical with or similar to the official signs or hallmarks indicating official control or warranty, except that such use is authorized;
(5) those identical with or similar 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 of 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, unless such geographical name has other meanings or is used as a component part of a collective mark or certification mark. Where a trademark using any of the above-mentioned geographical names has been approved and registered, it shall continue to be valid.
Where a trademark, used for identical or similar goods, is a reproduction, an imitation, or a translation of another person's well-known mark not registered in China and likely to cause confusion, its use is prohibited.
Where a trademark, used for non-identical or dissimilar goods, is a reproduction, an imitation, or a translation of a well-known trademark of another person that has been already registered in China, misleads the public and is likely to cause prejudice to the interests of the well-known mark registrant, its use is prohibited.
Where any agent or representative applies for registering, in its or his own name, a trademark of a person for whom it or he acts as the agent or representative, without authorization from the person, and the person raises an opposition, the use of the trademark is prohibited.
Where a trademark contains a geographical indication of a goods in respect of which the trademark is used, the goods does not originate in the region indicated, and it misleads the public, the use of the trademark is prohibited; however, any trademark that has been registered in good faith shall continue to be valid.
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Classification of Trademarks
The Trademark Office adopts International Classification of Goods according to Nice Agreement.
Trademarks for goods are divided into 34 classes (classes 1 to 34) and service marks are divided into eleven classes (classes 35 to 45).
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Application for Registration of a Trademark
An applicant for the registration of a trademark shall indicate the information about the applicant, the type and specification of the trademark, class of the goods and the designation of the goods in respect of which the trademark is to be used, and include the symbol of the trademark.
A separate application must be filed for each class of the goods.
Registration of trademarks for tobacco is compulsory; unless the mark is registered the relevant product may not be marketed, otherwise it is subject to confiscation, and its producer is liable to a fine.
For Chinese persons or Chinese enterprises, applications may be filed by the applicant itself or by a trademark agent. Any foreigner or foreign enterprise intending to apply for the registration of a trademark or for any other matters concerning a trademark in China shall entrust any of such organizations as designated by the State to act as his or its agent.
An applicant for registration of a trademark who, within six months from the date of application for registration of his trademark in a foreign country, applies for registration of the same trademark in China in respect of the same goods has a right of priority in accordance with any agreement concluded between China and the foreign country, or with the international treaty to which both countries are party, or on the principle of mutual recognition of the right of priority.
Where a trademark is first used for goods exhibited at an international exhibition sponsored or recognized by the Chinese government, an applicant for registration of the trademark may enjoy the right of priority within six months from the date of exhibition of the goods.
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Filing Requirements for Registration of a Rrademark
Name, address and nationality of the applicant(s).
Specification of goods/services including type of the trademark, class and designation of the goods or services; if it is a three-dimensional sign, it shall be indicated; if it is a combination of color, it shall be indicated and an explanation shall be provided;
Indication of the mark (8 sets, min. 5 by 5 cm, max. 10 by 10cm; if color is claimed, 2 more sets in black and white); if it is a three-dimensional sign, a reproduction capable of defining the three-dimensional shape shall be submitted;
Executed Power of attorney (if the original copy is not available, the facsimile copy is required for filing)
Certified Priority document (if applicable), which can be submitted within three months after the Chinese filing date
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Procedures in the Trademark Office
Upon receipt, each application is examined as to the formality of the documents, the registrability of the mark, and the existence of prior conflicting applications or registrations.
If the registration application documents are complete and the application form is filled out according to the relevant provisions, the Trademark Office will accept the application and notify the applicant in writing. If not, the Trademark Office will not accept the application and will notify the applicants in writing with an explanation.
If any supplements or corrections need to be made for an application, the Trademark Office will notify the applicant to make such rectifications within 30 days from receipt of the notification. If the applicant fails to do so within the time limit, the application will be deemed to have been abandoned and the Trademark Office will notify the applicant in writing.
If a trademark registration application is in conformity with the relevant provisions of this Law, and it is not 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 will preliminarily approve the application and publish such trademark.
Any person may, within three months from the date of publication, file an opposition against a trademark that has, after examination, been preliminarily approved. If no opposition is filed after the expiration of the time limit from the publication, or it is adjudicated that the opposition is not justified , the trademark shall be approved for registration, a certificate of registration shall be issued, and the registered trademark shall be published.
Where the applicant is dissatisfied with the decision of the Trademark Office, he may, within fifteen days from receipt of the notification, apply for review to the Trademark Review and Adjudication Board.
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Publication
After preliminary approval of the application, the mark is published in the Trademark Gazette for opposition within 3 months.
If there is no opposition or the opposition fails, the registration of the mark as approved will be published again in the Trademark Gazette.
The Trademark Gazette, which is issued weekly, also publishes changes of names and addresses of the registrant, assignment of the registered marks, etc.
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Opposition
Any one may file an opposition within 3 months after publication in the Trademark Office. The opponent must state the specific requests, facts and grounds, with relevant proofs attached. The Office will notify the trademark applicant. The applicant must respond to the opposition within 30 days from receipt of the notice. Failure to make a reply will not affect the adjudication by the Office on the opposition.
The Office will hear both the opponent and the opposed party's statements of facts and grounds and shall, after investigation and verification, make a decision and notify the interested parties.
Any interested party dissatisfied with the Office's decision may apply for review, within 15 days of receipt of the decision, to the Trademark Review and Adjudication Board.
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Application for Review (Appeal to the Trademark Review and Adjudication Board)
If an applicant is dissatisfied with the decisions of the Trademark Office, such as refusing the registration, renewal, assignment, or adjudication of opposition, it or he may file an application for review to the Trademark Review and Adjudication Board ("TRAB") within 15 days from receipt of the notification.
The TRAB will make the review or hear both the opponent and the opposed party's statements of facts and grounds, and after investigation and verification, make a decision on the review or adjudication on opposition and notify both parties in writing.
If any party is dissatisfied with the decision or adjudication of the TRAB, he may appeal to the people's court within 30 days from receipt of the notification.
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Duration and Renewal
Registration is valid for ten years, counting from the date the registration is approved and is renewable for like periods. Renewal must be sought within six months preceding expiration of the current term (six-month extension permitted with additional fee). Renewals are published after being approved.
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Use of a Trademark
A trademark registrant has the right to mark "Registered Trademark" or a symbol to indicate that the trademark is registered.
Failure to use the mark for 3 consecutive years subjects the registration to cancellation. The use of a trademark includes its use on goods, packages or containers and commodity trading instruments, in advertisements and exhibitions, and other commercial activities.
Anyone who uses a mark, whether or not registered, is responsible for the quality of the goods or services bearing the mark; deterioration in the quality of the goods or services, to the point where the public is deceived, subjects the offender to a fine by the authorities.
If a registered trademark is to be used in respect of other goods of the same class, a new application for registration must be filed.
If the sign of a registered trademark is to be altered, a new application for registration must be filed.
If, after the registration of a trademark, the name, address or other registered matters concerning the registrant change, an application regarding the change must be filed.
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Assignment
A registered trademark can be assigned. Where a registered trademark is to be assigned, the assignor and assignee shall conclude an agreement 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 will be published after it has been approved. The assignee will have the exclusive right to use the trademark from the date of publication.
An applicant to register an assignment must apply for the assignment of all of his or her registered trademarks that are identical with or similar to the mark in question in respect to the same or similar goods.
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License
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 licensed to use a registered trademark of another person, the name of the licensee and the geographic 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 recording within the date of the contract concluded.
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Marking
Goods for which a trademark has been registered may bear the indication ""Registered Trademark" (in Chinese) or the sign ® (or the equivalent Chinese character) to indicate the mark is registered. The marking may be upon the goods, or on the packaging, description, or other attachment to the goods.
Falsely indicating that a mark is registered subjects the offender to a fine.
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Cancellation of a Registered Trademark
Where a registered trademark stands in violation of the provisions of this Law in the following circumstances, the owner of the trademark or any interested party may, within five years from the date of registration, request the Trademark Review and Adjudication Board to make an adjudication to cancel the registered trademark:
1. a trademark registered for use for identical or similar goods is a reproduction, an imitation, or a translation of another person's well-known mark not registered in China and likely to cause confusion;
2. a trademark registered for use for non-identical or dissimilar goods is a reproduction, an imitation, or a translation of a well-known trademark of another person that has been already registered in China, misleads the public and is likely to cause prejudice to the interests of the well-known mark registrant;
3. a registered trademark is a person's trademark registered in the name of an agent or representative that acts as the agent or representative of the person, without authorization from the person, and the person raises an opposition;
4. a trademark contains a geographical indication of a goods in respect of which the trademark is used, the goods does not originate in the region indicated, and it misleads the public; or
5. the registration of a trademark causes prejudice to the prior right of another person, or unfair means is used to preemptively register a trademark of certain reputation which another person has used.
Where the registration has been made in bad faith, the owner of a well-known mark shall not be bound by the five-year limitation.
Where a registered trademark stands in violation of the provisions of this Law, in which a sign used is prohibited to use or is unregisterable, 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.
A prior trademark registrant that believes another person's trademark registered later on the goods identical with or similar to his goods, is same or similar to his trademark, may, within five years from the date of registration for later registered trademark, apply to the Trademark Review and Adjudication Board for adjudication to cancel the registered trademark of another person.
A registered mark in the following circumstances is also subject to cancellation:
(1) when the registered trademark is altered and no new application is filed for registration of the altered mark;
(2) when the name, address or other registered matters concerning the registrant of the registered trademark is altered and no application is filed;
(3) when the registered trademark is assigned without approval of the Trademark Office;
(4) when the registered trademark has not been used in China without just reasons for three consecutive years;
(5) when 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.
For the circumstances in items (1) to (3) and (5), the Trademark Office may cancel the registration of the trademark. For the circumstance in item (4), any person may request the Trademark Office to cancel the registration of the trademark.
A trademark registrant dissatisfied with the decision of the Trademark Office to cancel its or his registration may, within 15 days from the receipt of the notification, file an application for review to the Trademark Review and Adjudication Board.
If the trademark registrant or any interested party is dissatisfied with the decision of the Board, it or he may, within 30 days from receipt of the notification, institute legal proceedings with the people's court.
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Effect of Cancellation of a Registered Trademark
Any exclusive right of a registered trademark that has been cancelled shall be deemed to be non-existent from the beginning.
The decision or adjudication for canceling the registered trademark shall have no retroactive effect on any judgment or ruling of trademark infringement which has been pronounced and enforced by the people's court, on any decision concerning the handling of a dispute over trademark infringement which has been complied with or compulsorily executed, or on any contract of trademark license or trademark assignment which has been performed prior to the cancellation of the registered trademark; however, the damage caused to other persons in bad faith on the part of the trademark registrant shall be compensated.
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Status of Unregistered Trademark
Use of unregistered trademarks is permitted, but the quality of the goods bearing unregistered marks is subject to the same quality control provisions as registered marks. Furthermore, no exclusive rights accrue to the holder of an unregistered trademark.
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Well-Known Marks
A well-known mark is a mark widely known to the relevant sector of the public and enjoys a relatively high repute in China.
The scope of protection for a well-known mark is broader than that of a normal registered trademark:
(1) a trademark for use on identical or similar goods is a reproduction, an imitation, or a translation of another person's well-known mark not registered in China and likely to cause confusion, the trademark shall not be registered and its use shall be prohibited.
(2) a trademark for use on non-identical or dissimilar goods is a reproduction, an imitation, or a translation of a well-known trademark of another person that has been already registered in China, misleads the public and is likely to cause prejudice to the interests of the well-known mark registrant, the trademark shall not be registered and its use shall be prohibited.
(3) an interested party who believes that another person has registered his or its well-known mark as an enterprise name, which is likely to deceive or mislead the public, may apply to the competent authority for the registration of enterprise names for cancellation of the registration of said enterprise name.
Any interested party who believes that its or his trademark is a well-known mark may submit the materials to certify the mark well-known in the relevant authorities for the following circumstances:
(1) when the interested party believes that another person's primarily examined and published trademark is not in conformity with the relevant provision of Article 13 of the Trademark Law and files an opposition with the Trademark Office, it or he may submit relevant documents certifying that his or its mark is well known.
(2) when the interested party believes that another person's registered mark is not in conformity with the relevant provision of Article 13 of the Trademark Law and request the Trademark Review and Adjudication Board to make an adjudication to cancel the registered mark, it or he may submit relevant documents certifying that his or its mark is well known.
(3) when the interested party believes that a trademark used by another person shall be prohibited to use in accordance with the Article 13 of the Trademark Law and requests for protection of its or his well-known mark, it or he may file an request in writing for prohibition of the use in an administrative authorities for industry and commerce at or above the city level of the place where the case arises, and submit relevant documents certifying that his or its mark is well known.
The Trademark Office or the Trademark Review and Adjudication Board is responsible for determining a well-known mark.
In determining whether a mark is a well-known mark, the Trademark Office or the Trademark Review and Adjudication Board shall take into account the following factors:
(1) the degree of knowledge or recognition of the mark in the relevant sector of the public;
(2) the duration of use of the trademark;
(3) the duration, extent and geographical area of any promotion of the mark;
(4) the record of protection for the mark as a well-known mark; and
(5) other factors contributing to the reputation of the mark.
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Exclusive Right for a Registered Trademark
The exclusive right in a trademark or service mark is acquired by registration, which grants the registrant the exclusive right to use the registered mark as approved for the goods in relation to which the mark has been approved to register.
A trademark registrant enjoys the exclusive right for the use of a registered trademark. Any of the following acts constitutes an infringement of the exclusive right:
(1) to use a trademark that is identical with or similar to a registered trademark in respect of the same or similar goods without the authorization from the trademark registrant;
(2) to sell goods that are in infringement of the exclusive right to use a registered trademark;
(3) to counterfeit, or to make representations of a registered trademark of another person without authorization, or to sell such representations of a registered trademark as were counterfeited or made without authorization;
(4) to replace, without consent of the trademark registrant, the 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.
Other acts causing prejudice to the exclusive right of another person to use a registered trademark include the following:
(1) to use symbols or signs identical with or similar to the registered trademark of another person on the same or similar goods, as the designation or decoration of the goods, which misleads the public;
(2) to provide intentionally with such facilities as of storage, transportation, postal service, and concealment for any infringement of the exclusive right of another person to use a registered trademark;
(3) to use prominent lexical items words identical with or similar to a registered trademark of another person, as one's own enterprise name on the same or similar goods, which easily causes confusion on the relevant sector of the public;
(4) to use a reproduction, imitation, or translation of another person's registered well-known mark or the main part thereof, as a trademark on non-identical or dissimilar goods, which misleads the public and is likely to cause prejudice of the interests of the well-known mark registrant; and
(5) to register lexical items identical with or similar to another person's registered trademark as one's own domain name, and conduct, via the domain name, e-commerce in the trade of relevant goods, which easily causes confusion on the relevant sector of the public.
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Protection of the Exclusive Right through Customs
According to the relevant provisions of the General Administration of Customs, importation or exportation of any goods that infringes the exclusive right to use a registered trademark is prohibited.
A trademark registrant may record the right of the registered trademark with the Customs General Office.
Following the recordal, if the registrant finds that the right is being infringed, either by import or export, it or he may petition the Customs authorities to seize and impound any suspected infringing goods.
Without prior recordation of the trademark right, a trademark registrant discovers that the infringing goods are imported or exported or to be imported or exported, he or she may request the Customs office to take the measures to protect its or his right, together with materials for recording the right of the registered trademark with the Customs.
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Protection of the Exclusive Right of a Registered Trademark
A trademark registrant or interested party who alleges that its or his exclusive right of a registered trademark is infringed, may bring an action against the infringer either in the people's court or the administrative authorities for industry and commerce.
It is the duty of the plaintiff to provide evidence in support of his allegations.
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Administrative Authority for Industry and Commerce
The administrative authority for industry and commerce may, upon determining the infringement has taken place, order the infringer to immediately stop the infringing act, confiscate and destroy the infringing goods and tools specially used to manufacture the infringing goods and counterfeit representations of the registered trademark, and may impose a fine.
Where any interested party is dissatisfied with the decision of the administrative authority for industry and commerce, he may, within fifteen days from receipt of the notification, institute legal proceedings in the people's court in accordance with the Administrative Procedural Law of the People's Republic of China.
If there have been instituted no legal proceedings or made no performance of the decision at expiration of the said period, the administrative authority for industry and commerce may request the people's court for compulsory execution thereof.
Where a party so requests, the administrative authority for industry and commerce handling a dispute may mediate on the amount of compensation for the infringement of the exclusive right to use the trademark; where the mediation fails, the interested party may institute legal proceedings with the people's court in accordance with the Civil Procedural Law of the People's Republic of China.
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The People's Court
A lawsuit brought on a trademark infringement is under the jurisdiction of the people's court of the place where the defendant has his domicile or the infringement is committed.
The intermediate people's courts have subject matte jurisdiction as courts of first instance over cases arising under the patent law.
The statute of limitations for bringing an infringement action is two years from the date on which the trademark registrant or any interested party obtains or should have obtained knowledge of the infringing act.
If the plaintiff or defendant is not satisfied with the judgment of first instance court, he may appeal to the court at higher level, the court of second instance, within 15 days (or 30 days if the party has no domicile in China) after the date on which the written judgment was served. The judgment that has not been appealed against within such time limit, is legally effective.
The judgment and the written order of the second instance court are final and legally effective.
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Preliminary Injunctions
Where a trademark registrant or an 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, before instituting legal proceedings in the People's Court, file an application with the People's Court to order cessation of the relevant act and to take measures for property preservation.
Where the evidence will possibly be destroyed or lost or difficult to be obtained again afterwards, in order to stop an infringing act, any trademark registrant or interested party may, before instituting legal proceedings in the People's Court, file an application with the People's Court for preservation of the evidence.
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Remedies
Remedies available to the trademark registrant whose exclusive right of a registered trademark has been infringed include injunction and damages.
The amount of damages for infringement of the exclusive right to use a registered trademark shall be the profit that the infringer has earned through the infringement in the period of the infringement or the losses that the infringee has suffered from the infringement during the period of the infringement, including any reasonable expenses the infringee has incurred in his effort to stop the infringement.
Where the profit earned by the infringer or losses suffered by the infringee from the infringement mentioned in the preceding paragraph is difficult to determine, the people's court shall impose an amount of damages not exceeding RMB 500,000 yuan, according to the circumstances of the act of infringement.
Where anyone sell a goods that it or he does not know has infringed the exclusive right of another person to use a registered trademark, and is able to prove that it or he has obtained the goods legitimately and indicate the supplier, it or he shall not be bear liability for damages.
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Criminal Liabilities
Where any party uses, without the authorization from the trademark registrant, a trademark identical with a registered trademark in relation to identical goods, 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 bearing 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.
A person counterfeiting the trademark of another may, if the circumstances are serious, be sentenced to a fixed-term imprisonment of not more than three years or criminal detention and may also or only be fined; if the circumstances are especially serious, he may be sentenced to a fixed-term imprisonment of not less than three years but not more than seven years and also be fined.
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