The Order of the State Administration for Industry and Commerce of the People’s Republic of China (No. 5)

The Provisions for the Determination and Protection of Well-Known Trademarks has been adopted at executive meeting of the State Administration for Industry and Commerce. It is hereby promulgated and shall be implemented as of June 1, 2003.

Director, Wang Zhongfu
April 17, 2003


Article 1 The Present Provisions are formulated in accordance with the Trademark Law of the People's Republic of China (hereinafter referred to as the Trademark Law), the Implementing Rules for the Trademark Law of the People’s Republic of China (hereinafter referred to as the Implementing Rules).

Article 2 The term “well-know trademark” as mentioned in the present Provisions refers to a trademark widely known by the relevant public and highly reputable in China.

The term “relevant public” include the consumers related to certain kind of commodities or services indicated by a trademark, manufacturers of the said commodities or other operators who provide relevant services, and the sellers and other people involved in the market.
 
Article 3 The following materials may be used as the certification materials of a well-known trademark:
1. relevant materials that can show the extent that the relevant public know the trademark;
2. relevant materials that can show the lasting time of the trademark, including the materials involving the history and scope of the use and registration of the trademark;
3. relevant materials that can prove the lasting time, extent and geographic scope of any publicity work, including ways of adverting and promotion, geographic scope, type of publicity media and the quantity of the launched advertisements;
Relevant materials that can prove that this trademark has been protected as a famous one, including the pertinent materials that the trademark has been protected as a well-known trademark in China, or in other country or region;
4. Other evidential materials that can prove the trademark is famous, including the materials regarding the recent 3 years of output, sales volume, profit payments and tax turnover and sales territory of the principal commodities using this trademark.
　
Article 4 Where a trademark, which has been given preliminary examination and approval and publicly announced, is thought to be in violation of Article 13 of the Trademark Law, the party involved may raise an objection to the trademark office in accordance with the relevant provisions of the Trademark Law and the Implementing Rules and shall submit relevant materials that can prove the trademark as famous.
Where a registered trademark is thought to be in violation of Article 13, the party involved may file an application to the Trademark Review and Adjudication Board, pleading it to make a ruling to revoke the registered trademark, and shall submit relevant materials that can prove the trademark as famous.

Article 5 In the management of trademarks, where a trademark used by others is thought to be in violation of Article 13 and it is requested to protect this famous trademark, the party involved may file an written application to the administrative department at the city (prefecture, region) level of the place where case has occurred, pleading it to ban such use, and shall submit relevant materials that can prove the trademark as famous. At the same time, it shall report to the administrative department at the provincial level where it is located.

Article 6 Having received an application for the protection of a famous trademark in the administration of marks, the administrative department for industry and commerce shall examine whether the case falls within the following circumstances as provided in Article 13 of the Trademark Law:
1. Where a well-known trademark that hasn’t been registered in China is used on identical or similar commodities of others without permission, and it is likely to cause confusion;
2. Where an trademark identical or similar to a well-known trademark that has been registered in China is used on the different or dissimilar commodities without permission, and it is likely to mislead the public and to cause damages to the interests of the registrant of the well-know trademark.

As to a case of either of the above-mentioned circumstances, the administrative department at the city (prefecture, region) level shall submit the complete set of materials of this case to the administrative department of this province (autonomous region, municipality directly under the Central Government) within 15 days as of the acceptance of the application, and shall issue a case acceptance notice to the parties involved. Within 15 days as of the acceptance of the application, the administrative department of this province (autonomous region, municipality directly under the Central Government) shall submit the complete set of materials of this case to the trademark office.

A case not falling within the above-mentioned circumstances shall be timely resolved in accordance with the Trademark Law and the Implementing Rules.
　　
Article 7 The administrative department of the province (autonomous region, municipality directly under the Central Government) shall examine the materials involving well-known trademark protection submitted by the administrative departments at the city (prefecture, region) level within its jurisdiction.

For a case falling within the circumstance as listed in the first paragraph of Article 6 of the present Provisions, the materials of the case submitted by the administrative department for industry and commerce at the city (prefecture, region) level shall be submitted to the trademark office within 15 days as of the acceptance of these materials.

For a case not falling within the circumstance as listed in the first paragraph of Article 6 of the present Provisions, the relevant materials shall be returned to the original acceptance organ, and the case shall be timely resolved in accordance with the Trademark Law and the Implementing Rules.
　　
Article 8 The trademark office shall make a decision about the relevant materials of a case, shall inform the administrative department of the province (autonomous region, municipality directly under the Central Government) where this case occurred of the decision, and send a copy of the decision to the administrative department of the province (autonomous region, municipality directly under the Central Government) where the involving parties are located.

Except for the materials for proving the trademark famous, the trademark office shall return the other materials to the administrative department of the province (autonomous region, municipality directly under the Central Government) where the case occurred.
　　
Article 9 For a trademark that has not been determined famous, the applicant shall not file another application for the same trademark on the basis of the same facts and reasons within one year as of the decision is made.

Article 10 When determining whether a trademark is famous or not, the trademark office and the Trademark Review and Adjudication Board shall take account of all the factors listed by Article 14 of the Trademark Law, but it shall not set a precondition – to require the trademark to satisfy all the factors – for the trademark

Article 11 When protecting a well-known trademark, the trademark office, Trademark Review and Adjudication Board and local administrative department of industry and commerce shall take the distinction and level of fame of the trademark into consideration.

Article 12 Where an applicant requests to protect its trademark in accordance with Article 13 of the Trademark law, it may offer records that this trademark has ever been protected as a famous one by the administrative organ of our country.

If the protection scope of the case upon acceptance is almost the same as that of the case in which the trademark has already been protected as a famous trademark, and both parties to the case raise no objection to the point that the trademark is famous, or the opposing party raise an objection, but fails it to offer evidential materials to prove that this trademark is not famous, the administrative department of industry and commerce that accepts this case shall make a ruling on or solve the case on the basis of the conclusion of the protected records.

If the protection scope of the case upon acceptance differs from that of the case in which the trademark has already been protected as a famous trademark, the opposing party raises an objection to the point that the trademark is famous and offers evidential materials to prove that this trademark is not famous, therefore the materials related to the famous trademark shall be re-examined and determined by the trademark office and the Trademark Review and Adjudication Board.
　　
Article 13 If a party concerned holds that its famous trademark which has been registered as an enterprise name by others may cheat or mislead the public, it may apply to the administrative organ of enterprise name registration for canceling the registration of this enterprise name. The administrative organ of enterprise name registration shall deal with such a case in accordance with the Administrative Provisions of Enterprise Name Registration.

Article 14 The administrative departments of industry and commerce of all levels shall strengthen the protection of famous trademarks, and shall transfer the suspected cases of crimes of counterfeit trademark to the relevant departments in time.

Article 15 The administrative department of industry and commerce of the province (autonomous region, municipality directly under the Central Government) where the organ which made the decision is located shall send a copy of the decision made to protect the famous trademark.

Article 16 The administrative departments of industry and commerce of all levels shall establish relevant supervision system, create relevant supervision and control measures, and strengthen the supervision and inspection of the whole process of the determination of a famous trademark.

If the pertinent functionaries engaged in the determination of famous trademarks neglect their duties, abuse their powers, seek private interests, seek improper profits, violate the law in the determination of famous trademarks, they shall be given an administrative punishment in accordance with the law; and those who constitute crimes shall be subject to the criminal responsibilities in accordance with the law.
　
Article 17 The Present Provisions shall be implemented as of June 1, 2003. At the same time, the Interim Provisions for Well-known Trademark Determination and Protection promulgated by the State Administration for Industry and Commerce on August 14, 1996 shall be concurrently abolished.