ORDER OF STATE ADMINISTRATION FOR INDUSTRY AND COMMERCE
NO. 66
Regulations for the Recognition and Protection of Well-known Trademark, which has been reviewed and passed at the executive meeting of the State Administration for Industry and Commerce, is hereby promulgated and shall come into force in 30 days from the date of promulgation.
Director Zhang Mao
July 3, 2014
Regulations for the Recognition and Protection of Well-known Trademark
(Promulgated on July 3, 2014 according to the Order No. 66 of the State Administration for Industry and Commerce)
Article 1 In order to regulate well-known trademark recognition work and protect legal interests of well-known trademark holder, the Regulations are formulated according to the Trademark Law of People’s Republic of China (hereafter referred to as “Trademark Law”) and Implementation Regulations of the Trademark Law of the People’s Republic of China (hereafter referred to as “Implementation Regulations”).
Article 2 “Well-known trademarks” refers to trademarks that are widely known to the relevant public in China.
“The relevant public” includes consumers related to the type of commodity or service branded with the trademark, other business operators that produce the aforesaid goods or provide the aforesaid service, sellers and relevant people involved in the distribution channel, etc.
Article 3 Upon request of the involved party, the Trademark Office and the Trademark Review and Adjudication Board shall be responsible for the recognition and protection of well-known trademark in cases such as trademark registration examination, trademark dispute and investigation against trademark violation by the administrations of industry and commerce.
Article 4 The recognition of well-known trademark shall comply with the principles of “recognition case by case” and “passive protection”.
Article 5 Where the involved party files an opposition with the Trademark Office according to Article 33 of the Trademark Law and requests well-known trademark protection according to Article 13 of the Trademark Law, he may apply with the Trademark Office for well-known trademark protection in writing and submit the evidential materials to prove the well-known status of the mark.
Article 6 Where the involved party requests well-known trademark protection according to Article 13 of the Trademark Law in the review on the non-approval decision of registration cases and the invalidation cases, he may apply with the Trademark Review and Adjudication Board for well-known trademark protection in writing and submit the evidential materials to prove the well-known status of the mark.
Article 7 Trademark violation cases in relation to well-known trademark protection shall be responsible by the administrations of industry and commerce at or above the city (prefecture, autonomous prefecture) level. Where the involved party requests the administration of industry and commerce to investigate the trademark violation and requests well-known trademark protection according to Article 13 of the Trademark Law, he may complain to the administrations of industry and commerce at or above the city (prefecture, autonomous prefecture) level, request well-known trademark protection in writing and submit the evidential materials to prove the well-known status of the mark.
Article 8 The involved party shall comply with the principle of honesty and credibility when requesting well-known trademark recognition and bear legal liability to the authenticity of the submitted evidential materials.
Article 9 The following materials can be used as evidential materials which are in accordance with Article 14(1) of the Trademark Law:
(1) The relevant materials proving the degree to which the trademark is known among the relevant public;
(2) The relevant materials proving the length of continuous use of the trademark, such as materials related to the use, history and scope of registration. If the trademark is an unregistered trademark, the materials shall prove continuous use of the trademark not less than 5 years. If the trademark is a registered mark, the materials shall prove the trademark has been registered for not less than 3 years or has been continuously used for not less than 5 years.
(3) The relevant materials proving the continuous length of time, degree and geographical scope of any publicity work for the trademark, for example, materials related to the way of advertising and publicity and promotion, geographical scope, types of advertising media and amount of investment in advertising, etc. in the recent three years;
(4) The relevant materials proving the trademark has been protected as a well-known trademark in China or other countries or areas;
(5) Other evidence proving that the trademark is well-known, for example, materials related to the sales revenue, market share, net profits, and tax payment amount, and sales regions of the main commodities that use the trademark in the recent three years.
“Three years” or “five years” prescribed in the preceding paragraph means “three years” or “five years” prior to the application date of opposed mark in the trademark opposition case, the application date of the trademark requested for invalidation in invalidation case, and the date of the request for well-known protection in investigation against trademark violation cases.
Article 10 Where the involved party requests well-known trademark protection according to Article 5 and Article 6 of this Regulations, the Trademark Office and Trademark Review and Adjudication Board shall examine and handle the case timely within the periods prescribed in Article 35, Article 37 and Article 45 of the Trademark Law.
Article 11 Where the involved party requests the administration of industry and commerce to investigate trademark violation according to Article 7 of this Regulations, the administration of industry and commerce shall inspect the complaining materials and decide whether to accept the case according to the relevant provision of the Administrative Penalty Procedural Rules of the Administrations for Industry and Commerce. Where the administration of industry and commerce decides to accept the case, it shall preliminarily verify and examine whether the well-known trademark protection request and the relevant evidential materials submitted by the involved party comply with Article 13 and Article 14 of the Trademark Law, Article 3 of the Implementation Regulations of Trademark Law, and Article 9 of this Regulations. Where it complies with the laws and regulations after preliminary examination, it shall submit the well-known trademark protection request and a duplicate copy of the case materials to the superior administration for industry and commerce within 30 days upon acceptance of the case. If the case does not comply with the laws and regulations after examination, it shall deal with the case timely according to the relevant provisions of Administrative Penalty Procedural Rules of the Administrations for Industry and Commerce.
Article 12 The administration for industry and commerce at provincial (autonomous region and municipality directly under the central government) level shall verify and examine whether the materials requesting well-known trademark protection submitted by the administration for industry and commerce above city (prefecture and autonomous prefecture) within its jurisdiction are in accordance with Article 13 and Article 14 of the Trademark Law, Article 3 of the Implementation Regulations of Trademark Law, and Article 10 of this Regulations. If complying with the laws and regulations after examination, it shall submit the well-known trademark protection request and a duplicate copy of the case materials to the Trademark Office within 30 days upon acceptance of the case. If not complying with the laws and regulations, it shall return the relevant materials to the original office which accepted the case. The original office shall deal with the case timely according to the relevant provisions of Administrative Penalty Procedural Rules of the Administrations for Industry and Commerce.
Article 13 The Trademark Office and Trademark Review and Adjudication Board shall comprehensively consider the various factors prescribed in Article 14 (1) of the Trademark Law and Article 9 of this Regulations, but it is not a premise to meet all the factors.
Where the Trademark Office and Trademark Review and Adjudication Board need the local administration for industry and commerce to verify the relevant situation in the recognition of well-known trademark, the relevant local administration for industry and commerce shall provide assistance.
Article 14 Where the Trademark Office decides that the trademark constitutes a well-known mark in the case submitted by the administration for industry and commerce at provincial (autonomous region and municipality directly under the central government) level after examination, it shall make a written notice to the administration for industry and commerce at provincial (autonomous region and municipality directly under the central government) level that forwarded the request.
The administration for industry and commerce which received the case shall deal with the case according to law within 60 days upon receiving the written notice for recognition from the Trademark Office and send the penalty notice to the administration for industry and commerce at provincial (autonomous region and municipality directly under the central government) level. The administration for industry and commerce at provincial (autonomous region and municipality directly under the central government) level shall report the situation of the case and send the duplicate copy of the penalty notice to the Trademark Office within 30 days upon receiving the administrative penalty notice.
Article 15 All levels of administration for industry and commerce shall strengthen protection to well-known trademarks in trademark registration and management work and protect legal interests of the right owner and consumers. Where crime is suspected involving in trademark violation, the case shall be transferred to the relevant judicial department timely.
Article 16 Where the involved party requests well-known trademark protection in accordance with Article 13 of the Trademark Law in the trademark registration examination, trademark dispute, and trademark violation investigated by the administration of industry and commerce, he may submit record showing that the trademark has previously been protected as a well-known trademark in China.
Where the scope of well-know trademark protection of a case is basically the same as that of a case in which protection of the well-known trademark has been granted, and the other party does not object the well-known status of the trademark, or although he objects to it, there is no sufficient ground or evidence to support such objection, the Trademark Office, The Trademark Review and Adjudication Board, and the department that has accepted the trademark violation case may render well-known trademark protection to the trademark on the basis of the relevant evidence.
Article 17 Where the trademark is granted well-known trademark protection through unfair means, such as fraud or providing fake evidential materials, etc. by the involved party in the trademark violation cases, the Trademark Office shall cancel the recognition of the involved mark and notify the administration for industry and commerce at provincial (autonomous region and municipality directly under the central government) level that forwarded the request for well-known trademark recognition.
Article 18 Where the local administration for industry and commerce, in violation of Article 11 and Article 12 of this Regulations, fails to perform their duty on verifying and examining the relevant materials of well-known trademark recognition, or in violation of Article 13(2) of this Regulations, fails to provide assistance or perform its verification duty, or in violation of Article 14(2) of this Regulations, fails to deal with trademark violation case or fails to report the situation within the prescribed time, the administration for industry and commerce at above level shall report the situation and order it to rectify.
Article 19 All levels of administration for industry and commerce shall establish and improve the supervision and inspection system of well-known trademark recognition.
Article 20 Where any relevant personnel participating in the work of recognition of well-known trademarks neglects his duty, abuses his power, commits illegalities for personal gains, handles matters relevant to the recognition of well-known trademarks in violation of the law, accepts property from the involved party, seeks unfair benefits, shall be treated according to the relevant laws and regulations.
Article 21 This Regulations shall be effective in 30 days from promulgation date. The Recognition and Management of Well-known Trademarks by the State Administration for Industry and Commerce on April 17, 2003 shall be repealed simultaneously.
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