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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
by GUO Shoukang and Anna M. HAN
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China was among the first countries to use trademarks. In commodity exchanges, markings on goods existed more than two thousand years ago. From unearthed artifacts, marks such as gong and yesihi have been discovered carved on copper plates from the period of the Warring States (475 – 221 B.C.). At that time, marks were often used on tools and utensils to indicate their makers.
In the Northern Zhou dynasty (557 – 581 A.D.), pottery carved with the name of its maker, Guoyeni, was produced and artifacts have been unearthed by archaeologists. In the Tang dynasty (618 – 907 A.D.), handmade paper was usually produced and sold with a watermark. By the period of Northern Song dynasty (960 – 1127 A.D.), there were already products bearing trademarks containing both designs and Chinese characters. Copper plates engraved with a white rabbit and the Chinese words evoking the rabbit as a mark, and produced by Liu’s Needle Workshop of Jinani, are kept at the Museum of Chinese History, located at Tiananmen Square in Beijing.
Much litigation relating to trademarks may be found in county annals from the Ming dynasty (1368 – 1644 A.D.) and the Qing dynasty (1644 – 1911 A.D.). A well-known case of trademark infringement, described in the Changzhou county annals, occurred in 1736. The infringer Huang Yiolong, a cloth merchant, was banned for life as a result of his counterfeiting. In 1825, during the reign of Emperor Daoguang, the Qizaotang Drapers Society of Shanghai established a list of marks. In order to avoid confusion between two or more Chinese character trademarks, the first and second characters or the second and third characters could not be the same; nor could any two consecutive characters have the same or similar pronunciation.
After the Opium War in 1840, a series of unequal treaties was concluded between the Qing Government and many governments of Western countries. Usually, there were articles providing protection for trademarks, such as article 7 of the Sino-British Commercial Treaty (revised in 1902), article 9 of the Sino-U.S. Commercial Treaty (1902) and article 3 of the Sino- Japan Commercial Treaty.
In 1903, the Qing Government established a Ministry of Commerce and a Trademarks Registry.
In 1904, the trial regulations on trademark registration, prepared by an Englishman, the then Director-General of Chinese Customs, were promulgated, though never put into effect because of strong opposition from Western States.1 The regulations provided a registration system for trademarks. Article 20 of the regulations stipulated a system of consular jurisdiction.
After the 1911 Revolution, the Northern Warlord Government promulgated a Trademark Law on May 3, 1923, which contained 44 articles. Its Implementation Regulations, were published on May 8, 1923.2 The Trademark Office under the Ministry of Industry and Commerce was responsible for dealing with applications for trademark registration. The term of trademarks was set at 20 years with the possibility of an unlimited number of renewals, each for a maximum of 20 years.
On May 6, 1930, the Guomindang government promulgated a trademark law that entered into force on January 1, 1931. The law was revised on November 23, 1935. The Ministry of Industry published Implementation Regulations on December 30, 1930 and they entered into force on January 1, 1931.3 The term of trademarks remained 20 years with each renewal also of 20 years. The law stipulated the principle of first use. All laws adopted by the Guomindang government were abolished on the mainland after the founding of the PRC.
Before the founding of the PRC, many liberated areas under the leadership of the Communist Party promulgated their own regulations for the protection of trademarks.4
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Since the founding of the PRC, three laws and regulations with respect to the registration of trademarks have been promulgated:
Under the Trademark Regulations of 1963, which supplanted the Provisional Trademark Regulation of 1950, every trademark used by an enterprise was to be filed for registration but the registrants obtained no exclusive rights. Thus trademarks became a means of administrative control.
During the Cultural Revolution (1966-76), almost all trademarks were cancelled for containing meanings associated with feudalism, capitalism or revisionism. The exceptions were trademarks with revolutionary connotations, such as Red Flag, Workers, Peasants and Soldiers and so on. Even the Trademark Office was abolished and its seal was transferred to the China Council for the Promotion of International Trade (CCPIT) for management of trademarks owned by foreigners.
With the end of the Cultural Revolution, the Trademark Office was re-established. In accordance with the new policies of reform and openness, the Trademark Office was entrusted with the preparation of a new trademark law.6 Though its drafting began after that of the Patent Law, it was approved earlier. This occurred because there was no strong opposition to its adoption.
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The existing Constitution provides that China is to build a socialist market economy. The principles of a socialist market economy guide the content and development of Chinese trademark law. Legal protection for trademarks promotes the development of the socialist market economy. While the Constitution thus does not contain explicit protection for trademarks, it does provide a basis for trademark law in China.
China has acceded to:
The Trademark Law of August 23, 1982 as amended on February 22, 1993 was once again amended on October 27, 2001 to comply with the provisions of the GATT and the TRIPs. Specifically, the new Trademark Law expands the categories of symbols that can be registered as trademarks and protects certification marks and collective marks. The Trademark Law also expands protection for well-known marks, an important change for foreign mark owners. Other significant improvements include the provision of statutory damages, the availability of injunctive relief and judicial review for all administrative decisions.
The first Trademark Implementation Rules were approved by the State Council and entered into effect on March 10, 1983 and they were revised on January 3, 1988 and on July 15, 1993.
The revision of the Trademark Law also triggered a major revision of the Implementation Rules. The Implementation Regulations, promulgated by the State Council on August 3, 2002, replaced the Implementation Rules as of September 15, 2002.7
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Article 96 of the General Principles of Civil Law provides that the exclusive rights to use trademarks obtained by legal persons, individual industrialists and business persons, and individual partnerships, are protected by law. Article 118 provides that, when a trademark is violated, its owner has the right to demand cessation of the infringement, elimination of its effects and compensation for losses suffered.
The Criminal Law includes several infractions involving trademarks that may result in jail sentences of up to seven years in especially serious cases:
When crimes against trademark interests are committed by units and legal persons, the individuals responsible in fact for the infringements are subject to prosecution.12
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The Trademark Law defines a trademark as “any visual sign capable of distinguishing the goods or services of a natural person, legal entity or other organization from that of others, including any word, design, letters of an alphabet, numerals, three-dimensional symbols, combinations of colors, and their combinations”.13 This is generally consistent with the definition in article 15 of the TRIPs Agreement. Other signs that may serve as trademarks in some foreign countries, such as scents or sounds, may not be trademarked in China.
Under Chinese Trademark Law, there are several categories of marks.
Marks used on goods are called trademarks, whereas marks used in connection with services are called service marks. The Trademark Law also governs the registration of collective marks and certification marks. The Trademark Law uses the word “trademark” (shang biao) as a common denominator for all the varieties of marks. This practice is generally retained below, though we occasionally use the word product to include both goods and services.
The Trademark Law stipulates that any natural persons, legal persons or other organizations intending to acquire the exclusive right to use a trademark on goods or a service mark for the services provided, must file an application for the registration of the mark with the Trademark Office. The provisions of the Trademark Law relating to goods also apply to services.
Collective marks and certification marks are also protected by law when they are registered.14 A collective mark refers to symbols that are registered in the name of groups, associations or other organizations for the use of the members of this group, in their commercial activities to indicate membership.
A collective mark may be owned by, but may not be used by, an association; only the members of the association may use it. Typically, the association is founded in order to ensure compliance by its members with certain quality standards. The members may use the collective mark if they comply with the requirements defined in the regulations concerning its use. Thus, the function of the collective mark is to inform the public about certain particular features of the product for which the collective mark is used. An enterprise entitled to use the collective mark may use its own trademark in conjunction with the collective mark. 15
Certification marks refer to symbols under the supervision of organizations capable of testing and monitoring certain goods or services, but such marks are used by others on their goods or services for the purpose of certifying the place of origin, the raw materials used, the manufacturing process, the quality, the accuracy or other specified characteristics of the goods or services.16
The procedures for registration and administration of certification marks were drawn up by the SAIC, in co-operation with the competent departments of the State Council. Certification marks may only be used in accordance with the defined standards and only members of an association may use its collective trademarks.17
An important requirement for the registration of certification marks is that the entity applying for registration must be competent to certify the products concerned. Thus, the owner of a certification mark must be an authorized representative for the products to which the certification mark is intended to apply. This is an important safeguard for the protection of the public against misleading practices.18
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Well-known trademarks are protected under the Trademark Law based on:
Some trademarks, such as Coca Cola for beverages, Toshiba and Philips for electrical appliances, IBM for computers, Adidas and Levi’s for clothing, Mars for candies, Mobil for oil and Nike for shoes have been recognized as well known in China.
An attempt to register a mark which copies, imitates, or is a translation of, a wellknown mark for identical or similar products will be rejected. Similarly, even if the registration is not for an identical product, the application for registration may be rejected if there is the possibility that the public will be misled and that harm may be caused to the owner of the well-known mark.20
Under article 9 of the Law, trademarks must be distinctive.
In order to be distinctive, the word, symbol or their combination must be easily recognizable as a mark that is different from the product. Under the Chinese Trademark law, a word or symbol relating to a name or symbol that is generic with respect to the goods identified, or that makes a direct reference to the quality, main raw materials, function, use, weight, quantity or other features of the goods identified by the trademark, may not be used as a trademark.21
In article 10 of the Trademark Law, it is expressly provided that the following words or expressions may not be used as trademarks:
Geographical names referring to administrative divisions at or above the county level and well known foreign geographical names may not be used as trademarks. Those that have been given second meanings may give rise to exclusive rights. Geographical names already registered at the time of adoption of the Law were grandfathered; this is for instance the case for the Tsingdao beer trademark.
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Other than well-known marks, only registered trademarks or service marks are protected by the law, that is, only the owners of registered marks or their licensees enjoy the right to use such trademarks or service marks.
Filing an application for registration is the first requirement for obtaining the exclusive right to use a trademark.
Any natural person, legal person or other organization may apply to register a trademark.
Foreigners or foreign enterprises register marks in accordance with any treaty between their home country and China (either bilateral or multilateral) or in accordance with the principle of reciprocity; foreign applicants are required to appoint qualified trademark agents.
Applications for the registration of trademarks should indicate, in accordance with the prescribed classifications, the class and the designation of the goods in respect of which the trademark is intended to be used.
Where a registered trademark is intended to be used with respect to different goods of the same class or where any word or figure of a registered trademark is to be altered, a separate application for registration must be filed.
The date of filing is the date on which the application is deemed to have been received by the Trademark Office.22 This date is important for obtaining the exclusive rights and gives rise to the right of priority.
Domestic applications to register a trademark are submitted directly to the SAIC at or above the county level of the domicile of the applicant. After an initial review, the application is transmitted to the Trademark Office or is filed through an agent approved by the SAIC.23
Foreigners and foreign enterprises intending to register a trademark in China must appoint a representative approved by the SAIC.24 Applications for international registration must comply with the Madrid Agreement.
Applications for trademark registration are examined before approval. The examiners take account of the classification of the goods and the temporal order of applications. The process is divided into two stages: examination as to form and examination as to substance.
Examination as to form determines whether the application complies with all the formal requirements prescribed in the laws and regulations. The formal requirements include the identification of the applicant, a reproduction of the trademark, a list of products in connection with which the trademark is to be used, the required fee and required certificates, if any.
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Review as to substance determines whether the mark is a symbol that fulfils all the conditions for registration and whether it conflicts with prior rights.
The Trademark Office examines whether the trademark is distinctive and whether it is misleading or contrary to public order or morality. If a trademark for which registration has been sought falls in any of the classes prohibited under article 10 of the Trademark Law commented on above, the application is rejected.
The Trademark Office first examines whether the two trademarks are identical with respect to the same goods and, secondly, examines whether the two trademarks are similar with respect to the same goods, whether the two trademarks are identical with respect to similar goods, and whether the two trademarks are similar in respect of similar goods. In the examination of trademarks, the determinations of trademark similarity and goods similarity are interrelated.
Where a trademark for which registration has been sought is found to be in conformity with the relevant provisions of the Trademark Law, the Trademark Office grants a preliminary approval and publishes it in the Trademark Gazette.
If two or more applicants apply to register identical or similar trademarks for the same or similar goods, preliminary approval is given to the trademark which was filed first. Where applications are filed on the same day, preliminary approval is given to the trademark that was used first.25
Within three months from the date of the publication, anyone may file an objection to the trademark. If an objection is filed, the Trademark Office sends a copy thereof to the applicant for response. It then adjudicates on the basis of the facts and grounds stated by both parties. The decision is communicated to the parties. A party dissatisfied with the ruling of the Trademark Office may, within 30 days, initiate an appeal before the people’s courts.
Where the trademark for which registration has been sought is not in conformity with the relevant provisions of the Trademark Law, or where it is identical with or similar to the trademark of another person which, with respect to the same or similar goods, has been registered or which, after examination, has been given preliminary approval, the Trademark Office must reject the application.26
Where they are not satisfied with the decision of the Trademark Office, any party with an interest may, within 15 days from receipt of notice, apply to the Trademark Review and Adjudication Board for reconsideration. A party dissatisfied with the Board’s decision may, within 30 days, appeal the review to the people’s court; otherwise, the decision of the Trademark Review and Adjudication Board enters into effect.27
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Where no objection to the preliminary approval and publication is filed or where, after its examination, any objections are found to be unjustified, the Trademark Office approves the registration. This means that the information contained in the application is recorded in the Trademark Register kept by the Office. Each registration is given a number and is dated.
Anyone may consult the Trademark Register in order to obtain information about registered trademarks.
After registration, the Trademark Office issues to the registrant a Certificate of Trademark Registration and gives public notice of the relevant matters in the Trademark Gazette.
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Once registration is granted, the registrant enjoys all the rights of ownership, in particular, the exclusive rights to use and to transfer the trademark. A trademark owner is entitled to transfer its trademark by succession, merger, assignment or licensing. Under an exclusive license agreement only the licensee has the right to use the trademark. However, the trademark owner retains ownership, while temporarily foregoing the exclusivity of its use.
Trademarks may be transferred by operation of law or by assignment. An example of the former case would be a trademark transfer to heirs of the registrant or to an enterprise into which the trademark owner is merged. As an example of the latter, a registered trademark may be assigned by contract.
Contractual assignments include two different situations: assignments of trademarks within the enterprise to which the trademark relates and assignments of trademarks outside the enterprise to which it relates. According to the Trademark Implementation Regulations, when approval is sought for an assignment of a trademark registration, the registrant must simultaneously assign all his other registered trademarks that are identical with or similar to the said registered trademark with respect to the same or similar products. If two enterprises use identical or similar trademarks on the same or similar products, the public may be misled because a trademark is issued to identify the source of the manufacturer.
When a registered trademark is assigned, the assignor and assignee jointly file an application with the Trademark Office.28 Similarly, the assignor has the obligation to monitor the quality of the goods being produced with the assigned trademark.29
Trademarks indicate the origin of the goods to which they are affixed. However, trademark licensing is permitted and is of great practical importance, especially in developing countries, as a means of facilitating the transfer of technology and commercial know-how. Thus trademarks may be licensed under conditions that are designed to preserve their origin, to provide guarantees of quality and to prevent deception of the public.
The Trademark Law provides that all trademark registrants may authorize other parties to use their registered trademarks.30 The licensee must be an entity or person entitled to apply for registration of a trademark in China. A signed transfer agreement must be concluded and submitted to the Trademark Office for registration. The licensor (the registrant) must supervise the quality of the goods or services on which the licensee uses the registered mark, and the licensee must guarantee the quality of the goods or services with respect to which the registered mark is used.
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Where the trademark is approved and registered by the Trademark Office, the registrant is granted an exclusive right to its use.31
The exclusive right to use a registered trademark is limited to the trademark that has been approved for registration and to the goods in respect of which its use has been approved.32 A trademark approved for registration is one that has been submitted to the Trademark Office for registration and publication in the Trademark Gazette. The goods in respect of which the use of the trademark has been approved are those goods that are listed in the registration application and published in the Trademark Gazette. If a party using the mark alters a registered trademark, changes the name, address or other registered information, assigns it without approval or fails to use the mark for three consecutive years, the registration may be cancelled. When a registrant is informed of a deficiency and does not rectify it in a timely manner, the registration of the trademark may be cancelled and the mark struck from the Register. If products bearing a registered mark are poorly manufactured or defraud consumers, the mark may be cancelled if the problem is not rectified in a timely manner.33
No one other than the registrant may use the registered trademark for commercial purposes unless prior authorization of the registrant is obtained. It is generally accepted that use for commercial purposes means reproducing the trademark on products or in advertising, as well as the sale, and offering for sale and importation of products bearing trademark.
5.5.1. Period of validity and renewal
The term of a registered trademark is ten years commencing on the date of approval of the registration.34
Where the registrant intends to continue to use the registered trademark beyond the expiration of the period of validity, an application for renewal of the registration must be made at least six months prior to the said expiration. Where no such application is filed within the said period, an extension of six months may be allowed. If no application is filed by the expiration of the extension, the registered trademark will be cancelled. The period of validity of each renewal is ten years. All approved renewals are published by the Trademark Office.35 There is no limit to the number of renewals.
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5.5.2. Termination
In addition to the situation where a registration expires due to non-renewal, there exist other situations where the registration is cancelled before the expiration of its term:
Any party dissatisfied with the decision of the Trademark Office to cancel a registered trademark may apply to the Trademark Review and Adjudication Board within 15 days from receipt of the notification.
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The protection of the exclusive right to use a trademark is the core of trademark law as well as of the administration of trademarks. The exclusive right to use a trademark is limited to trademarks approved for registration and to the products with respect to which the use of the trademark has been approved.
Article 52 of the Trademark Law defines the following acts as infringements:
The Supreme Court has rendered an interpretation of the process of evaluation of identity and similarity.39
Similar goods mean those that share similarities in function, usage, manufacturing entities and targeted consumers, or goods that cause the relevant public to believe in the existence of a special relationship or that are likely to cause confusion. Similar services refer to services that share similarities in purpose, method and targeted consumers and those that cause the relevant public to believe the existence of a special relationship or that are likely to cause confusion. Goods may be similar to services, when there exists a special relationship between the goods and services and there is a likelihood of confusion among the relevant public.
The Trademark Implementation Regulations provide that the following acts constitute infringements of the exclusive right to use a registered trademark:
Such infringements may give rise to fine of up to three times the amount of illegal profits or RMB 100,000 if the revenue cannot be determined.
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The Supreme Court has stated that violations of article 52 of the Trademark Law include:
If a party has committed any such acts, an infringement exists, regardless of the intention of the infringer and of the existence of any damage to the trademark owner. Nor does the existence of an infringement depend on whether the goods bearing the litigious trademark are of good or bad quality.
In the event of infringement of trademarks, the wronged party may pursue administrative or civil recourses. In serious cases, the procuratorate may be seized and criminal investigations may be launched.
Once the SAIC has imposed administrative sanctions, no claims on the same basis may be brought before the people’s courts.40
6.2.1. Administrative recourses
In cases of infringement, any party may inform the SAIC, which may:
The SAIC has the right to investigate reports of infringement and impose penalties. Where acts are suspected of involving crimes, they should be reported to the judicial authorities. The powers given to the administrative authorities are broad. They include the power to question related parties, read copies of contracts and invoices, conduct on-site inspections of the premises where infringements may be occurring and to inspect and seize articles that may be involved in infringing another’s rights to use a mark exclusively. Additionally, where harm may be caused by infringements that may be difficult to compensate or the evidence of which may be destroyed, the registrant may apply to the people’s courts for injunctive relief or for orders for conservatory measures.
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The amount of compensation corresponds to the profit earned by the infringer during the period of infringement or the damages suffered by the trademark rights owner as a result of the infringement during the period of the infringement, including the reasonable expenses incurred to stop the infringement. Where it is difficult to determine the profits gained or the loss suffered, the court may make a determination of payment, not to exceed RMB 500,000.
Administrative fines imposed pursuant to violations of articles 45 and 48 of the Trademark Law are limited to either 20% of the illegal business revenue or twice the amount of illegal profits.
If a party is not satisfied with the administrative measures taken, it may initiate litigation within 15 days in accordance with the Law on Administrative Litigation.
6.2.2. Civil remedies
The statutory limitation period for civil infringement actions before the people’s courts to enforce the exclusive right to use registered trademarks is two years, commencing from the time when the trademark registrant or claimant knew or should have known of the infringement. Beyond two years, actions may be brought against ongoing violations to use the trademark and the people’s court may enjoin the infringement and award damages calculated over the previous two years.41
6.2.3. Criminal sanctions
Certain acts of using an identical mark on the same product may constitute a crime and as such, in addition to civil penalties to compensate the registrant, criminal penalties may be imposed. Similarly, where a mark or symbol that is part of a registered trademark is forged or manufactured without permission, or such marks or symbols are sold, criminal penalties may be imposed.
Serious cases of trademark infringement may give rise to prosecutions under articles 213, 214 and 215 of the Criminal Law entailing up to seven years’ imprisonment in especially serious cases. When crimes are committed by units and legal persons, the individuals responsible in fact for the infringements are subject to prosecution.42
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Currently, amendments to the Trademark Law are being prepared. They will primarily serve to consolidate the legal framework already in place and to clarify the enforcement powers of the administrative agencies.
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1 Selected Materials of Trademark Laws and Regulations, Compiled by the Trademark Office and the SAIC, 1985, p. 87–91.
2 Selected Materials of Trademark Laws and Regulations, Compiled by the Trademark Office and the SAIC, 1985, p.93–109.
3 Selected Materials of Trademark Laws and Regulations, Compiled by the Trademark Office and the SAIC, 1985, p.121–139, p.146–165.
4 Such as the trademarks regulations of the Liberated Area of Jiangsu and Anhui (1946), the Liberated Area of Shanxi, Hebei, Shandong, and Henan (August 23, 1946), the North China Government (June 11, 1949), the Liberated Area of Shaanxi, Gansu and Ningxia (July 10, 1949) and so on.
5 These Regulations contained 34 articles and were divided into six chapters: General rules, Application, Examination, Registration, Opposition and Supplementary provisions. A system of trademark registration was adopted. The registrant obtained the exclusive right to use the trademark for a term of 20 years. The exclusive right was renewable. Whether a trademark was to be registered or not remained at the discretion of its owner (article 2). Moreover, the principle of first to file was adopted such that when more than two applications for the same or similar trademarks were filed for the same category of commodity, the first to file prevailed (article 10). However, after completion of the socialist transformation, a Rule was adopted for generalized or compulsory registration of trademarks. Thereafter, exclusive rights were not protected.
6 Mr Guo Shoukang was involved in the process from the beginning.
7 The Reply from the State Council on Issues regarding Supporting Documentation for Trademark Registration issued on April 23, 1995 was also repealed.
8 As early as February 22, 1993 the Standing Committee of the NPC adopted rules to suppress counterfeiting of trademarks (at its 30th Session of the Seventh NPC) and they entered into effect on July 1, 1993. Maximum terms of imprisonment for infringers and sellers who know their goods bear a counterfeited registered trademark is seven years.
9 Article 213 of the Criminal Law.
10 Article 214 of the Criminal Law.
11 Article 215 of the Criminal Law.
12 Article 220 of the Criminal Law.
13 Article 8 of the Trademark Law.
14 Background Reading Material on Intellectual Property, World Intellectual Property Organization, 1988, p.146–147.
15 Background Reading Material on Intellectual Property, World Intellectual Property Organization, 1988, p.146–147.
16 Article 3 of the Trademark Law.
17 Article 3 of the Trademark Law.
18 China Law, No. 3. 1995. p.101.
19 Article 14 of the Trademark Law.
20 A Provisional Stipulation on Verification and Management of Well-known Marks, prepared by the SAIC and containing 15 articles, was published on August 14, 1996.
21 Article 11 of the Trademark Law.
22 Article 12 of the Trademark Law.
23 Article 3 of the Trademark Law.
24 Article 18 of the Trademark Law.
25 Article 29 of the Trademark Law.
26 Article 13 of the Trademark Law.
27 Article 43 of the Trademark Law.
28 Article 39 of the Trademark Law.
29 Article 40 of the Trademark Law.
30 Article 40 of the Trademark Law.
31 Article 51 of the Trademark Law.
32 Article 51 of the Trademark Law.
33 Article 45 of the Trademark Law.
34 Article 37 of the Trademark Law.
35 Article 27 of the Trademark Law.
36 Article 41 of the Trademark Law.
37 Article 41 of the Trademark Law. Presumptions of bad faith arise where the registrant alters any word, figure, or their combination, of the registered trademark without the required registration; where the registrant of a trademark changes his or its name, address or other registered matters without the required registration; where the registered trademark is assigned without the required approval; where the registered trademark has not been used for three consecutive years; where the registered trademark is used in connection with goods that have been roughly or poorly manufactured or whose superior quality has been replaced by inferior quality, so that consumers are deceived.
38 The Supreme Court has engaged in an interesting semantic exercise consisting in explaining the difference between identical and similar as follows: “The identical trademark as provided for in article 52(1) of the Trademark Law means the trademark against which infringement is alleged represents no material visual difference from the registered trademark of the plaintiff.” Similar trademarks as provided for in article 52(1) of the Trademark Law means the alleged infringing trademark, when compared with the registered trademark of the plaintiff, is similar in the form of words, phonetics, meaning or the shape of the graphics and its colour, or in the general formation resulting from the positions of the all the principal elements, or in the three-dimensional shape or the formation of colours, and is likely to cause misidentification among the general public as to the origin of the goods or misperception that the origin of the goods is specially connected to the goods represented by the registered trademark of the plaintiff ”, article 9 of the Trademark Interpretation.
39 Article 11 of the Trademark Interpretation.
40 Article 21 of the Trademark Interpretation.
41 Article 18 of the Trademark Interpretation.
42 Article 220 of the Criminal Law.