商标法 2013英文 - 修改对照

TRADEMARK LAW OF THE P.R.C

COMPARATIVE TABLE

2001 LAW

&

2013 AMENDED LAW

(Adopted 30/8/13 – Effective May 2014)

TRADEMARK LAW (2001) AMENDED LAW（AUGUST 30, 2013） Chapter I General Provisions Article 1 Chapter I General Provisions Article 1 Untouched This Law is enacted for the purpose of reinforcing the administration of This Law is enacted for the purpose of reinforcing the administration of trademarks, protecting the exclusive rights to use registered trademarks, and trademarks, protecting the exclusive rights to use registered trademarks, and encouraging manufacturers and sellers to ensure the quality of their goods and encouraging manufacturers and sellers to ensure the quality of their goods and services and to keep the prestige of their trademarks, with a view to protecting services and to keep the prestige of their trademarks, with a view to protecting the legitimate interests of consumers, manufacturers and sellers and to the legitimate interests of consumers, manufacturers and sellers and to promoting the development of the socialist market economy. promoting the development of the socialist market economy. Article 2 Article 2 Untouched The Trademark Office of the administrative department for industry and The Trademark Office of the administrative department for industry and commerce under the State Council shall be responsible for the registration and commerce under the State Council shall be responsible for the registration and administration of trademarks throughout the country. administration of trademarks throughout the country. The Trademark Review and Adjudication Board, established under the The Trademark Review and Adjudication Board, established under the administrative department for industry and commerce under the State Council, administrative department for industry and commerce under the State Council, shall be responsible for handling trademark disputes. shall be responsible for handling trademark disputes. Article 3 Article 3 Untouched A registered trademark means a trademark, inclusive of a goods A registered trademark means a trademark, inclusive of a goods trademark, trademark, a service mark, a collective mark or a certification mark, that has a service mark, a collective mark or a certification mark, that has been approved been approved and registered by the Trademark Office. The trademark and registered by the Trademark Office. The trademark registrant shall enjoy an registrant shall enjoy an exclusive right to use the trademark, which shall be exclusive right to use the trademark, which shall be protected by law. protected by law.

For the purpose of this Law the expression “collective mark” shall mean For the purpose of this Law the expression “collective mark” shall mean any mark registered in the name of an entity, association or other organization any mark registered in the name of an entity, association or other organization for being used by the members of this organization in their commercial for being used by the members of this organization in their commercial activities to indicate the users’ qualifications in this organization. activities to indicate the users’ qualifications in this organization.

For the purpose of this Law the expression “certification mark” shall mean For the purpose of this Law the expression “certification mark” shall mean any mark controlled by an organization in charge of the supervision over certain any mark controlled by an organization in charge of the supervision over goods or service and used by the entity or individual outside this organization in certain goods or service and used by the entity or individual outside this respect of its goods or service to certify the origin, raw material, manufacturing organization in respect of its goods or service to certify the origin, raw material, method, quality or other specific qualities of said goods or service. manufacturing method, quality or other specific qualities of said goods or Special rules for the registration and administration of collective marks and service.

certification marks shall be formulated by the administrative department for Special rules for the registration and administration of collective marks industry and commerce under the State Council. and certification marks shall be formulated by the administrative department for industry and commerce under the State Council.

Article 4

Article 4 Revised

Where any natural person, legal person or other organization intends to Where any natural person, legal person or other organization, in the acquire the exclusive right to use a trademark for the goods he or it produces, course of his or its production or business operations, intends to acquire the manufactures, processes, selects or markets, an application should be filed with exclusive right to use a trademark for his or its goods or services, an the Trademark Office for registration of the goods trademark. application should be filed with the Trademark Office for registration of the goods trademark. Where any natural person, legal person or other organization intends to acquire the exclusive right to use a service mark for the service he or it The provisions made in this Law concerning goods trademarks shall apply provides, an application should be filed with the Trademark Office for to service marks. registration of the service mark. The provisions made in this Law concerning goods trademarks shall apply to service marks. Article 5 Article 5 Untouched Two or more natural persons, legal persons or other organizations may Two or more natural persons, legal persons or other organizations may jointly file an application with the Trademark Office for registration of a jointly file an application with the Trademark Office for registration of a trademark and shall jointly enjoy the exclusive right to use this registered trademark and shall jointly enjoy the exclusive right to use this registered trademark. trademark. Article 6 Article 6 Revised As for any of such goods, as prescribed by the State, that must bear a As for any of such goods, as prescribed by the laws or administrative registered trademark, a trademark registration must be applied for. Where no regulations that must bear a registered trademark, a trademark registration must trademark registration has been granted, such goods shall not be sold on the be applied for. Where no trademark registration has been granted, such goods market. shall not be sold on the market. Article 4 of Implementing Regulation of Trademark Law（2002） For the purposes of Article 6 of the Trademark Law, goods that must bear registered trademarks as required by the State refer to goods that must bear registered trademarks as required by laws or administrative regulations. Article 7 Article 7 Revised Any user of a trademark shall be responsible for the quality of the goods in The application for registration and the use of a trademark shall be respect of which the trademark is used. The administrative departments for made in good faith. industry and commerce at different levels shall, through the administration of Any user of a trademark shall be responsible for the quality of the goods in trademarks, exercise supervision over the quality of the goods and shall stop respect of which the trademark is used. The administrative departments for any practice that deceives consumers. industry and commerce at different levels shall, through the administration of trademarks, exercise supervision over the quality of the goods and shall stop any practice that deceives consumers. Article 8 Article 8 Revised Any visual mark, consisting of words, devices, letters, numbers, three-Any visual mark, consisting of words, devices, letters, numbers, three-dimensional marks, combined colors, or the combination of said factors, that dimensional marks, combined colors, sounds, etc, or the combination of said can distinguish the goods of a natural person, legal person or other organization factors, that can distinguish the goods of a natural person, legal person or other from those goods of others, can be applied as a trademark for registration. organization from those goods of others, can be applied as a trademark for registration.

Article 9 Any trademark applied for registration shall be so distinctive as to be Article 9 Untouched Any trademark applied for registration shall be so distinctive as to be distinguishable and shall not be in conflict with other person’s prior-acquired distinguishable and shall not be in conflict with other person’s prior-acquired legitimate rights. legitimate rights. The trademark registrant shall have the right to mark the indication “Registered Trademark” or a sign of trademark registration. The trademark registrant shall have the right to mark the indication “Registered Trademark” or a sign of trademark registration. Article 10 Article 10 Revised The following signs shall not be used as a trademark: The following signs shall not be used as a trademark:

(1) those identical with or similar to the State name, national flag, (1) those identical with or similar to the State name, national flag, national emblem, national anthem, military flag, military emblem, military national emblem, military flag or medals of the People’s Republic of China, and those identical with the name of the specific place where the central song, or medals etc, of the People’s Republic of China, and those identical with organizations of the State or the Party are located or the name, device of any the name or the symbol of the central organizations of the State or the symbolic building of the place; Party, as well as the name of the specific place where the central organizations of the State or the Party are located or the name, device of any symbolic (2) those identical with or similar to the State name, national flag, building of the place; national emblem or military flag of any foreign countries, except those approved by the government of the country concerned; (2) those identical with or similar to the State name, national flag, national emblem or military flag, etc, of any foreign countries, except those approved by (3) those identical with or similar to the name, flag or emblem of any the government of the country concerned; international intergovernmental organization, except those approved by the international intergovernmental organization concerned or unlikely to mislead (3) those identical with or similar to the name, flag or emblem etc, of any the public; international intergovernmental organization, except those approved by the international intergovernmental organization concerned or unlikely to mislead (4) those identical with or similar to the official sign or inspection mark the public; indicating control and guarantee, except those with official authorization;

(4) those identical with or similar to the official sign or inspection mark (5) those identical with or similar to the symbols, or names, of the Red indicating control and guarantee, except those with official authorization; Cross or the Red Crescent;

(5) those identical with or similar to the symbols, or names, of the Red (6) those having the nature of discrimination against any nationality; Cross or the Red Crescent;

(7) those having the nature of exaggeration and fraud in advertising (6) those having the nature of discrimination against any nationality; goods; and

(7) those deceptive, which are likely to mislead the public to

(8) those detrimental to socialist morals or customs, or having other misidentify the quality or other characteristics or place of origin of the unhealthy influences. goods; and

The geographical names as the administrative divisions at or above the (8) those detrimental to socialist morals or customs, or having other county level and the foreign geographical names well-known to the public shall unhealthy influences. not be used as trademarks, but those geographical names having otherwise meanings or serving as component part of a collective mark or certification The geographical names as the administrative divisions at or above the mark shall be exclusive. Where a trademark using any of the above-mentioned county level and the foreign geographical names well-known to the public shall geographical names has been approved and registered, it shall continue to be not be used as trademarks, but those geographical names having otherwise valid. meanings or serving as component part of a collective mark or certification mark shall be exclusive. Where a trademark using any of the above-mentioned geographical names has been approved and registered, it shall continue to be valid.

Article 11 Any of the following marks shall not be registered as a trademark: Article 11 Revised Any of the following marks shall not be registered as a trademark: (1) those only having the generic names, designs or models of the goods (1) those only having the generic names, designs or models of the goods in respect of which the trademark is used; in respect of which the trademark is used; (2) those only having direct reference to the quality, main raw materials, (2) those only having direct reference to the quality, main raw materials, function, use, weight, quantity or other features of the goods in respect of function, use, weight, quantity or other features of the goods in respect of which which the trademark is used; the trademark is used; (3) those lacking in distinctive features. (3) others lacking in distinctive features. Any of those marks mentioned in the preceding paragraphs can be Any of those marks mentioned in the preceding paragraphs can be registered as a trademark only after it has acquired distinctive features in registered as a trademark only after it has acquired distinctive features in practical use and become distinguishable. practical use and become distinguishable. Article 12 Article 12 Untouched Those devices in the shape originating from the nature of the goods, Those devices in the shape originating from the nature of the goods, existing for achieving technical effect of the goods or enabling the goods to existing for achieving technical effect of the goods or enabling the goods to keep substantive value shall not be registered as three-dimensional trademarks. keep substantive value shall not be registered as three-dimensional trademarks. Article 13 Article 13 Revised Where a trademark applied for registration in respect of identical or Where the owner of a trademark that is known by the relevant public similar goods is a duplication, imitation or translation of other person’s well-believes that his right is being infringed, he may request the protection of the well-known trademark in accordance with the provisions of this law. known trademark which has not been registered in China and the applied trademark is likely to cause confusion, it shall not be allowed for registration Where a trademark applied for registration in respect of identical or similar and shall be forbidden from practical use. goods is a duplication, imitation or translation of other person’s well-known Where a trademark applied for registration in respect of different goods is trademark which has not been registered in China and the applied trademark is likely to cause confusion, it shall not be allowed for registration and shall be a duplication, imitation or translation of other person’s well-known trademark forbidden from practical use. which has been registered in China and the applied trademark is likely to mislead the public and bring harms to the interests of the registrant of the well-Where a trademark applied for registration in respect of different goods is a known trademark, it shall not be allowed for registration and shall be forbidden duplication, imitation or translation of other person’s well-known trademark from practical use. which has been registered in China and the applied trademark is likely to mislead the public and bring harms to the interests of the registrant of the well-known trademark, it shall not be allowed for registration and shall be forbidden from practical use. Article 14 Article 14 Revised The following factors shall be taken into account in the identification of a A well-known trademark shall be recognized at the request of the

party concerned in a trademark-related case where the recognition well-known trademark: (1) Extent of the relevant public’s awareness of the decision is a necessary fact of the case. The following factors shall be taken target trademark; (2) Duration of the use of the target trademark; (3) into account in the identification of a well-known trademark:

Duration, extent and geographical scope of any publicizing work for the target trademark; (1) Extent of the relevant public’s awareness of the target trademark; (4) Protection records of the target trademark as a well-known trademark; and

(5) Other factors concerning the popularity of the target trademark.

(2) Duration of the use of the target trademark;

(3) Duration, extent and geographical scope of any publicizing work for the target trademark;

(4) Protection records of the target trademark as a well-known trademark; and

(5) Other factors concerning the popularity of the target trademark. The Trademark Office, upon the request of the party concerned as per the prescription of Article 13 of this Law, may recognize the well-known trademark status in the following situation when it deems such recognition is a necessary fact to the case during the trademark registration examination procedure; or when the administrative department for industry and commerce is investigating and applying a penalty to the trademark-related offence.

The Trademark Review and Adjudication Board, when handling the trademark disputes, upon the request of the party concerned as per the prescription of Article 13 of this Law, may recognize the well-known trademark status when it deems such recognition is a necessary fact to the case.

The people’s courts designated by the Supreme People’s Court, upon the request of the party concerned as per the prescription of Article 13 of this Law, may recognize the well-known trademark status during a trademark civil or administrative litigation when it deems such recognition is a necessary fact to the case.

The manufacturer or operator is not allowed to use the “Well-known Trademark” expression on the commodities, the commodity packages, the containers, or in advertisement, exhibition or other commercial activities.

Article 15 Article 15 Revised Where the agent or representative of the owner of a trademark applies for Where the agent or representative of the owner of a trademark applies for registering the trademark in his own name without authorization and the owner registering the trademark in his own name without authorization and the owner of the trademark has raised an opposition against the same, such a trademark of the trademark has raised an opposition against the same, such a trademark shall not be allowed for registration and shall be forbidden from practical use. shall not be allowed for registration and shall be forbidden from practical use. Where a trademark applied for registration is identical with or similar to another person’s prior used but yet unregistered trademark, in respect of same or similar goods, and the applicant has contractual or business contacts, or other relations other than those prescribed by the preceding paragraph, with the prior trademark user so that the applicant definitely knows the existence of this person’s trademark, if this person files an opposition, the applied trademark shall not be registered. Article 16 Article 16 Untouched Where a trademark has a geographical sign of the designated goods which Where a trademark has a geographical sign of the designated goods which do not originate from the place where the geographical sign indicates and is do not originate from the place where the geographical sign indicates and is likely to mislead the public, such a trademark shall not be allowed for likely to mislead the public, such a trademark shall not be allowed for registration and shall be forbidden from practical use. However, where such a registration and shall be forbidden from practical use. However, where such a trademark has been approved and registered out of goodwill, it shall continue to trademark has been approved and registered out of goodwill, it shall continue to be valid. be valid. The geographical sign mentioned in the preceding article refers to the The geographical sign mentioned in the preceding article refers to the specific sign indicating the origin, specific quality, prestige or other features of specific sign indicating the origin, specific quality, prestige or other features of the designated goods and mainly decided by the natural factors or humanistic the designated goods and mainly decided by the natural factors or humanistic factors of the district. factors of the district. Part of Article 6 of Implementing Regulation of Trademark Law（2002） The geographical signs prescribed in Article 16 of the Trademark Law can be applied for registration as certification marks or collective marks according to the provisions of the Trademark Law and these Implementing Regulations. Article 17 Article 17 Untouched Where any foreign citizen or enterprise applies for registration of a Where any foreign citizen or enterprise applies for registration of a trademark in China, the application shall be handled in accordance with any trademark in China, the application shall be handled in accordance with any agreement concluded between the country to which the applicant belongs and agreement concluded between the country to which the applicant belongs and the People’s Republic of China, or any international treaty to which both the People’s Republic of China, or any international treaty to which both countries are members, or on the basis of the principle of reciprocity. countries are members, or on the basis of the principle of reciprocity. Article 12 of Implementing Regulation of Trademark Law（2002） Trademark applications for international registration shall be handled in accordance with the relevant international treaty of which China is a member. Specific procedures shall be formulated by the administrative department for industry and commerce under the State Council. Article 18 Article 18 Revised Where any foreign citizen or enterprise applies for registration of a The application for trademark registration or other trademark trademark or has other trademark matters to attend to in China, he or it shall related matters may be handled by the applicant by himself, or through a entrust a State-designated trademark agency with qualifications for foreign-trademark agency established by law. related trademark affairs to act on his or its behalf. Where any foreign citizen or enterprise applies for registration of a trademark or has other trademark matters to attend to in China, he or it shall entrust a State-designated trademark agency with qualifications for foreign-related trademark affairs established by law to act on his or its behalf. Article 19, newly added in this version Trademark agency shall act in good faith and abide by relevant laws and administrative regulations. Trademark agency shall handle the application for trademark registration and other trademark related matters as per the clients’ requests. Trademark agency is obligated to keep the confidentiality of the client’s business secrets whichever it comprehends during the process of representation. Trademark agency is obligated to advise its client wherever his applied trademark may fall under one of the non-registrable circumstances, as prescribed by this Law. Trademark agency is forbidden to represent the client where it knows or should know the trademark to be filed for registration by such client falls under the circumstances prescribed in Article 15 or Article 32 of this Law. Trademark agency is forbidden to file in its own name the application for registration of trademarks on anything else other than its services rendered. Article 20, newly added The industry association of trademark agency shall rigorously carry out the requirement for membership enrollment and take disciplinary action against those members in violation of the code of ethics in compliance with the association regulations. The industry association of trademark agency shall announce to the public the members enrolled and those disciplined in time. Article 12 of Implementing Regulation of Trademark Law（2002） Article 21 Trademark applications for international registration shall follow the rules established by the relevant international treaty concluded or acceded to by the Trademark applications for international registration shall be handled in People’s Republic of China. Specific procedures shall be formulated by the accordance with the relevant international treaty of which China is a member. Specific procedures shall be formulated by the administrative department for administrative department for industry and commerce under the State Council. industry and commerce under the State Council. Chapter II Application for Trademark Registration Article 19 Chapter II Application for Trademark Registration Article 22 Revised An applicant for the registration of a trademark shall, in a form, indicate, An applicant for the registration of a trademark shall, in a form, indicate, in in accordance with the prescribed classification of goods, the class of the goods accordance with the prescribed classification of goods, the class of the goods and the designation of the goods in respect of which the trademark is to be and the designation of the goods in respect of which the trademark is to be used. used. An applicant for the registration of a trademark may file one application for the same trademark covering goods in several classes. Article 20 The documents pertaining to an application for trademark registration and so forth may be submitted in writing or in data message. Where any trademark applicant intends to apply for registration of a trademark in respect of goods in different classes, an application for registration shall be filed in respect of each class of the prescribed classification of goods. Article 21 Article 23 Revised

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