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| Laws & Regulations - Trademark |
| Provisions for Determination and Protection of Well-known Marks |
Provisions for Determination and Protection of Well-known Marks
(Promulgated by Decree No.5 of the State Administration for Industry and Commerce of the People's Republic of China on April 17, 2003, and effective as of June 1, 2003)
Article 1 These Provisions are hereby formulated in accordance with the Trademark Law of the People's Republic of China (hereinafter referred to as the Trademark Law) and the Implementing Regulations of the Trademark Law of the People's Republic of China (hereinafter referred to as the Implementing Regulations).
Article 2 A well-known mark in these Provisions refers to a mark that is widely known to the relevant sector of the public and enjoys a relatively high repute in China.
The relevant sector of the public shall include the consumers concerned with the type of goods or service to which the mark applies, other persons who manufacture such goods or provide such services, and relevant persons and sales men involved in channels of distribution of such goods or services.
Article 3 The following materials may serve as proofs of a mark being well-known:
(1) the relevant materials to prove the degree of knowledge or recognition of the mark in the relevant sector of the public;
(2) the relevant materials to prove the duration of use of said mark, including the materials relating to the history and scope of the use and registration of said mark;
(3) the relevant materials to prove the duration, extent and geographic area of any promotion of the mark, including the approach to, geographic area of, types of media for, and extent of advertising or publicity and the presentation;
(4) the relevant material to prove the record of protection for the mark as a well-known mark, including the materials certifying that the mark was protected as a well-known mark in China or any other countries and regions; and
(5) other proof materials to prove the mark well-known, including the relevant materials such as the output, turnover, sales income, profit and tax and regions of sales of the principal goods to which the mark applies over the last three years.
Article 4 If an interested party believes that another person's primarily examined and published mark is not in conformity with the provision of Article 13 of the Trademark Law, he or it may file an opposition with the Trademark Office according to the provisions of the Trademark Law and the Implementing Regulations, and submit relevant documents to prove that his or its mark is well known.
If an interested party believes that another person's registered mark is not in conformity with the provision of Article 13 of the Trademark Law, he or it may request, according to the provisions of the Trademark Law and the Implementing Regulations, the Trademark Review and Adjudication Board to make an adjudication to cancel said registered mark and submit relevant documents to prove that his or its mark is well known.
Article 5 Where, in the trademark administration, an interested party believes that a trademark used by another person shall be prohibited to use in accordance with the Article 13 of the Trademark Law and requests for protection of his or its well-known mark, he or it may file an request in writing for prohibition of the use with the administrative authorities for industry and commerce at or above the city (or other regions equivalent to city) level of the place where the case arises, and submit relevant documents to prove that his or its mark is well known. Meanwhile, the case shall be reported in writing to the provincial administrative department for industry and commerce where he or it holds domicile.
Article 6 After receiving an application for protection of a well-known mark in the trademark administration, the administrative department for industry and commerce shall examine the case as to whether it falls within the following as provided for in Article 13 of the Trademark Law:
(1) where another person's unauthorized use of a mark identical with or similar to an interested party's well-known mark not registered in China on same or similar goods is likely to cause confusion; and
(2) where another person's unauthorized use of a mark identical with or similar to an interested party's well-known mark registered in China on non-identical or dissimilar goods is likely to mislead the public and cause prejudice of the interests of the registrant of the well-known mark.
Where the administrative department for industry and commerce of the city (or other regions equivalent to city) determines that the case held falls within said circumstances, it shall, within fifteen workdays from the date of acceptance of the request of the interested party, deliver the entire case file to the administrative department for industry and commerce of the province (autonomous regions or municipality directly under the Central Government) of the place where it is located, and issue the notification of acceptance to the interested party; the administrative department for industry and commerce of the province (autonomous region or municipality directly under the Central Government) shall, within fifteen workdays from the date of acceptance of the request of the interested party, deliver the entire case file to the Trademark Office. If the administrative department for industry and commerce of the province where the interested party has his or its domicile determines that the case falls within the aforesaid circumstances, he or it may also deliver the case file to the Trademark Office.
Where the administrative department for industry and commerce determines that the case held does not fall within said circumstances, it shall deal with the case in a timely manner according to the relevant provisions of the Trademark Law and the Implementing Regulations.
Article 7 The administrative department for industry and commerce of a province (autonomous region or municipality directly under the Central Government) shall examine the documents of a case concerning the protection of a well-known mark delivered by the administrative departments for industry and commerce in the area under its administration.
Where the administrative department for industry and commerce of a province determines that the case held falls within the circumstance of Article 6 (1) of these Provisions, it shall deliver the case file to the Trademark Office within fifteen workdays from the date of receipt of the documents of the case delivered by the administrative department for industry and commerce in the area under its administration.
Where the administrative department for industry and commerce of a province determines that the case held does not fall into the circumstance of Article 6 (1) of these Provisions, it shall returned the case file to the department initially accepting the case, and the department initially accepting the case shall thereby deal with the case in a timely manner according to the relevant provisions of the Trademark Law and the Implementing Regulations.
Article 8 The Trademark Office shall make a determination within six months from the date of the receipt of the relevant documents of a case, notify of the result of the determination administrative department for industry and commerce of the province (autonomous region or municipality directly the Central Government) of the place where the case arises and deliver the duplication thereof to the administrative department for industry and commerce of the province (autonomous region or municipality directly under the Central Government) of the place where the interested party has his or its domicile.
The Trademark Office shall return the documents of the case, except those proving the well-knownness of a mark, to the administrative department for industry and commerce of the province (autonomous region or municipality directly under the Central Government) of the place where the case arises.
Article 9 Where a mark is not determined as a well-known mark, the interested party shall not file a new application for the determination of the same mark on the basis of the same fact and on the same ground within one year from the date on which the negative determination results.
Article 10 When determining a well-known mark, the Trademark Office or the Trademark Review and Adjudication Board shall take a comprehensive account of each and every factor as provided for in Article 14 of the Trademark Law, but shall not take it as the prerequisite that said mark must satisfy all the factors prescribed therein.
Article 11 The Trademark Office, the Trademark Review and Adjudication Board and the local administrative departments for industry and commerce shall take into account of the distinctiveness and the extent of well-knownness of said mark in the protection of well-known marks.
Article 12 When requesting for the protection of his or its mark according to Article 13 of the Trademark Law, an interested party may furnish the record concerning the protection of said mark as a well-known mark by the relevant competent department in China.
Where the scope of protection of an accepted case is the same in substance as that of a case of a mark being protected as a well-known mark and where the opposite party raises no opposition to the well-knownness of said mark or where, although he raises the opposition thereto, the opposite party cannot furnish any document to prove that said mark is not well known, the administrative department for industry and commerce accepting the case may adjudicate or deal with the case in the light of the conclusion of the record of protection.
Where the scope of protection of an accepted case is different from that of the case involving a mark protected as a well-known mark, or where the opposite party raises opposition to the well-knownness of said mark and furnishes documents to prove that said mark is not well known, the Trademark Office or the Trademark Review and Adjudication Board shall re-examine the documents of the well-known mark and make a determination.
Article 13 An interested party who believes that another person has registered his or its well-known mark as an enterprise name, which is likely to deceive or mislead the public, may apply to the competent authority for the registration of enterprise names for cancellation of the registration of said enterprise name. The competent authority for the registration of enterprise names shall deal with the matter in accordance with the Provisions for the Administration of the Registration of Enterprise Names.
Article 14 The administrative departments for industry and commerce at various levels shall enhance the protection of well-known marks, and transfer cases of suspected crime of counterfeiting trademarks in a timely manner to the competent department concerned.
Article 15 The administrative department for industry and commerce of the Province (autonomous region or municipality directly under the Central Government) of the place where the authority handling the case is located shall deliver a copy of the decision on the protection of a well-known mark to the Trademark Office.
Article 16 The administrative departments for industry and commerce at various levels shall set up corresponding supervisory mechanism and formulate corresponding supervisory control measures to enhance the supervision and inspection of the whole process for the determination of well-known marks.
Where any official participating in the work of determination of well-known marks abuses his power, engages in malpractice for personal gain, seeks illicit interests and handles the work of determination of well-known marks in violation of law, he or she shall be imposed disciplinary sanction according to law; where what he or she has done constitutes a crime, he or she shall be prosecuted for criminal liability.
Article 17 These Provisions shall enter into effect on June 1, 2003. The Interim Provisions for the Determination and Administration of Well-known Marks issued by the State Administration for Industry and Commerce on August 14, 1996 shall be abrogated on the same date.
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