Legislation
The Trademark Law is enacted to improve the administration of trademarks, protect the exclusive right to use a trademark, and encourage producers and traders to guarantee the quality of their goods and services and maintain the reputation of their trademarks, with a view to protecting the interests of consumers, producers and traders and promoting the development of the socialist market economy.
Trademark Law & Implementing Regulations
Trademark Law: Adopted by the Standing Committee of the National People's Congress on August 23, 1982 and came into effect on March 1, 1983; amended for the first time on February22, 1993; amended for the second time on October 27, 2001; amended for the third time on August 30, 2013; amended for the fourth time on April 23, 2019 and came into effect on November 1, 2019.
Implementing Regulations: Promulgated by the State Council onAugust3, 2002; amended on April29, 2014 and came into effect on May 1, 2014.
Rules and Measures
Measures for the Administration of Trademark Printing: promulgated by the former State Administration for Industry and Commerce on September 5, 1996, first revised on December 3, 1998, second revised on August 19, 2004, and third revised and implemented on October 23, 2020;
Measures for the Registration and Administration of Collective Trademarks and Certification Trademarks: promulgated by the former State Administration for Industry and Commerce on April 17, 2003, and effective from June 1, 2003
Rules for Determination and Protection of Well-known Trademarks: promulgated by the former State Administration for Industry and Commerce on July 3, 2014, and implemented on August 3, 2014;
Standards for Judging Trademark Infringement: promulgated and implemented by the National Intellectual Property Administration ("CNIPA") on June 15, 2020;
Methods for Calculating Illegal Business Turnover in Trademark Infringement Cases: promulgated by the CNIPA and the State Administration for Market Regulation on October 14, 2024, and implemented on October 14, 2024..
Conventions
China became a member of the Convention Establishing the World Intellectual Property Organization on June 4, 1980, the Paris Convention for the Protection of Industrial Property on March 19, 1985, the Madrid Agreement Concerning the International Registration of Marks on October 4, 1989, the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks on August 9, 1994, the Protocol relating to the Madrid Agreement Concerning the International Registration of Marks on December 1, 1995 and the Marrakesh Agreement Establishing the World Trade Organization on December 11, 2001.
Trademark Administration
The Trademark Office of the China National Intellectual Property Administration (the CNIPA) is responsible for the registration and administration of trademarks in China, as well as the settlement of disputes relating to trademarks.
The CNIPA is responsible for conducting the operational guidance and policing of trademark enforcement, including formulating and guiding standards of trademark enforcement.
State Administration for Market Regulation is responsible for the organization and overall guidance of trademark enforcement.
Registered Trademark & Exclusive Right
There are four types of registered trademarks in China: trademarks for goods, service marks, collective marks and certification marks.
A registered trademark can be obtained after being approved and registered by the Trademark Office through the registration application procedures.
The rights holder of the registered mark, i.e. the registrant, have the exclusive rights to use the registered trademark as approved for the goods/services approved to register, which is protected by law.
Such exclusive rights begin on the date of approval and registration, and are valid for ten years. The trademark registration can be renewed before the expiration of the ten-year term, and each renewal registration is valid for ten years.
Trademark registration must be applied for Cigarettes, cigars, packaged tobacco, electronic cigarettes and other new tobacco products. Without the registered trademarks, such products shall not be produced or sold.
How to Obtain a Registered Trademark
Toobtaina registration of a trademark on designated goods or services and seek a protection by law, the owner of the trademark should file a registration application before the Trademark Office. After examining the application, the Trademark Office will approve the registration if it is in compliance with relevant regulations.
For the details about the filing and prosecution of and examination on the applications, please see "Outline of CN Trademark System_Basics I_Registering a Trademark".
Protection of Registered Trademarks
A trademark registrant enjoys the rights to use the registered trademark exclusively, that is, the exclusive rights for the registered trademark, which is protected by the Trademark Law.
In case of infringement on the exclusive rights, the trademark registrant or interested party may institute a lawsuit with the court, seeking judicial relief, or request the administrative authority to handle it,seeking administrative relief.
Anyone may complain or report to the administrative authority for any infringement upon the exclusive rights to a registered trademark.
This article will discuss the proceedings for administrative relief.
For seeking judicial relief, please refer to the Outline of CN Trademark System_Trademark Protection I Judicial Relief.
Scope of Exclusive Rights
The scope of the exclusive rights to a registered trademark is limited to the trademark approved for registration and the goods/services designated for use.
Infringement
Any of the following acts is infringement upon the exclusive rights to a registered trademark:
(1) Without the authorization of the trademark registrant, using a trademark identical to the registered trademark on the same goods/services;
(2) Without the authorization of the trademark registrant, using a trademark similar to the registered trademark on the same goods/services or using a trademark identical or similar to the registered trademark on similar goods/services, which is likely to cause confusion;
(3) Selling goods that infringe on the exclusive rights to a registered trademark;
(4) Counterfeiting or manufacturing signs of a registered trademark of another person without authorization, or selling such counterfeited or manufactured signs of the registered trademark;
(5) Without the authorization of the trademark registrant, replacing the registered trademark of the registrant and putting the goods with the replaced trademark back on the market;
(6) Deliberately providing facilitation for infringement conduct on the exclusive rights to another person's registered trademark and assisting others to infringe the exclusive rights to the trademark;
(7) Other conducts causing other damages to the exclusive rights to a registered trademark of another person.
Using prominently a trade name in an enterprise name, which is identical to another person's registered trademark, on the same goods or services, shall constitute trademark infringement as provided for in item (1) above;
Changing a registered trademark on one's own or using a combination of multiple registered trademarks, which is identical to another person's registered trademark for the same goods or services, shall constitute trademark infringement as provided for in item (1) above.
Using a mark identical or similar to another person's registered trademark as a commodity name or commodity decoration on the same or similar goods, thereby misleading the public, shall constitute trademark infringement as provided for in item (2) above.
Using prominently a trade name in an enterprise name, which is similar to another person's registered trademark, on the same or similar goods or services, thereby being likely to cause confusion, shall constitute trademark infringement as provided for in item (2) above;
Changing a registered trademark on one's own or using a combination of multiple registered trademarks, which is similar to another person's registered trademark for the same or similar goods or services, thereby its use being likely to cause confusion, shall constitute trademark infringement as provided for in item (2) above.
A registered trademark that does not specify a color may freely have a color attached to it. Where a color is attached for the purpose of free-riding and then the mark colored is similar to another person's registered trademark for the same or similar goods or services, the use of which is likely to cause confusion, using such mark constitutes trademark infringement as provided for in item (2) above.
Where, in business activities under a processing contract under which the contractor is responsible for providing labor and materials, the contractor uses goods that infringe upon the exclusive rights to a registered trademark, it constitutes trademark infringement as provided for in item (3) above.
Where in sales an operator gives away goods that infringe upon the exclusive rights to a registered trademark, it shall constitute trademark infringement as provided for in item (3) above.
Providing storage, transportation, mailing, printing, concealment, business premises, online commodity trading platforms and others for the purpose of infringing on the exclusive rights to another person's trademark shall be determined as providing facilitation as provided for in item (6) above.
Where market organizers, exhibition organizers, counter lessors, e-commerce platform operators and other operators fail to perform their management duties and, when they know or should have known that the operators in the market, exhibitors, counter lessees and e-commerce operators on the platform are committing trademark infringement, fail to stop such trademark infringement, or where they are unaware but still fail to take necessary measures to stop the trademark infringement after being notified by the relevant trademark enforcement authorities or the trademark rights holder with effective administrative or judicial documents, their acts shall constitute trademark infringement as provided for in item (6) above.
Registering words identical or similar to another person's registered trademark as a domain name, and conducting e-commerce transactions of related goods or services through the domain name, thereby being likely to cause the relevant public to misunderstand, shall constitute trademark infringement as provided for in item (7) above.
Where using another person's registered trademark as a trade name in an enterprise name, thereby misleading the public, and then constituting unfair competition, the rights holder may seek relief under the Anti-Unfair Competition Law of the PRC.
Determination of Infringement
In preparation of administrative complaints/reports and responses, the rights holders or other relevant parties may refer to the following factors that the administrative authorities and the courts will consider in determining trademark infringement.
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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.
