No. 17

Several provisions on standardizing trademark application for registration, which were deliberated and adopted by the 13th executive meeting of the State Administration of market supervision in 2019 on October 10, 2019, are hereby promulgated and shall come into force on December 1, 2019.

Director YaQingXiao

October 11, 2019

Some regulations on regulating the registration of trademark application

(promulgated by order No. 17 of the State Administration of market supervision on October 11, 2019)

Article 1 in order to regulate the registration of trademark applications, regulate malicious trademark applications, maintain the order of trademark registration management and protect the public interests, these Provisions are formulated in accordance with the Trademark Law of the people's Republic of China (hereinafter referred to as the Trademark Law) and the regulations on the implementation of the trademark law of the people's Republic of China (hereinafter referred to as the regulations on the implementation of the Trademark Law).

Article 2 an application for trademark registration shall comply with the provisions of laws, administrative regulations and departmental rules, and shall meet the actual needs of obtaining the exclusive right to use a trademark.

Article 3 the application for trademark registration shall follow the principle of good faith. The following behaviors are not allowed:

（1） Not applying for trademark registration maliciously for the purpose of use as stipulated in Article 4 of the trademark law;

（2） Copying, imitating or translating another person's well-known trademark according to Article 13 of the trademark law;

（3） According to Article 15 of the trademark law, an agent or representative applies for the registration of the trademark of the principal or the representative without authorization; an agent or representative applies for the registration of the trademark based on the contract, business relationship or other relationship, knowing that the trademark previously used by others exists;

（4） The trademark which is stipulated in Article 32 of the trademark law, which damages the prior rights of others or registers the trademark which has been used by others and has certain influence by improper means;

（5） Applying for trademark registration by deception or other improper means;

（6） Other violations of the principle of honesty and credit, public order, good customs, or other adverse effects.

Article 4 a trademark agency shall abide by the principle of good faith. If he knows or should know that the application for trademark registration by the principal falls into one of the following circumstances, he shall not accept the entrustment:

（1） Not applying for trademark registration maliciously for the purpose of use as stipulated in Article 4 of the trademark law;

（2） In accordance with Article 15 of the trademark law;

（3） Article 32 of the trademark law.

The trademark agency shall not apply for the registration of other trademarks except for the trademark registration of its agency services, and shall not disturb the order of the trademark agency market by improper means.

Article 5 if the trademark registration department discovers that the trademark application for registration is a malicious trademark registration application not for the purpose of use in violation of the provisions of Article 4 of the trademark law, it shall reject it according to law and shall not make an announcement.

The specific examination procedures shall be separately formulated by the trademark registration department in accordance with the trademark law and the regulations for the implementation of the trademark law.

Article 6 if a trademark that has been preliminarily approved and announced is challenged due to violation of these provisions during the period of announcement, the trademark registration department shall decide not to register it according to law if it considers that the reason for the objection is tenable after examination.

If the trademark registration department considers that the application for rejection of reexamination or refusal of reexamination is in violation of these Provisions, it shall make a decision of rejection or refusal of registration according to law。

Article 7 Where an application for invalidation of a registered trademark is filed within the statutory time limit for reasons in violation of these Provisions, the trademark registration department shall, after hearing the case, make a ruling to declare the registered trademark invalid.

If a registered trademark is found to be in violation of these Provisions, the trademark registration department shall declare the registered trademark invalid in accordance with Article 44 of the trademark law.

Article 8 when determining whether an application for trademark registration is in violation of the provisions of Article 4 of the trademark law, the trademark registration department may comprehensively consider the following factors:

（1） The number of registered trademarks applied for by the applicant or the natural person, legal person or other organization associated with the applicant, the category of designated use, the trademark transaction, etc;

（2） The industry and business status of the applicant;

（3） The applicant has been determined by an effective administrative decision or ruling or judicial judgment to have engaged in malicious trademark registration or infringement of the exclusive right to use a registered trademark of another person;

（4） The trademark applied for registration is the same as or similar to the trademark of others with certain popularity;

（5） The trademark applied for registration is the same as or similar to the name of a well-known person, enterprise name, abbreviation of enterprise name or other business marks;

（6） Other factors that the trademark registration department thinks should be considered.

Article 9 the transfer of a trademark shall not affect the recognition of the trademark registration department in violation of Article 3 of these regulations.

Article 10 Where a registered trademark is not used for three consecutive years without proper reasons, any unit or individual may apply to the trademark registration department for cancellation of the registered trademark. After accepting the application, the trademark registration department shall notify the trademark registrant to submit within two months from the date of receipt of the notice the evidential materials for the use of the trademark before the application for cancellation is filed or explain the justifiable reasons for not using the trademark; if the evidential materials for use are not provided within the time limit or the evidential materials are invalid and there is no justifiable reason, the trademark registration department shall cancel its registered trademark.

Article 11 the trademark registration department shall publish the decisions or rulings mentioned in Articles 5, 6 and 7 of these provisions.

Article 12 for an applicant who applies for trademark registration maliciously in violation of Article 3 of these Provisions, in accordance with the provisions of paragraph 4 of Article 68 of the trademark law, the market supervision and administration department at or above the county level in the place where the applicant is located or where the illegal act occurs shall, according to the circumstances, impose such administrative penalties as warning, fine, etc. If there is any illegal income, a fine of three times the illegal income, up to 30000 yuan, may be imposed; if there is no illegal income, a fine of less than 10000 yuan may be imposed.

Article 13 In accordance with Article 68 of the trademark law, the trademark agency that violates Article 4 of these Provisions shall be ordered by the market supervision and administration department at or above the county level in the place where the perpetrator is located or where the illegal act occurs to make corrections within a time limit, be given a warning and be fined not less than 10000 yuan but not more than 100000 yuan; and the person in charge and other persons who are directly responsible shall be given a warning and be fined not less than 5000 yuan If the case constitutes a crime, criminal responsibility shall be investigated according to law. If the circumstances are serious, the intellectual property administrative department may decide to stop accepting the trademark agency's trademark agency business and make an announcement.

Article 14 the government department that makes the decision on administrative penalty shall publicize the penalty information to the public through the national enterprise credit information publicity system according to law.

Article 15 If a trademark agency violates Article 4 of these Provisions, the intellectual property administrative department shall conduct an interview with the person in charge for rectification.

Article 16 the intellectual property administration department and the market supervision and administration department shall actively guide the applicant to apply for trademark registration according to law, and the trademark agency shall engage in trademark agency business according to law, and standardize the use of registered trademark in production and operation activities.

The intellectual property management department should further smooth the trademark application channels, optimize the trademark registration process, improve the public service level of trademarks, and provide convenient services for the applicants to directly apply for registered trademarks.

Article 17 the administrative department of intellectual property rights shall improve its internal supervision system and strengthen supervision and inspection of the implementation of laws, administrative regulations and discipline by the staff of state organs engaged in trademark registration.

Any functionary of a state organ engaged in trademark registration who neglects his duty, abuses his power, engages in malpractice for personal gain, illegally handles trademark registration matters, accepts property from the parties concerned, or seeks illegitimate interests shall be punished according to law; if the case constitutes a crime, he shall be investigated for criminal responsibility according to law.

Article 18 the trade organization of trademark agency shall improve the trade self-discipline norms, strengthen the trade self-discipline, punish the members who violate the trade self-discipline norms, and make timely announcement to the public.

Article 19 These Provisions shall come into force on December 1, 2019.

 

Related reading: one question and one answer to several regulations on standardizing trademark application for registration