LAWS AND REGULATIONS

Decree of The State Council of the People's Republic of China

(No. 358)

The Regulations on the Implementation of the Trademark Law of the People's Republic of China are hereby promulgated and shall come into force as of September 15, 2002.

Premier Zhu Rongji

August 3rd, 2002

Regulations for the Implementation of the Trademark Law of the People's Republic of China

Chapter I General provisions

Article 1 These Regulations are formulated in accordance with the Trademark Law of the People's Republic of China (hereinafter referred to as the Trademark Law).

Article 2 The provisions of these Regulations concerning commodity marks shall apply to service marks.

Article 3 The use of trademarks as mentioned in the Trademark Law and these Regulations includes the use of trademarks on commodities, commodity packages or containers and commodity transaction documents, or the use of trademarks in advertising, exhibitions and other commercial activities.

Article 4 The term "goods for which the State stipulates that a registered trademark must be used" as mentioned in Article 6 of the Trademark Law refers to the goods for which a registered trademark must be used as prescribed by laws and administrative regulations.

Article 5 Where a dispute arises in the course of trademark registration or trademark review and adjudication in accordance with the provisions of the Trademark Law and these Regulations, where the parties concerned consider that their trademark constitutes a well-known trademark, they may apply to the Trademark Office or the Trademark Review and Adjudication Board for recognition of the well-known trademark accordingly. Reject an application for trademark registration in violation of Article 13 of the Trademark Law or cancel the registration of a trademark in violation of Article 13 of the Trademark Law. When filing an application, the parties concerned shall submit evidentiary materials showing that their trademarks constitute well-known trademarks.

The Trademark Office and the Trademark Review and Adjudication Board shall, at the request of the parties concerned and on the basis of ascertaining the facts, determine whether the trademark constitutes a well-known trademark in accordance with the provisions of Article 14 of the Trademark Law.

Article 6 The geographical indications provided for in Article 16 of the Trademark Law may be applied for registration as certification marks or collective marks in accordance with the provisions of the Trademark Law and these Regulations.

Where a geographical indication is registered as a certification mark, the natural person, legal person or other organization whose goods meet the conditions for the use of the geographical indication may request the use of the certification mark, and the organization controlling the certification mark shall allow it. Where a geographical indication is registered as a collective mark, a natural person, legal person or other organization whose goods meet the conditions for the use of the geographical indication may request to join a body, association or other organization registered with the geographical indication as a collective mark, and such body, association or other organization shall be accepted as a member in accordance with its articles of association; A body, association or other organization that does not require participation in the registration of the geographical indication as a collective trademark may also use the geographical indication properly, and the organization, association or other organization has no right to prohibit it.

Article 7 Where a party entrusts a trademark agency to apply for trademark registration or handle other trademark matters, it shall submit a power of attorney. The power of attorney shall specify the agency content and authority; The power of attorney of a foreigner or foreign enterprise shall also state the nationality of the principal.

The notarization and certification procedures for the power of attorney of a foreigner or a foreign enterprise and its related certification documents shall be handled in accordance with the principle of reciprocity.

The term "foreigner or foreign enterprise" as mentioned in Article 18 of the Trademark Law refers to a foreigner or foreign enterprise that has no habitual residence or business establishment in China.

Article 8 The Chinese language shall be used in any application for trademark registration or any other trademark matters.

Where the various certificates, certification documents and evidentiary materials submitted in accordance with the provisions of the Trademark Law and these Regulations are in foreign languages, the Chinese translation shall be attached; If no such document is attached, it shall be deemed that the certificate, certifying document or evidentiary material has not been submitted.

Article 9 A staff member of the Trademark Office or the Trademark Review and Adjudication Board shall recuse himself under any of the following circumstances, and the parties or interested parties may request him to recuse himself:

(1) he is a party or a near relative of a party or his agent;

(2) having other relationships with parties or agents that may affect justice;

(3) having an interest in applying for trademark registration or handling other trademark matters.

Article 10 Unless otherwise provided in these Regulations, the date on which the parties submit the documents or materials to the Trademark Office or the Trademark Review and Adjudication Board, if directly submitted, the date of submission shall prevail; If sent by post, the date of postmark shall prevail; If the date of the postmark is not clear or there is no postmark, the date of actual receipt by the Trademark Office or the Trademark Review and Adjudication Board shall prevail, except that the parties can present evidence of the actual date of the postmark.

Article 11 The documents of the Trademark Office or the Trademark Review and Adjudication Board may be served on the parties by post, direct submission or other means. Where a party entrusts a trademark agency, the documents served on the trademark agency shall be deemed to have been served on the party.

The date on which the Trademark Office or the Trademark Review and Adjudication Board serves various documents to the parties concerned, if mailed, the date of postmark received by the parties shall prevail; If the date of the postmark is not clear or there is no postmark, 15 days after the date of issuance of the document shall be deemed to have been served on the party concerned; For direct delivery, the date of delivery shall prevail. If the document cannot be mailed or submitted directly, it may be served on the party by way of public announcement, and the document shall be deemed to have been served 30 days after the date of publication of the public announcement.

Article 12 The international registration of trademarks shall be handled in accordance with the relevant international treaties to which China is a party. Specific measures shall be formulated by the administrative department for industry and commerce under The State Council.

Chapter II Application for Trademark registration

Article 13 An application for trademark registration shall be filed according to the published classification of goods and services. For each trademark registration application, one trademark Registration Application and five trademark drawings shall be submitted to the Trademark Office. If the color is specified, 5 copies of coloring drawings and 1 copy of black and white drafts shall be submitted.

The trademark drawing must be clear and easy to paste, printed on clean and durable paper or replaced with a photograph, and the length or width should not be greater than 10 cm, not less than 5 cm.

Where a three-dimensional mark is applied for registration of a trademark, it shall be declared in the application and a drawing that can determine the three-dimensional shape shall be submitted.

Where a trademark is applied for by color combination, it shall be declared in the application and a written description shall be submitted.

An application for the registration of a collective trademark or certification mark shall be declared in the application, and the subject qualification certification documents and rules for the use of management shall be submitted.

Where the trademark is in a foreign language or contains a foreign language, the meaning shall be stated.

Article 14 In applying for trademark registration, the applicant shall submit a copy of the valid certificate that can prove his identity. The name of the applicant for trademark registration shall be consistent with the documents submitted.

Article 15 Names of commodities or services shall be filled in according to the classification table of commodities and services; Where the name of a commodity or service item is not included in the classification of commodities and services, a description of the commodity or service shall be attached.

The application for trademark registration and other relevant documents shall be typed or printed.

Article 16 Where a joint application is made for the registration of the same trademark, a representative shall be designated in the application. If no representative is designated, the first person listed in the order in the application form shall be the representative.

Article 17 Where an applicant changes its name, address or agent, or deletes a designated commodity, it may go through the formalities for such change with the Trademark Office.

Where the applicant transfers his application for trademark registration, he shall go through the transfer formalities with the Trademark Office.

Article 18 The date of application for trademark registration shall be the date on which the Trademark Office receives the application documents. Where the application procedures are complete and the application documents are filled out in accordance with the provisions, the Trademark Office shall accept the application and notify the applicant in writing; Where the application procedures are not complete or the application documents are not filled out in accordance with the provisions, the Trademark Office will not accept the application, notify the applicant in writing and explain the reasons.

The application procedures are basically complete or the application documents are basically in compliance with the provisions, but need to be corrected, the Trademark Office notify the applicant to make corrections, within 30 days from the date of receipt of the notice, in accordance with the specified content and return to the Trademark Office. If it is corrected and returned to the Trademark Office within the prescribed time limit, the application date shall be retained; If no correction is made within the time limit, the application shall be deemed to have been abandoned, and the Trademark Office shall notify the applicant in writing.

Article 19 Where two or more applicants apply on the same day for registration of identical or similar trademarks in respect of the same kind of goods or similar goods, each applicant shall, within 30 days from the date of receipt of the notification from the Trademark Office, submit evidence of prior use of the trademark before the application for registration. If the application is used on the same day or neither is used, each applicant may, within 30 days from the date of receipt of the notification from the Trademark Office, negotiate on its own and submit a written agreement to the Trademark Office; If the applicant is unwilling to negotiate or fails to negotiate, the Trademark Office shall notify each applicant to determine an applicant by drawing lots and reject the registration applications of others. Where the Trademark Office has notified but the applicant has not participated in the lottery, the application shall be deemed abandoned, and the Trademark Office shall notify the applicant who has not participated in the lottery in writing.

Article 20 Where a right of priority is claimed in accordance with the provisions of Article 24 of the Trademark Law, the copy of the application documents submitted by the applicant for trademark registration for the first time shall be certified by the trademark competent authority handling the application, and the date and number of the application shall be indicated.

Where a right of priority is claimed in accordance with the provisions of Article 25 of the Trademark Law, the supporting documents submitted by the applicant shall be certified by the institution prescribed by the administrative department for industry and commerce under The State Council; The international exhibition displaying its commodities shall be held within the territory of China except.

Chapter III Examination of trademark registration applications

Article 21 The Trademark Office shall examine the applications for trademark registration received in accordance with the relevant provisions of the Trademark Law and these Regulations, and shall give a preliminary examination and approval to any application for the registration of a trademark or for the use of a trademark on some of the designated goods. Where an application for the registration of a trademark on some of the designated goods does not comply with the provisions, it shall be rejected or the application for the registration of a trademark on some of the designated goods shall be rejected, and the applicant shall be notified in writing with reasons.

Where the Trademark Office has given preliminary examination and approval to an application for the registration of a trademark in respect of some of the designated goods, the applicant may, before the expiration of the objection period, apply for abandonment of the application for the registration of the trademark in respect of some of the designated goods; Where the applicant abandons the application for the registration of the use of a trademark on some of the designated goods, the Trademark Office shall withdraw the original preliminary examination and approval, terminate the examination procedures, and make a new announcement.

Article 22 Where an objection is filed against a trademark that has been published after preliminary examination and approval by the Trademark Office, the opponent shall submit a trademark objection in duplicate to the Trademark Office. The trademark opposition shall indicate the period of publication of the trademark Notice and the preliminary approval number of the trademark against which the trademark is opposed. The trademark opposition shall have a clear request and factual basis, and the relevant evidentiary materials shall be attached.

The Trademark Office shall promptly send a copy of the trademark opposition to the person against whom the opposition is opposed, and limit the person to reply within 30 days from the date of receipt of the copy of the trademark opposition. If the opposing party does not answer, it shall not affect the ruling of the Trademark Office.

If a party needs to supplement relevant evidentiary materials after filing an application for opposition or defense, it shall declare it in the application or defense, and submit it within three months from the date of submission of the application or defense. If the documents are not submitted at the expiration of the time limit, the parties shall be deemed to have given up supplementing the relevant evidentiary materials.

Article 23 The objection referred to in paragraph 2 of Article 34 of the Trademark Law shall be established, including in respect of some specified commodities. Where the objection is established in respect of some specified goods, the application for trademark registration in respect of those specified goods shall not be approved.

Where the registration announcement of the opposed trademark has been published before the ruling of opposition takes effect, the original registration announcement shall be cancelled, and the trademark whose registration has been approved by the ruling of opposition shall be published again.

Where a trademark has been approved for registration by an objection ruling, it shall not have retrospective effect on the use of a mark identical or similar to that trademark by another person on the same or similar goods from the date of expiration of the objection ruling to the effective date of the objection ruling; However, any loss caused to the trademark registrant by the malicious intent of the user shall be compensated.

For a trademark whose registration has been approved by a ruling of opposition, the time limit for filing an application for review shall be calculated from the date of the announcement of the ruling of opposition to the trademark.

Chapter IV Alteration, assignment and renewal of registered trademarks

Article 24 Where the name, address or other registered matters of a trademark registrant are changed, an application for change shall be submitted to the Trademark Office. After approval, the Trademark Office shall issue the corresponding certificate to the trademark registrant and publish it. If no approval is granted, the applicant shall be notified in writing and the reasons shall be explained.

Where the name of a trademark registrant is changed, a certificate of change issued by the relevant registration authority shall also be submitted. If the alteration certificate is not submitted, it may be submitted within 30 days from the date of filing the application; If the application is not submitted at the expiration of the time limit, the application for alteration shall be deemed abandoned, and the Trademark Office shall notify the applicant in writing.

Where the name or address of a trademark registrant is changed, the trademark registrant shall change all its registered trademarks at the same time; If no change is made, the application for change shall be deemed abandoned, and the Trademark Office shall notify the applicant in writing.

Article 25 Where a registered trademark is assigned, the assignor and the assignee shall submit an application for assignment of the registered trademark to the Trademark Office. The application for the transfer of a registered trademark shall be handled by the assignee. After the Trademark Office has approved the application for assignment of a registered trademark, it shall issue the corresponding certificate to the assignee and publish it.

Where a registered trademark is assigned, the trademark registrant shall assign the same or similar trademark registered in respect of the same or similar goods; If not transferred together, the Trademark Office shall notify it of correction within a time limit; If no correction is made within the time limit, the application for assignment of the registered trademark shall be deemed abandoned, and the Trademark Office shall notify the applicant in writing.

Where an application for the assignment of a registered trademark may cause misidentification, confusion or other adverse effects, the Trademark Office shall not approve it, and shall notify the applicant in writing with reasons.

Article 26 Where the right to exclusive use of a registered trademark is transferred for reasons other than the transfer, the party accepting the transfer of the right to exclusive use of the registered trademark shall go through the formalities for the transfer of the right to exclusive use of the registered trademark with the relevant supporting documents or legal documents.

Where the right to exclusive use of a registered trademark is transferred, the same or similar trademarks registered by the owner on the same or similar goods shall be transferred together; If not transferred together, the Trademark Office shall notify it of correction within a time limit; If no correction is made at the expiration of the time limit, the application for the transfer of the registered trademark shall be deemed abandoned, and the Trademark Office shall notify the applicant in writing.

Article 27 Where a registered trademark needs to be renewed, an application for renewal of trademark registration shall be submitted to the Trademark Office. After approving the application for renewal of trademark registration, the Trademark Office shall issue the corresponding certificate and publish it.

The term of validity of the renewed registered trademark shall be calculated from the day after the expiration of the previous term of validity of the trademark.

Chapter V Trademark review and Adjudication

Article 28 The Trademark Review and Adjudication Board shall accept applications for trademark review and adjudication filed in accordance with the provisions of Articles 32, 33, 41 and 49 of the Trademark Law. The Trademark Review and Adjudication Board shall conduct the review according to the facts and in accordance with the law.

Article 29 The term "dispute over a registered trademark" as mentioned in paragraph 3 of Article 41 of the Trademark Law means that the trademark registrant who applied for registration earlier considers that the trademark applied for registration later by another person is identical with or similar to the registered trademark on the same or similar goods.

Article 30 To apply for trademark review and adjudication, an application shall be submitted to the Trademark Review and Adjudication Board, and a corresponding number of copies shall be submitted according to the number of other parties. Where an application for review is made based on the written decision or ruling of the Trademark Office, a copy of the written decision or ruling of the Trademark Office shall also be attached.

After receiving the application, the Trademark Review and Adjudication Board shall, upon examination, accept the application if it meets the requirements for acceptance; If the application does not meet the requirements for acceptance, the application shall not be accepted, and the applicant shall be notified in writing with reasons; If a correction is required, the applicant shall make the correction within 30 days from the date of receipt of the notice. If the trademark Review and Adjudication Board still fails to comply with the provisions after correction, the Trademark Review and Adjudication Board shall not accept the application and notify the applicant in writing with reasons; Where no correction is made within the time limit, the application shall be deemed to have been withdrawn, and the Trademark Review and Adjudication Board shall notify the applicant in writing.

If the Trademark Review and Adjudication Board finds that the application for trademark review and adjudication does not meet the conditions for acceptance, it shall reject it and notify the applicant in writing with reasons.

Article 31 After accepting an application for trademark review and Adjudication, the Trademark Review and Adjudication Board shall promptly send a copy of the application to the other party, which shall be limited to reply within 30 days from the date of receipt of the copy of the application. Where no reply is made at the expiration of the time limit, the review and adjudication by the Trademark Review and Adjudication Board shall not be affected.

Article 32 If a party needs to supplement relevant evidentiary materials after filing an application for evaluation or defense, it shall declare it in the application or defense, and submit it within three months from the date of submission of the application or defense. Failure to submit relevant evidentiary materials at the expiration of the time limit shall be deemed to have been abandoned.

Article 33 The Trademark Review and Adjudication Board may, at the request of the parties or as required, decide to conduct public review of the application for review.

Where the Trademark Review and Adjudication Board decides to conduct public review of the application for review, it shall notify the parties in writing 15 days before the public review, informing them of the date, place and personnel of the public review. The parties shall reply within the time limit specified in the notice.

If the applicant does not reply or participate in the public review and adjudication, its application for review and adjudication shall be deemed withdrawn, and the Trademark Review and Adjudication Board shall notify the applicant in writing; If the respondent does not reply or participate in the public review and adjudication, the Trademark Review and Adjudication Board may review and adjudication in absentia.

Article 34 Where an applicant requests the withdrawal of his application before the Trademark Review and Adjudication Board makes a decision or ruling, the Scripture shall explain the reasons to the Trademark Review and Adjudication Board and the applicant may withdraw his application; If the application is withdrawn, the evaluation procedure shall be terminated.

Article 35 Where an applicant withdraws an application for trademark review and adjudication, he shall not file another application for review and adjudication based on the same facts and reasons. Where the Trademark Review and Adjudication Board has made a ruling or decision on an application for trademark review and adjudication, no one may file another application for review and adjudication based on the same facts and reasons.

Article 36 Where a registered trademark is revoked in accordance with the provisions of Article 41 of the Trademark Law, the right to exclusive use of the trademark shall be deemed to have ceased to exist from the beginning. The decision or ruling on the cancellation of a registered trademark shall not have retroactive effect on the judgment or ruling of the trademark infringement case made and executed by the people's court before the cancellation, the decision on the handling of the trademark infringement case made and executed by the administrative department for industry and commerce, and the trademark assignment or licensing contract already executed; However, the loss caused by the trademark registrant to others in bad faith shall be compensated.