Order No. 5 by the State Administration of Industry and Commerce of the People's Republic of China
(April 17, 2003)
Rule 1 These stipulations 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).
Rule 2 The "well-known trademark" prescribed in the stipulations refers to a trademark which the relevant general public is very well aware of and which enjoys the high prestige.
The "relevant general public" shall include consumers who use some products or services bearing the trademark, merchants who produce the above-mentioned products or furnish the service and relevant sellers and employees concerned in their business channels
Rule 3 The following documentation could be used as the evidence to prove well-known nature of a trademarks:
(1) Documentation to prove the extent to which the relevant general public is aware of the trademark,
(2) Documentation to prove the duration of the use of trademark, including the history and sphere of the use and registration of trademark.
(3) Documentation to prove the duration, geographical areas and extent to which the knowledge of the trademark covers, including but not limited to the mode and geographical areas of advertising and sales promotion, the types of promoting media as well as the budget fixed for the advertising.
(4) Documentation showing the record of the trademark protected as a well-known trademark, including the trademark being protected as a well-known trademark in China or other countries and regions.
(5) Other documentation to prove the well-known nature of the trademark, including the output, sales volume, sales income, profit and taxes paid as well as sales areas and so forth of the principal products bearing the trademark.
Rule 4 If the party concerned holds that others' preliminarily approved and published trademark contravenes the regulation of Article 13 of the Trademark Law, he could, under the Trademark Law and the Implementing Regulations thereof, file an opposition with the Chinese Trademark Office and submit the evidential documents to prove the well-known nature of the trademark involved.
If the party concerned holds that other's registered trademark contravenes the regulation of Article 13 of the Trademark Law, he could, under the Trademark Law and the Implementing Regulations thereof, request the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce (hereinafter referred to as the Trademark Review and Adjudication Board) adjudicate on the cancellation of the registered trademark and submit the evidential documents to prove the well-known nature of the trademark involved.
Rule 5 During the process of administrating the trademark, if the party concerned holds the trademark used by others falls into the circumstances prescribed by Article 13 of the Trademark Law and pleads for protecting the well-known trademark, he could submit a written application for prohibiting the use of the trademark together with the evidential documents proving the well-known nature of the trademark involved to the municipal (provincial) administrative authority for industry and commerce at the location where the case is carried out, and at the same time reports to the provincial administrative authority for industry and commerce.
Rule 6 Upon receiving the application for the protection of a well-known trademark, the administrative authority for industry and commerce should examine whether the case falls into the circumstances as provided in Article 13 of the Trademark Law:
(1) Whether others arbitrarily use the trademark similar to or identical with an unregistered well-known trademark in China with respect to the identical or similar goods of the party concerned, and the likelihood for the creation of confusion;
(2) Whether others arbitrarily use the trademark similar to or identical with a registered well-known trademark in China with respect to goods not identical or similar to which the well-known trademark covers, and is likely to mislead the public and damage the interests of the owner of the registered well-known trademark;
The municipal (provincial) administrative authority for industry and commerce should, as soon as it decides that the case falls into the above-prescribed circumstances, transfer all materials in the case file to the provincial (autonomous region, municipality directly under the Central Government) administrative authority for industry and commerce at the location with fifteen (15) working days from the date of accepting the filed application of the party concerned, and issue a Notification of Case Accept (notice of filing of the application) to the party concerned; the provincial (autonomous region, municipality directly under the Central Government) administrative authority for industry shall transfer all materials in the case file to the Chinese Trademark Office within fifteen (15) working days from the date of accepting the application filed by the party concerned. The provincial administrative authority for industry and commerce at the location of the party concerned could also, if it decides that a case falls into the above-prescribed circumstances, transfer all the materials in the case file to the Chinese Trademark Office.
If a case is decided to not fall into the above-prescribed circumstances, it should be, under the Trademark Law and the Implementing Regulations thereof, settled without delay.
Rule 7 The provincial (autonomous region, municipality directly under the Central Government) administrative authority for industry shall examine the materials in the case file transferred by the municipal (provincial) administrative authority for industry and commerce within the area under its jurisdiction.
The provincial (autonomous region, municipality directly under the Central Government) administrative authority for industry shall, if it decides a case falls into the circumstances prescribed by Rule 6, Item 1 of the Stipulations, transfer all the materials in the case file to the Chinese Trademark Office within fifteen (15) days from the date receiving the same transferred by the municipal (provincial) administrative authority for industry and commerce with the area under its jurisdiction.
The provincial (autonomous region, municipality directly under the Central Government) administrative authority for industry shall, if decides a case does not fall into the circumstances prescribed by Rule 6, Item 1 of the Stipulations, return the relevant materials to the original case accepting authority, which should, under the Trademark Law and the Implementing Regulations thereof, settle the case without delay.
Rule 8 The Chinese Trademark Office shall make the recognition within six (6) months from the date the relevant materials were received, inform the recognition result to the provincial (autonomous region, municipality directly under the Central Government) administrative authority for industry at the location the case is carried out, and copy to the provincial (autonomous region, municipality directly under the Central Government) administrative authority for industry at the location the party concerned locates.
The Chinese Trademark Office shall, except the evidential materials to prove the well-known nature of the trademark, return all other materials in the case file to the provincial (autonomous region, municipality directly under the Central Government) administrative authority for industry at the location the case is carried out.
Rule 9 As to the trademark which is not recognized as a well-known trademark, the party concerned shall not, within one (1) year from the date the recognition was made, plead for recognizing the same well-known nature of the trademark on the basis of the same facts and grounds.
Rule 10 The Chinese Trademark Office and the Trademark Review and Adjudication Board shall, when recognizing the well-known nature of a trademark, take into comprehensive consideration the factors prescribed in Article 14 of the Trademark Law, but is not required that a trademark should fit all the factors prescribed in Article 14.
Rule 11 The Chinese Trademark Office, the Trademark Review and Adjudication Board and the local administrative authority for industry shall, when protecting a well-known trademark, take into consideration the extent to which the trademark is well-known and the distinctiveness thereof.
Rule 12 Where the party concerned pleads for the protection for its trademark in accordance with Article 13 of the Trademark Law, he should furnish the documentation of record showing the trademark was protected by the Chinese competent authority as a well-known trademark.
Where the accepted case shares a similar scope of protection as the case in which the trademark was protected as a well-known trademark, and the opposite party has no objection to the well-known nature of the trademark involved, or even raised an objection but could not furnish the evidential documentation against the well-known nature of the trademark involved, the administrative authority for industry accepting the case could, according to the conclusion drawn from the protection record, pass judgment.
Where the scope of protection of the accepted case is different from that of the case in which the trademark was protected as a well-known trademark, or the opposite party raised an objection and furnished evidential documentation against the well-known nature of the trademark involved, the Trademark Office or the Trademark Review and Adjudication Board should re-examine the documentation proving the well-known nature of the trademark involved and make the recognition.
Rule 13 Where the party concerned holds that others record its well-known trademark as the name of others' enterprise, and the public are liable to be deceived or misled, he could apply to the enterprise name recording authority to cancel such enterprise name. The enterprise name recording authority should settle the case according to Enterprise Name Recordal Management Regulations.
Rule 14 The administrative authority for industry at all levels shall reinforce the protection for the well-known trademarks, and duly transfer to the relevant authority the case being suspected of the crime of counterfeit trademark.
Rule 15 The provincial (autonomous region, municipality directly under the Central Government) administrative authority for industry at the location of an authority settling a case should report the decision on protection of the well-known trademarks to the Chinese Trademark Office.
Rule 16 The administrative authority for industry at all levels shall establish a corresponding supervisory system and formulate the supervisory and restraint measure so as to reinforce the supervisory management during the procedure of recognition of the well-know nature of the trademark.
Where a member of the state personnel responsible for recognizing the well-known nature of trademarks abuses power or practices fraud for personal considerations, or reaps the unlawful profits or handles the case in violation of the stipulations of well-known trademark recognition, he shall be subject to administrative disciplinary measures according to rules and regulations; if the case is so serious as to constitute a crime, he shall be prosecuted according to law for his criminal liabilities.
Rule 17 These Stipulations shall enter into force on June 1, 2003. The Interim Stipulations for Well-Known Trademark Recognition and Management promulgated by the State Administration of Industry and Commerce on August 14th, 1996 shall be abrogated on the same date.
