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Explanation on the "Regulations on the Supervision and Administration of Trademark Agents"

Release Time：

2022-11-04

In order to implement the spirit of the report of the 20th National Congress of the Communist Party of China on "strengthening the legal protection of intellectual property rights", standardize trademark agency behavior, improve the quality of trademark agency services, maintain the normal order of the trademark agency market, and promote the healthy development of the industry, according to the Trademark Law of the People's Republic of China ” (hereinafter referred to as the "Trademark Law"), "Trademark Law Implementation Regulations of the People's Republic of China" (hereinafter referred to as the "Trademark Law Implementation Regulations") and other relevant laws and administrative regulations, the "Trademark Agency Supervision and Administration Regulations" (hereinafter referred to as the Regulations) are formulated ). The relevant situation is explained as follows: 1. Background and Necessity Since the promulgation and implementation of the Trademark Law and the Implementation Regulations of the Trademark Law, they have regulated trademark agency behavior, guided trademark agencies to standardize their operations, improved service quality, and promoted industry development. Good social effects have been achieved. However, with the rapid economic and social development of our country, some new situations and new problems have emerged in the field of trademark agency. First, the legal provisions involving trademark agency need to be improved. It is necessary to adopt departmental regulations to refine and implement the "Trademark Law" and "Trademark Law..."

1. Background and necessity

Since the promulgation and implementation Trademark Law and the Regulations for the Implementation of the Trademark Law, good social effects have been achieved in regulating trademark agency behavior, guiding trademark agencies to standardize their operations, improving service quality, and promoting industry development. However, with the rapid economic and social development of our country, some new situations and new problems have emerged in the field of trademark agency.

First, the legal provisions involving trademark agency need to be improved.It is necessary to adopt departmental regulations to refine and implement the relevant provisions of the Trademark Law and the Implementation Regulations of the Trademark Law , especially the latest revision of the Trademark Law in 2019 regarding the regulation of malicious trademark registration applications, in order to cope with the rapid development of the industry. Complex issues, providing clear legal support for trademark agency supervision.

Second, trademark agency behavior is not standardized enough, which has aroused public concern. In recent years, as the entry threshold for the trademark agency industry has been lowered, the number of trademark agencies has soared from more than 100 in 2003 to nearly 70,000. While the number has increased dramatically, there are not many agencies that actually have a certain business volume. Some agencies have irregular management and uneven service quality, and have even engaged in or helped clients maliciously register, hoard trading trademarks, improperly protect rights and other illegal activities, which not only damages the legitimate rights and interests of the parties, but also disrupts the market order. The development of the industry has had a negative impact and brought huge challenges to industry supervision and governance. It is urgent to further strengthen the effective regulation of trademark agency behavior.

Third, the legal authorization for trademark agency supervision is insufficient and there is a lack of clear basis for law enforcement. There are few regulatory means, weak regulatory power, and insufficient credit supervision. It is necessary to further standardize the work process and strictly enforce the law.

Therefore, in order to enhance the operability of laws and regulations, adapt to the practical needs of the development of the trademark agency industry, solve problems that arise in practice, and promote the trademark agency industry to follow the path of high-quality development, it is necessary to formulate these regulations.

2. Drafting process

In March 2018, the Trademark Office of the former State Administration for Industry and Commerce launched the drafting of the "Regulations on the Supervision and Administration of Trademark Agents." After the institutional reform, the State Intellectual Property Office continued to advance, fully drew on the regulatory experience of patent agencies, lawyers and other industries, combined with the actual needs and work practices of the trademark agency industry supervision, and extensively solicited local departments responsible for intellectual property work, industry organizations, and trademark agencies Based on the opinions of market entities and the opinions of market entities, a draft was formed for soliciting opinions from the public through the Chinese Government Legal Information Network from September 24 to October 24, 2020. At the same time, we extensively solicit opinions and suggestions from relevant ministries and commissions, local departments responsible for intellectual property work, as well as industry organizations, agencies, enterprises, experts and scholars, etc. After studying, absorbing and adopting the opinions of all parties, the regulations were further improved and a draft was formed for review, which was submitted to the State Administration for Market Regulation for legal review in December 2020. The State Intellectual Property Office actively cooperated. After fully studying, absorbing and adopting the opinions of all parties, it revised and formed a draft regulation. After being reviewed and approved by the State Administration for Market Regulation at the executive meeting, the 63rd Regulation of the State Administration for Market Regulation was issued on October 27, 2022. The order was announced and will come into effect on December 1.

3. Drafting ideas and main contents

The drafting of the regulations mainly focuses on the following three points: first, to improve the legal system of trademark agency, sort out and refine relevant legal provisions, and ensure the implementation of the law; second, to clarify the behavioral norms of trademark agencies, urge trademark agencies to standardize their operations, and improve agency service levels and Service quality; the third is to optimize the trademark agency supervision method, strengthen prior filing and in-process and post-event supervision, protect the legitimate rights and interests of the parties, and improve supervision efficiency. There are 43 regulations in five chapters, with key contents including:

(1) General Provisions

It mainly stipulates the purpose of formulating regulations, trademark agency matters, the concepts of trademark agencies and trademark agency practitioners, and the role of industry organizations. (Articles 1 to 4)

(2) Standardize the trademark agency registration system

In order to better protect the interests of the client, improve the trademark agency registration system, urge timely filing according to law, and give full play to the information disclosure role of the registration system, the requirements for trademark agencies to handle registration, continuation of registration, change of registration, and cancellation of registration are stipulated for agents. The agency provides specific guidance. By setting a three-year registration validity period, dynamic cleanup of agencies can be achieved. Administrative penalties are set up for trademark agencies that fail to register, change the record, renew the record or cancel the record in accordance with the law, as well as fail to properly handle the unfinished trademark agency business, harm the interests of the client or disrupt the order of the trademark agency market. At the same time, it is stipulated that the State Intellectual Property Office should publicize the filing information to facilitate public supervision. (Articles 5 to 9 and 36)

(3) Clarify the code of conduct for trademark agents

First, clarify the basic principles for engaging in trademark agency business. Trademark agencies shall not use unfair means such as fraud and deception when engaging in trademark agency business, and shall not harm national interests, social public interests and the legitimate rights and interests of others; trademark agencies shall not use their legal representatives as their legal representatives , shareholders, partners, actual controllers, senior managers, or apply for registration or transfer of other trademarks other than their agency services, nor may they engage in the above behaviors in disguise by establishing a separate market entity or a market entity with an affiliated relationship, etc. . The second is to require trademark agencies to establish and improve business management systems and operating systems such as quality management, conflict of interest review, malicious application screening, and file management. The third is to reiterate the obligations that trademark agencies and their practitioners should perform, including notification, confidentiality, signature and responsibility, etc. It is clear that trademark agencies should promptly submit relevant materials to the client, and stipulates that trademark agency practitioners must not work on more than two agencies at the same time. Part-time job in trademark agency, etc. Fourth, in view of the low-price malicious competition, false propaganda and other chaos existing in the trademark agency industry, trademark agencies are required to strengthen professional ethics and professional discipline education, organize business learning, and collect fees in accordance with the principles of voluntariness, fairness and good faith. Fifth, the disclosure of basic matters and business files of trademark agencies are stipulated. (Articles 10 to 19)

(4) Enrich trademark agency supervision methods

Refine the credit file system for trademark agencies and carry out graded and classified evaluations of the intellectual property service industry. In accordance with relevant national regulations, we must do a good job in the submission of annual reports by trademark agencies and inclusion in the list of serious illegal and untrustworthy persons, strengthen information disclosure, and improve the coordination and cooperation mechanism between the market supervision and management department and the intellectual property management department, such as information sharing, investigation and punishment notification, and business guidance. . In the process of daily supervision of trademark agency activities, the parties' cooperation obligations should be clarified, and methods such as interviews and opinions should be fully used to further enhance work efficiency. (Articles 20 to 26)

(5) Improve measures to deal with illegal trademark agency activities

The illegal acts of trademark agency listed in Article 68 of the Trademark Law and Article 88 of the Implementation Regulations of the Trademark Law are detailed, which will help malicious applications for registration and emergencies, public figures, public opinion hot spots, etc. Related trademarks, bribing or conveying benefits to those engaged in trademark registration and management, employing persons who have been engaged in trademark registration and management in violation of business restrictions, making false propaganda to deceive the public, and assisting the client in transferring when they knew or should have known. Behaviors such as applying for a registered trademark in bad faith, accepting entrustment despite knowing or should have known that the principal is abusing trademark rights, and instructing the principal to abuse trademark rights are clearly included in the scope of supervision. Strengthen the supervision of trademark agency business through the Internet, list typical illegal behaviors, and set corresponding penalties to prevent vicious competition. Standardized measures for dealing with decisions by relevant departments to stop accepting trademark agency business and resume accepting business. Improve the restrictive requirements for business practice and clarify that during the period when a trademark agency is stopped from accepting trademark agency business or fails to properly handle unfinished trademark agency business, the person in charge of the trademark agency, directly responsible personnel, and shareholders with management responsibilities, Partners are not allowed to appoint new directors, shareholders, or partners in trademark agencies. Through "dual governance" of agencies and personnel, we can prevent evasion of punishment through the establishment of new agencies. At the same time, it stipulates the supervisory responsibilities of the intellectual property management department and the disciplinary requirements and accountability for personnel engaged in trademark registration and management. Trademarks involved in violations of laws and disciplines should be strictly reviewed, supervised and managed in accordance with the Trademark Law and relevant laws and regulations, and handled in a timely manner. . (Articles 37 to 39)

In addition, the regulations also clarify that if laws and regulations have other provisions on the handling of illegal activities in the business activities of trademark agencies, such provisions shall prevail; in addition to complying with laws, regulations and these regulations, law firms and lawyers engaged in trademark agency business shall also abide by other relevant national regulations. Regulations; any organization or individual other than a trademark agency that violates these regulations and engages in trademark agency business and other related activities shall be dealt with in accordance with these regulations. (Articles 40 to 42)

It stipulates that targeted governance measures will be proposed starting from various aspects such as registration entrance, professional standards, regulatory means, and penalties for violations. After implementation, it will fundamentally reverse the problems of disorderly development and weak supervision of the trademark agency industry and better adapt to the trademark The need for high-quality career development.

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