China: Specific Guidance on Protection of the Exclusive Right to Registered Trademarks Offered by the Revised Implementing Regulations of the Trademark Law

Last Updated: 17 June 2014
Article by Ding Xianjie

The State Council promulgated the revised Implementing Regulations of the Trademark Law of the People's Republic of China (Revised in 2014) (the "New Regulations") on April 29, 2014 to better coordinate the implementation of the third revision of the Trade Law of the People's Republic of China (the "Trademark Law").The New Regulations, containing 98 Articles in ten Chapters, mainly supplements and details related systems according to the modified content in the Trademark Law, adds the established practices that already existed in the works of trademark review, adjudication and management based on the practical requirement, and further clarifies issues concerning protection of the exclusive right to registered trademarks and trademark agency, etc. The New Regulations and the Trademark Law will take effect from May 1, 2014.

Compared with the Old Regulations, the New Regulations provides more instructions focused on protection of the exclusive right to registered trademarks. There are 8 Articles of Chapter 8 "Protection of the Exclusive Right to Use Registered Trademarks" of the New Regulations, corresponding to Chapter 7 of the Old Regulations, 3 more Articles are added. In fact, 3 (the fair use, the amount of the fine and the registration of the well-known trademark as an enterprise name by another person) of the 5 Articles of the Old Regulations are moved into the Trademark Law and are deleted from the New Regulations. Therefore, the number of the changed and added articles in Chapter 8 of the New Regulations is reached 6.

The article which is completely reserved in the New Regulations from the Old Regulations is Article 77 (Article 51 in the Old Regulations) "With regard to any act of infringement of an exclusive right to use a registered mark, any person may file a complaint with or report to the administrative department of industry and commerce."; Article 76 of the New Regulations only made few changes on the words partly reserved from the second Item of the 50 Article of the Old Regulations, "Act that is deemed as an infringement of the exclusive right to use a registered trademark as mentioned in Item 2 of Article 57 of the Trademark Law include using a sign identical or similar to the registered trademark owned by another person on identical or similar commodities as the name or decoration of a commodity in a way that the general public are misled."

It is worth to notice that the Article 75 of the New Regulations extends the content of the Article 50 of the Old New Regulations, which specifies that, "Circumstances of providing convenience as specified in Item 6 of Article 57 of the Trademark Law include facilitating an infringement by another person or party of an exclusive right to use a registered trademark through providing storage, transportation, posting, printing, concealment, business place, online trading platform and similar." From which, Article 75 deletes the word "intentionally" and adds providing "printing","business place"and "online trading platform" three infringement acts. The new version offers typical measures targeted on the emerging trademark infringements.

Besides, to coordinate the implementation of the Article 60 of the Trademark Law, the New Regulations lists some factors that may be taken into account when calculating the income from illegal business focused on cracking down upon trademark infringements in actual practice,

  • sales price of infringing goods;
  • marked price of infringing goods unsold;
  • average selling price of infringing goods that have been confirmed;
  • middle market price of infringed goods;
  • operating revenue received by the infringer from infringement; and
  • other factors that can help to calculate the value of infringing goods reasonably.

The directive guidance on calculating the income from illegal business provided by the New Regulations solves the former problems that lacking of reference evidence, offers practice basis on the fine during the administrative department of industry and commerce cracking trademark infringement and which also effectively combats trademark infringement.

The New Regulations also provides specific instructions on reasonable source defense, Article 79 explores the circumstances that can prove the goods are legally acquired are as follows:

  • the supply list and payment receipt with legal signature or seal of the supplier have been obtained and they have been conformed to be real or have been recognized by the supplier;
  • the purchasing contract between the supplier and the seller has been concluded and the relevant obligation has been fulfilled after confirmation;
  • the legal invoice for purchase has been received and matters recorded thereon are in consistent with the goods concerned; and
  • other circumstances that can prove the goods concerned are legally acquired.

Under the circumstance of reasonable source defense, Article 80 of the New Regulations states that the administrative department of industry and commerce will "report the case to the local administrative department of industry and commerce in the place where the provider of infringing goods is located" which is good to crack down upon trademark infringement at the source.

The New Regulations makes rules concerning the obligation of cooperation of the trademark owners during the period of handling trademark infringement cases, "In the process of investigating a trademark infringement case, the administrative department of industry and commerce may request the trademark right owner to identify whether the goods involved in the case are produced by it or produced under its authorization." This Article helps with requesting the trademark right owner to provide legal basis, solving the issues that the trademark right owner refuses to cooperate when the administrative department of industry and commerce investing infringement cases in actual practice, and cracks down upon trademark infringement with more legal support.

Regarding the suspension issue in investing trademark infringement cases, the New Regulations explores that "Where the registered trademark right involved in a case is currently trailed by the Trademark Office, Trademark Appeal Board or the people's court and the trial result may influence the nature of the case" to coordinate the implementation of Item 3 of Article 62 of the Trademark Law, which can be decided that there is a dispute over trademark right and the case investigation can be suspended. To some extent, this Article avoids the circumstance that the trademark squatters put pressure on the real owner of the trademark with the malicious cybersquatting registered trademark, and offers a solution to the problem that when an opponent brings an invalid request, the opposed party rising a litigation or complaining about trademark infringement after trademark opposition procedure or the trademark under dispute is permitted to register because of the injustice towards the opponent.

In all, the New Regulations contains many updated and targeted Articles regarding protection of the exclusive right to use registered trademarks to coordinate with the implementation of the new Trademark Law. A series of regulations on trademark indicate that China intends to strengthen its striking power against trademark infringement act and given more reasonable protection to trademark.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions