China Finalises the Revision of its Trademark Law for Its Entry into WTO
(5 November 2001)
The People's Republic of China enacted its first Trademark Law at the 24th Session of the Standing Committee of the Fifth National People's Congress on August 23, 1982, and began to implement the Law on 1 March 1983. The Decision on the Revision of the Trademark Law of China was adopted at the 30th Session of the Standing Committee of the Seventh National People's Congress, on February 22, 1993, and the first revised Trademark Law came into being, and went into force on 1 July 1993. On 27 October 2001, the Decision on the Second Revision of the Trademark Law was adopted at the 24th Session of the Standing Committee of the Ninth National People's Congress, which marks the birth of the second revised Trademark Law, which will enter into force on 1 December 2001.
With the constant development of economy in China and its imminent entry into WTO, a variety of laws and regulations are now under amplification and revision in order to meet the requirements for the health development of the economy and the harmonization with rules of WTO. The revision of the Trademark Law is no exception. Following are the Highlights of the revision of the Trademark Law:
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I. |
The former Trademark Law consists of eight chapters and forty-three articles, but the newly revised Trademark Law comprises eight chapters and sixty-four articles, with a marked increase of the new articles. |
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II. |
Following additions have been made to the newly revised Trademark Law as seen from the amendment and addition of the articles of the Law: |
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Collective marks, certification marks and geographic indications are brought under protection and defined in specific terms for the first time (see Articles 3 and 16).
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The subjects of the trademark rights have been extended from legal entities to natural persons and legal entities (see Article 4)
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Three-dimensional signs and/or marks composed of colour(s) are protected, i.e. the newly revised Trademark Law protects three-dimensional and colour marks (see Article 8).
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The use of official symbols and testing/inspection seals as trademarks is prohibited (see Article 4).
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It is expressly provided for the protection of well-known marks, and set forth the requirements for the establishment thereof (see Articles 13 and 14).
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Explic it and complete provisions are set forth in the Trademark Law in respect of the right of priority and of the provisional protection of trademarks used in exhibitions as well (see Article 24 and 25)
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While adhering to the first-to-file principle and the registration principle, bad-faith, abusive registration of other persons' trademarks and other prior rights, such as the design rights, copyrights, enterprise name rights, etc. is prohibited (see Articles 15 and 31)
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The administrative decisions made by the Trademark Review and Adjudication Board on the determination of trademark rights are no longer final. Any interested party dissatisfied with the decision by Trademark Review and Adjudication Board may, within thirty days from the date of receipt of the notice, institute legal proceedings in the People's Court (Articles 32, 33, 43 and 49)
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In order to strengthen the administration of trademarks, the administrative sanction on acts of trademark infringement has been intensified. Once an act of trademark infringement is constituted, the administrative authority for industry and commerce (e.g. AICs) may exercise its administrative function to order cessation of the infringing act, to confiscate and destroy infringing goods, and impose a fine. Any infringing act that is so serious as to constitute a crime should be transferred to the judicial authority for handling (see Articles 53 and 54)
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Where it is difficult to determine the profit gained by the infringer through an infringement of a registered trademark or damages suffered by the infringee from the infringement, the People's Court has the power to impose a compensation of, at most, RMB 500,00 yuan according to the circumstances of the infringing act.
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Measures for Provisional Protection are added for the purpose of stopping acts of trademark infringement. Such measures as the pre-trial injunction, pre-trial evidence and property preservation may be taken (see Articles 57 and 58).
Should you have any questions and comments, please call or e-mail us at the following:
Tel: (852) 28284688 (Operator);
(852) 28284642 (Trademark Dept., Hong Kong)
(8610) 66211850 (Trademark Dept., Beijing)
E-mail: mail@cpahkltd.com
China Patent Agent (H.K) Ltd.
