Trademark Law of the People's Republic of China (2013)

(Adopted at the 24th Session of the Standing Committee of the Fifth National People 's Congress on August 23, 1982; amended for the first time according to the "Decision on the Revision of the ‘Trademark Law of the People's Republic of China’" adopted at the 30th Session of the Standing Committee of the Seventh National People's Congress on February 22, 1993; amended for the second time according to the "Decision on the Revision of the ‘Trademark Law of the People's Republic of China’" adopted at the 24th Session of the Standing Committee of the Ninth National People's' Congress on October 27 2001; amended for the third time according to the "Decision on the Revision of the ‘Trademark Law of the People's Republic of China’" adopted at the 4th Session of the Standing Committee of the twelfth National People's' Congress on August 30 2013)

General Provisions

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

Article 2.The Trademark Office of the administrative authority for industry and commerce under the State Council shall be responsible for the registration and administration of trademarks in China.

The Trademark Review and Adjudication Board, established under the administrative authority for industry and commerce under the State Council, shall be responsible for the settlement of disputes relating to trademarks.

Article 3.A registered trademark is a trademark that has been accepted and registered by the Trademark Office, which may be a trademark used on goods, a service mark, a collective mark or a certification mark. The owner of a registered trademark shall have the exclusive right to use the trademark, which shall be protected by law.

A collective mark referred to in this Law is a sign registered in the name of a group, association or other organization for use by the members of such an organization in the course of trade to indicate the users' membership in the organization.

A certification mark referred to in this Law is a sign controlled by an organization capable of monitoring certain goods or services for use by organizations or persons other than such an organization on their goods or services to certify the geographical origin, material, mode of manufacture, quality or other specific characteristics of the goods or services.

Provisions shall be made by the administrative authority for industry and commerce under the State Council concerning special matters in the registration and administration of collective marks and certification marks.

Article 4.Any natural person, legal person or other organization, intending to acquire the exclusive right to use a mark for his goods or services in his production and business operations, shall apply for registration of the mark to the Trademark Office.

Provisions in this Law concerning trademarks used on goods shall apply to service marks.

Article 5.Two or more natural persons, legal persons or other organizations may jointly apply for registration of a trademark to the Trademark Office, and may jointly enjoy and exercise the exclusive right to use the trademark.

Article 6.For goods that, as required by the laws or administrative regulations, must bear a registered trademark, an application for registration of a trademark shall be filed. If no registration has been made, such goods cannot be offered for sale in the market.

Article 7.When applying for the registration of a trademark and using a trademark, the principle of good faith shall be followed.

Any user of a trademark shall be responsible for the quality of the goods on which the trademark is used. Administrative authorities for industry and commerce at different levels shall, through the administration of trademarks, stop any practices that deceive consumers.

Article 8.Any sign, capable of distinguishing the goods or services of one natural person, legal person or any other organization from those of other persons, including words, devices, letters, numerals, three-dimensional signs, combination of colours, sounds, etc., as well as the combination of such signs, shall be eligible for application for registration as a trademark.

Article 9.A trademark that is the subject of an application for registration shall have distinctive character and be capable of being readily identified and distinguished, and shall not be in conflict with the legal rights obtained earlier by other persons.

The owner of a registered trademark has the right to use the sign "Registered Trademark" or other signs indicating registration.

Article 10.The following signs shall not be used as trademarks:

(1) those identical with or similar to the State name, national flag, national emblem, national anthem, military flag, army emblem, military anthem, or decorations of the People's Republic of China, etc., and those identical with the name or symbol of a central government department of the State, or with the name of the particular place, or with the name or image of the symbolic building, where a central government department of the State is located;

(2) those identical with or similar to the State name, national flag, national emblem or military flag of a foreign country, etc., unless consent has been given by the government of the country;

(3) those identical with or similar to the name, flag or emblem of an international intergovernmental organization, etc., unless consent has been given by the organization or the public is not likely to be misled by such use;

(4) those identical with or similar to an official sign or hallmark indicating control and warranty, unless authorization has been given;

(5) those identical with or similar to the name or symbol of the Red Cross or the Red Crescent;

(6) those having the nature of discrimination against any nationality;

(7) those having the nature of fraud, being liable to mislead the public about the characteristics of the goods such as the quality or the place of origin; or

(8) those detrimental to socialist morality or customs, or having other unhealthy influences.

The geographical name of an administrative division at or above the county level or a foreign geographical name well-known to the public shall not be used as a trademark, unless the geographical name has another meaning or the geographical name is used as a component part of a collective mark or a certification mark; registered trademarks consisting of or containing geographical names shall continue to be valid.

Article 11.The following signs shall not be registered as trademarks:

(1) signs which consist exclusively of the generic names, designs, or model numbers of the goods in respect of which the trademark is used;

(2) signs which consist exclusively of direct indications of the quality, primary raw material, functions, intended purposes, weight, quantity or other characteristics of goods; or

(3) Other signs which are devoid of any distinctive character.

Signs mentioned in the preceding paragraph may be registered as trademarks if they have acquired distinctive character through use and are capable of being readily identified and distinguished.

Article 12.Where a three-dimensional sign is the subject of an application for registration of a trademark, the trademark shall not be registered if it consists exclusively of the shape which results from the nature of the goods themselves, the shape of goods which is necessary to obtain a technical result, or the shape which gives substantial value to the goods.

Article 13.Where the holder of a trademark, which is well known to the relative public, deems that his rights to the trademark is infringed, he may request the protection of the trademark as a well- known trademark in accordance with the stipulations of this law.

A trademark shall not be registered and its use shall be prohibited where the trademark constitutes a reproduction, an imitation, or a translation, of a well-known trademark of another person not registered in China and is likely to create confusion, if the trademark is the subject of an application for registration in respect of goods which are identical or similar to the goods to which the well-known trademark applies.

A trademark shall not be registered and its use shall be prohibited where the trademark constitutes a reproduction, an imitation, or a translation, of a well-known trademark of another person already registered in China and is likely to mislead the public and damage the interests of the owner of the registered well-known trademark, if the trademark is the subject of an application for registration in respect of goods which are not identical or similar to the goods to which the well-known trademark applies.

Article 14.A well-known trademark shall, upon the request of the party concerned, be determined as one fact to be cognized in dealing with trademark related matters.

The following factors shall be considered in determining a well-known trademark:

(1) reputation of the trademark in the relevant sector of the public;

(2) duration of use of the trademark;

(3) duration, degree, and geographical scope of any publicity for the trademark;

(4) history of protection of the trademark as a well-known trademark; and

(5) other factors contributing to the reputation of the trademark.

In the procedure of examining a trademark registration or investigating and prosecuting the infringement of the exclusive right to use a registered trademark by the administrative authority for industry and commerce, where the party concerned makes a request based on the provision of Article 13 of this law, the Trademark Office may determine whether a trademark is well known or not according to the need to examine or prosecute a trademark related case.

When handling a trademark disputed case, where the party concerned makes a request based on the provision of Article 13 of this law, the Trademark Review and Adjudication Board may determine whether a trademark is well known or not according to the need to handle the case.

In hearing a trademark civil or administrative case, where the party concerned makes a request based on the provision of Article 13 of this law, the people’s court designated by the Supreme People’s Court may determine whether a trademark is well known or not according to the need to hear the case.

The producers and the business operators shall not use the words, “well-known trademark”, on goods, packages or containers of the goods, or use the words in advertising, exhibition or any other business activities.

Article 15.A trademark shall not be registered and its use shall be prohibited if the agent or representative of the person who is the owner of a trademark applies, without authorization, for the registration of the trademark in his own name and if the owner raises an opposition.

Where a trademark for which a registration is applied is identical or similar to an early used trademark of another party that is not registered, in respect of the same or similar goods, and where the applicant being of contract, business or other relationship except the relationship referred to in the preceding paragraph, is fully aware of the existence of the trademark owned by the other party, the trademark shall not be registered, if the other party raises an opposition.

Article 16.A trademark shall not be registered and its use shall be prohibited if it consists of or contains a geographical indication in respect of goods not originating in the region indicated, to such an extent as to mislead the public; however, registrations made in good faith shall continue to be valid.

A geographical indication referred to in the preceding paragraph is a sign which indicates a good as originating in certain region, where a given quality, reputation or other characteristic of the good is essentially attributable to the natural or human factors of the region.

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

Article 18.Any Chinese entity or individual intending to apply for registration of a trademark or for any other matters concerning a trademark may handle it individually or may entrust a legally set-up trademark agency to act as his agent.

Any foreigner or foreign enterprise intending to apply for registration of a trademark or for any other matters concerning a trademark in China shall entrust a legally set-up trademark agency to act as his agent.

Article 19.The trademark agency shall follow the principle of good faith, comply with the provisions of laws and administrative regulations and handle the applications for trademark registrations and other trademark matters according to the instruction of its clients. In respect of the commercial secrets of the clients learned in the procedure of acting on behalf of the clients, the agency shall bear the obligation to keep them confidential.

If a trademark for which the registration is applied by the client is possibly under the circumstances of not being approved registration as required in this law, the trademark agency shall inform the client of this explicitly.

If a trademark agency knows or shall know that the trademark for which the client intends to apply belongs to the circumstances provided in Article 15 and Article 32 of this law, the trademark agency shall not accept the entrustment.

Except the application for the registration of trademark relating to its agent service, the trademark agency shall not apply for the registration of any trademarks.

Article 20.Trademark agency association shall, in accordance with the provisions of the articles of association, strictly execute the conditions to adopt its members and impose punishment on members that have violated professional self-discipline.

Article 21.Applications for international registration of trademark shall be dealt with in accordance with the relevant international treaties which the People’s Republic of China has concluded and acceded to. The specific measures therefor shall be formulated by the State Council.