The Introduction and Amendments on the Draft Revision of the Trademark Law of the People’s Republic of China (Exposure Draft) in 2023

General Provisions

General Provisions

The holder of a trademark well known by the relevant public may file a request for well-known trademark protection under this Law if believing that there is any infringement upon its rights.

The holder of a trademark well known in the relevant sector of the public may file a request for well-known trademark protection under this Law if believing that there is any infringement upon its rights.

The protection of well-known trademarks shall comply with the principle of case-by-case determination, passive protection, and determination on demand.

The scope and strength of protection of a well-known trademark shall be commensurate with the distinctive character and degree of recognition thereof.

The well-known status of a trademark shall be determined upon request of a party as a fact to be found in the handling of a trademark case. The following factors shall be taken into account in determining the well-known status of a trademark:

(1)   The degree of knowledge of the trademark in the relevant sector of the public.

(2)   The duration, methods, and geographical area of any use of the trademark.

(3)   The duration, extent, and geographical area of any publicity of the trademark.

(4)   Any applications for and registrations of the trademark in and outside of China.

(5)   The records of protection of the trademark, in particular, the records of protection of the trademark as a well-known trademark.

(6)   The value associated with the trademark.

(7)   Other factors relevant to the determination of a well-known trademark.

2.      For now, the estimation of value associated with the trademark basically shares the same contents and documents with the determination of well-known trademark. It would force holders of rights to bear excess and unnecessary burden improperly if such factor is requested to be the requirement of determination of well-known trademark.

Whether a trademark is a well-known trademark shall be determined upon request of a party as a fact to be found in the handling of a trademark case. The following factors shall be taken into account in the determination of a well-known trademark:

(1)   Reputation of the trademark to the relevant public.

(2)   Duration of the use of the trademark.

(3)   Duration, extent, and geographical area of any publicity of the trademark.

(4)   Records of protection of the trademark as a well-known trademark.

(5)   Other factors relevant to the determination of a well-known trademark.

Newly added

Conditions for Trademark Registration

The trademark for registration shall be distinctive for easy identification, and may not be in conflict with any prior legal rights acquired by others.

A trademark for which an application for registration is filed shall be so distinctive as to be distinguishable, and may neither violate public order or good morals nor be in conflict with any prior legal rights or interests acquired by others.

Unless otherwise provided, the same applicant may register only the same trademark for the same goods or services.

The following signs may not be used as trademarks:
(1) A sign identical with or similar to the name, national flag, national emblem, national anthem, military flag, military emblem, military anthem, or decorations, among others, of the People’s Republic of China or identical with the name or symbol of a central state organ, the name of specific place where it is located, or the name or design of its landmark building.

(2) A sign identical with or similar to the name, national flag, national emblem, or military flag, among others, of a foreign country, except as permitted by the government of the foreign country.

(3) A sign identical with or similar to the name, flag, or emblem of an international intergovernmental organization, except as permitted by the organization or except that it will usually not mislead the public.

(4) A sign identical with or similar to an official sign or an inspection mark which indicates control or provides guarantee, except as authorized.

(5) A sign identical with or similar to the name or sign of the Red Cross or the Red Crescent.

(6) A sign bearing ethnic discrimination.

(7) A sign which is deceptive and easily misleads the public regarding the quality or origin of goods.

(8) Signs detrimental to socialist morality or mores or having any other adverse effect.

The name of any administrative division at or above the county level or the name of any foreign place known by the public may not be used as a trademark, except that the place name has other meanings or is used as a part of a collective mark or certification mark. Existing registered trademarks using place names shall continue to be valid.

The following signs may not be used as trademarks:

(1)   A sign identical with or similar to the State name, national flag, national emblem, national anthem, military flag, military emblem, military anthem, or decorations, among others, of the People’s Republic of China, or identical with the name or sign of a central state organ, the name of the specific place where it is located, or the name or design of its landmark building.

(2)   A sign identical with or similar to the State name, national flag, national emblem, or military flag, among others, of a foreign country, except that the government of the foreign country agrees otherwise on the use.

(3)   A sign identical with or similar to the name, flag, or emblem of an international intergovernmental organization, except that the organization agrees otherwise on the use or that the use is less likely to mislead the public.

(4)   A sign identical with or similar to an official sign or hallmark which indicates control or warranty, except that the use thereof is otherwise authorized.

(5)   A sign identical with or similar to an important traditional cultural symbol, name, or sign, except that the use thereof is otherwise authorized.

(6)   A sign identical with or similar to the name or sign of the Red Cross or the Red Crescent.

(7)   A sign of the nature of discrimination against any nationality.

(8)   A sign which is deceptive and is liable to mislead the public as to the quality or origin of goods.

(9)   A sign contrary to core socialist values, detrimental to socialist morality or mores or excellent traditional Chinese culture, or having any other adverse effect.

The name of any administrative division at or above the county level or the name of any place in or outside of China known to the public may not be used as a trademark, except that the place name has other meanings or is used as a part of a collective mark or certification mark. Existing registered trademarks using place names shall continue to be valid.

“A sign identical with or similar to an important traditional cultural symbol, name, or sign, except that the use thereof is otherwise authorized” or at least removing the word “similar to”.

2.      There are, as a matter of fact, plenty of successful business cases that the trademarks relevant to or identical with the traditional cultural symbols such as GREATWALL wine, Panda Cable and the HarmonyOS (“Harmony” in Chinese is a concept created in ancient China mythology) of HUAWEI. Where the application of trademarks identical with or similar to the traditional cultural symbols are considered as squatting or hoarding trademarks, it is appropriate to limit such behaviors via sub-paragraph 9 “…detrimental to…excellent traditional Chinese culture, or having any other adverse effect”.

3.      Even the provision is reserved eventually, it is necessary to control the standard of review and trial for the existing brands to update or renew their trademarks.

Newly added

A trademark for which an application for registration is filed shall not be identical with the applicant’s earlier trademark which the applicant has earlier applied for, or has been registered, or has been deregistered by publication, canceled, or invalidated within one year before the date of the application, for identical goods, except under the following circumstances, or unless the applicant agrees to deregister the original registered trademark:

(1)   As needed for production and distribution, trivial improvements are made in the earlier trademark in actual use, and the applicant can explain the difference.

(2)   The earlier trademark fails to be renewed for reasons not attributable to the applicant.

(3)   The earlier registered trademark is deregistered by reason of failure to submit a statement of use for the trademark in a timely manner, but the earlier trademark is in actual use.

(4)   The earlier trademark is canceled by reason, not attributable to the applicant, of failure to provide evidence of use in the cancellation proceedings because of three consecutive years of non-use, but the earlier trademark is in actual use.

(5)   The earlier trademark is invalidated because of a conflict with the prior rights or interests of another person, but the prior rights or interests have ceased to exist.

(6)   The double or new application for trademark registration is otherwise justified.

“

（2）The invalidation of earlier trademark is attributable to failure of renewal.

（3）The earlier registered trademark is deregistered by reason of failure to submit a statement of use for the trademark in a timely manner.

”

2.      The requirements of “actual use” may lead to the condition that the trademarks still in preparation stage may be prohibited from registration permanently. Since the applicants have born the adverse liability on the application date, no more penalty is necessary.

Newly added

An applicant shall not apply for trademark registration in bad faith, including the following:

(1)   Applying for trademark registration in quantity not for the purpose of use, disrupting the order of trademark registration.

(2)   Applying for trademark registration by deception or other improper means.

(3)   Applying for the registration of a trademark that is detrimental to the national interest or the public interest, or has other major adverse effects.

(4)   Violating the provisions of Articles 18, 19, and 23 of this Law by intentionally damaging the lawful rights or interests of another person or seeking improper benefits.

(5)   Otherwise applying for trademark registration in bad faith.

Where two or more trademark registration applicants apply for the registration of identical or similar trademarks for identical or similar goods, the trademark, the registration of which is applied for first, shall be preliminarily approved and published; or if the applications are filed on the same day, the trademark which is used first shall be preliminarily approved and published, while the applications of the others shall be refused and their trademarks shall not be published.

Where two or more trademark registration applicants apply for the registration of identical or similar trademarks for identical or similar goods, the trademark, the registration of which is applied for first, shall be preliminarily approved and published; or if the applications are filed on the same day, and the determination of the first application is impossible, the trademark which is used first shall be preliminarily approved and published, while the applications of the others shall be refused and their trademarks shall not be published.

Trademark agencies may not apply for registration of trademarks other than those applied for in acting for clients.

Trademark agencies may neither apply for registration of trademarks other than those applied for in acting for clients nor otherwise engage in the foregoing act in disguise.

2.      It is improper limitation on the right for agencies to expand its business.

Application for Trademark Registration

Application for Trademark Registration

A trademark registration applicant shall, according to the prescribed classification of goods, enter the class and designation of goods on which the trademark is to be used, and file an application for registration.

A trademark registration applicant may, in a single application, apply for registration of the same trademark on goods of different classes.

Trademark registration applications and other relevant documents may be filed in written or data message form.

A trademark registration applicant shall, according to the prescribed classification of goods, enter the class and designation of the goods on which the trademark is to be used, and file an application for registration.

A trademark registration applicant may, in a single application, apply for the registration of the same trademark for goods of different classes.

If an application for trademark registration is filed without the fee being paid, the application for trademark registration shall be deemed to have never been filed.

Trademark registration applications and other relevant documents shall be filed in written or data message form.

If the formalities for an application for trademark registration are complete, and application documents are filled out in accordance with the applicable provisions, the intellectual property authority of the State Council shall accept the application, and notify the applicant; or reject the application, if the intellectual property authority of the State Council finds that the trademark for which an application for registration is filed conspicuously has a major adverse effect.

2.      The methods and intensity of relief for the applicant if the applications are not accepted are far weaker than the relief in the rejection stage, which may lead to inadequate relief for the applicants.

For a preliminarily approved and published trademark, within three months from the date of publication, a prior rights holder or an interested party which believes that paragraph 2 or 3 of Article 13, Article 15, paragraph 1 of Article 16, Article 30, Article 31, or Article 32 of this Law is violated or any person that believes that Article 4, Article 10, Article 11, Article 12, or paragraph 4 of Article 19 of this Law is violated may file an opposition with the Trademark Office. If no opposition has been filed upon expiry of the publication period, the registration shall be approved, a certificate of trademark registration shall be issued, and a publication shall be made.

For a preliminarily approved and published trademark, within two months from the date of publication, a prior rights holder or an interested party which believes that Article 18, Article 19, paragraph 1 of Article 20, Article 23, Article 24, or Article 25 of this Law is violated or any person that believes that Article 15, Article 16, Article 17, Article 21, paragraph 1 and paragraph 2 of Article 22, or Article 26 of this Law is violated may file an opposition with the administrative department of intellectual property under the State Council. If no opposition has been filed upon expiry of the publication period, the registration shall be approved, a certificate of trademark registration shall be issued, and a publication shall be made.

Where a trademark registration application is rejected or publication is denied, the Trademark Office shall notify the applicant in written form. The applicant may apply to the Trademark Appeal Board for a review within 15 days after receiving the notice. The Trademark Appeal Board shall make a decision within nine months after receiving the application and notify the applicant of its decision in written form. Under special circumstances, the time limit may be extended by three months with the approval of the administrative department for industry and commerce under the State Council. Against the decision of the Trademark Appeal Board, the party concerned may institute an action in a people’s court within 30 days after receiving the notice.

Where, in a review conducted according to the preceding paragraph, the Trademark Appeal Board must determine the involved prior rights based on the results of another case being tried by a people’s court or handled by an administrative agency, it may suspend the review. After the cause of suspension is eliminated, the review process shall be resumed.

Where, in an examination or trial conducted according to the preceding paragraph, the administrative department of intellectual property under the State Council must determine the involved prior rights based on the results of another case being tried by a people’s court or handled by an administrative agency, it may suspend the examination or trial. After the cause of suspension is eliminated, the examination or trial process shall be timely resumed.

In the trial of the decision of review on refusal, decision of denying registration or ruling of invalidation made by the administrative department of intellectual property under the State Council in accordance with Article 24 and Article 25 of this Law, the people’s court shall rely on the factual state at the time when the decision or ruling being appealed is made. If the status of the trademark has changed since the decision or ruling is made, it shall not affect the trial of the decision or ruling by the people’s court, except for the obvious violation of the principle of fairness.

Or,

Suggest deleting the second paragraph.

Declaration of Invalidation of Registered Trademarks

Declaration of Invalidation and Cancellation of Registered Trademarks

Where a registered trademark violates Article 4, Article 10, Article 11, Article 12, or paragraph 4 of Article 19 of this Law, or its registration was acquired by fraud or any other illicit means, the Trademark Office shall declare invalidation of the registered trademark; and any other organization or individual may petition the Trademark Appeal Board to declare invalidation of the registered trademark.

The Trademark Office shall notify the party concerned in written form of its decision to declare invalidation of the registered trademark. Against the decision of the Trademark Office, the party concerned may apply to the Trademark Appeal Board for a review within 15 days after receiving the notice. The Trademark Appeal Board shall make a decision within nine months after receiving the review application, and notify the party concerned of its decision in written form. Under special circumstances, the time limit may be extended by three months with the approval of the administrative department for industry and commerce under the State Council. Against the decision of the Trademark Appeal Board, the party concerned may institute an action in a people’s court within 30 days after receiving the notice.

Where any other organization or individual petitions the Trademark Appeal Board to declare invalidation of a registered trademark, the Trademark Appeal Board shall, after receiving the application, notify the party concerned in written form, and specify a time limit for submission of defense. The Trademark Appeal Board shall make a ruling to sustain the registered trademark or declare invalidation of the registered trademark within nine months after receiving the application, and notify the party concerned of its decision in written form. Under special circumstances, the time limit may be extended by three months with the approval of the administrative department for industry and commerce under the State Council. Against the ruling of the Trademark Appeal Board, the party concerned may institute an action in a people’s court within 30 days after receiving the notice. The people’s court shall notify the opposite party in the trademark ruling proceedings to participate in the action as a third party.

Where a registered trademark violates Article 15, Article 16, Article 17, Article 21, paragraph 1 and paragraph 2 of Article 22, or Article 26 of this Law, the administrative department of intellectual property under the State Council shall declare invalidation of the registered trademark.

The administrative department of intellectual property under the State Council shall notify the party concerned in written form of its decision to declare invalidation of the registered trademark. Against the decision, the party concerned may apply for a review within 15 days after receiving the notice. The administrative department of intellectual property under the State Council shall make a decision within nine months after receiving the review application, and notify the party concerned of its decision in written form. Under special circumstances, the time limit may be extended by three months upon. Against the decision of the review, the party concerned may institute an action in a people’s court within 30 days after receiving the notice.

With the circumstances listed in the first paragraph of this article, any other natural person, legal person or unincorporated organization may petition the administrative department of intellectual property under the State Council to declare invalidation of a registered trademark. The administrative department of intellectual property under the State Council shall, after receiving the application, notify the party concerned in written form, and specify a time limit for submission of defense. The administrative department of intellectual property under the State Council shall make a ruling to sustain the registered trademark or declare invalidation of the registered trademark within nine months after receiving the application, and notify the party concerned of its decision in written form. Under special circumstances, the time limit may be extended by three months upon approval. Against the ruling of the administrative department of intellectual property under the State Council, the party concerned may institute an action in a people’s court within 30 days after receiving the notice. The people’s court shall notify the opposite party in the trademark ruling proceedings to participate in the action as a third party.

Where a registered trademark violates paragraph 2 or 3 of Article 13, Article 15, paragraph 1 of Article 16, Article 30, Article 31, or Article 32 of this Law, a prior rights holder or an interested party may petition the Trademark Appeal Board for declaration of invalidation of the registered trademark within five years from the date of trademark registration. If the registration is acquired in bad faith, a well-known trademark holder shall not be subject to the five-year time limit.

After receiving a petition for declaring invalidation of a registered trademark, the Trademark Appeal Board shall notify the party concerned in written form, and specify a time limit for submission of defense. The Trademark Appeal Board shall make a ruling to sustain the registered trademark or declare invalidation of the registered trademark within 12 months after receiving the petition, and notify the party concerned of its decision in written form. Under special circumstances, the time limit may be extended by six months with the approval of the administrative department for industry and commerce under the State Council. Against the ruling of the Trademark Appeal Board, the party concerned may institute an action in a people’s court within 30 days after receiving the notice. The people’s court shall notify the opposite party in the trademark ruling proceedings to participate in the action as a third party.

Where a registered trademark violates Article 18, Article 19, paragraph 1 of Article 20, Article 23, Article 24, or Article 25 of this Law, a prior rights holder or an interested party may petition the administrative department of intellectual property under the State Council for declaration of invalidation of the registered trademark within five years from the date of trademark registration. In the case of violation of the provisions of Articles 18 and 19 of this Law, or violation of the provisions of Article 23 of this Law to improperly preempt the registration of others have been used and have a certain influence, the prior right holder may request the transfer of the registered trademark to their own name. If the registration is acquired in bad faith, a well-known trademark holder shall not be subject to the five-year time limit.

After receiving a petition for declaring invalidation or transferring of a registered trademark, the administrative department of intellectual property under the State Council shall notify the party concerned in written form, and specify a time limit for submission of defense. The administrative department of intellectual property under the State Council shall make a ruling to sustain the registered trademark, transfer the registered trademark, or declare invalidation of the registered trademark within 12 months after receiving the petition, and notify the party concerned of its decision in written form. Under special circumstances, the time limit may be extended by six months upon approval. Against the ruling of the administrative department of intellectual property under the State Council, the party concerned may institute an action in a people’s court within 30 days after receiving the notice. The people’s court shall notify the opposite party in the trademark ruling proceedings to participate in the action as a third party.

The legislators may consider to expand the provisions thereof to the fields of stage of opposition and even application, as the jurisprudence involved is the same.

Where, in using a registered trademark, the trademark registrant changes the registered trademark, the name or address of the registrant, or any other registered matter without approval, the local administrative department for industry and commerce shall order the registrant to make correction within a prescribed time limit; and if the registrant fails to do so within the time limit, the Trademark Office shall cancel the registered trademark.

Where a registered trademark becomes a common name of goods on which it is approved to be used or the use of the registered trademark has ceased for three consecutive years without good reasons, any entity or individual may apply to the Trademark Office for cancellation of the registered trademark. The Trademark Office shall make a decision within nine months after receiving the application. Under special circumstances, the time limit may be extended by three months with the approval of the administrative department for industry and commerce under the State Council.

Any natural person, legal person or unincorporated organization may apply to the administrative department of intellectual property under the State Council for cancellation of the registered trademark if one of the following circumstances exists, provided that the legitimate rights and interests of the trademark registrant shall not be harmed, or the order of trademark registration shall not be disturbed:

(1)   A registered trademark becomes a common name of goods on which it is approved to be used.

(2)   The use of a registered trademark has ceased for three consecutive years without good reasons.

(3)   The use of a registered trademark leads to misidentification of the quality and other characteristics of the goods or origin by the relevant public.

(4)   The registrant of collective mark or certification mark violates the provisions of Article 63 of this Law, with particularly serious circumstances.

(5)   The use of a registered trademark or the exercise of the right to exclusively use a registered trademark seriously damages the public interest, resulting in significant adverse effects.

Where a registered trademark has the circumstances listed in the preceding paragraph 4 or 5, the administrative department of intellectual property under the State Council may revoke the registered trademark ex officio.

The administrative department of intellectual property under the State Council shall make a decision within nine months after receiving the application for cancellation. Under special circumstances, the time limit may be extended by three months with approval.

Against a decision of the Trademark Office to cancel or not to cancel a registered trademark, the party concerned may, within 15 days after receiving a notice of the decision, apply to the Trademark Appeal Board for a review. The Trademark Appeal Board shall make a decision within nine months after receiving the application, and notify the party concerned of the decision in written form. Under special circumstances, the time limit may be extended by three months with the approval of the administrative department for industry and commerce under the State Council. Against the decision of the Trademark Appeal Board, the party concerned may institute an action in a people’s court within 30 days after receiving the notice.

Against a decision of the administrative department of intellectual property under the State Council to cancel or not to cancel a registered trademark, the party concerned may, within 15 days after receiving a notice of the decision, apply to the administrative department of intellectual property under the State Council for a review. The administrative department of intellectual property under the State Council shall make a decision within nine months after receiving the application, and notify the party concerned of the decision in written form. Under special circumstances, the time limit may be extended by three months with approval. Against the decision upon review, the party concerned may institute an action in a people’s court within 30 days after receiving the notice.

Administration and Use of Trademarks

The trademark registrant shall, within twelve months after every five years from the date of approval of the registration of the trademark, explain to the administrative department of intellectual property under the State Council the use of the trademark on the approved goods or justifiable reasons for non-use. The trademark registrant may make a statement concerning the use of multiple trademarks within the above-mentioned period.

If no statement is made at the end of the period, the administrative department of intellectual property under the State Council shall notify the trademark registrant. If the trademark registrant fails to make a statement within six months from the date of receipt of the notification, the registered trademark shall be deemed abandoned and the registered trademark shall be cancelled by the administrative department of intellectual property under the State Council.

The administrative department of intellectual property under the State Council shall conduct random inspections of the authenticity of the statements, and if necessary, may require the trademark registrant to add relevant evidence or commission the local administrative department of intellectual property to verify. If, upon random inspection, the statement is found to be not true, the administrative department of intellectual property under the State Council shall revoke the registered trademark.

2.      The number of existing trademarks is significant which reaches 40 million. The implementation of the provisions hereof may cause expensive cost.

3.      The impartiality is difficult to be protected if the random inspection and verification is authorized to the local administrative departments of intellectual property.

4.      It would be difficult for the famous/well-known trademarks to register defense trademarks which are identical with their main trademarks under the provisions hereof.

Trademark agencies shall follow the principle of good faith, abide by laws and administrative regulations, handle trademark registration applications and other trademark-related matters as authorized by clients, and maintain confidential clients’ trade secrets known in acting for clients.

Where the trademark registration applied for by a client may be denied for any circumstances as described in this Law, a trademark agency shall clearly notify the client thereof.

Where a trademark agency knows or should have known that a client’s trademark registration application falls under any circumstances as described in Articles 4, 15 and 32 of this Law, it may not accept the client’s authorization.

Trademark agencies shall follow the principle of good faith, abide by laws and administrative regulations, handle trademark registration applications and other trademark-related matters as authorized by clients, and maintain confidential clients’ trade secrets known in acting for clients.

Where the trademark registration applied for by a client may be denied for any circumstances as described in this Law, a trademark agency shall clearly notify the client thereof.

Where a trademark agency knows or should have known that a client’s trademark registration application falls under any circumstances as described in Articles 22 of this Law, it may not accept the client’s authorization.

Trademark agency practitioners shall comply with the law, have a good credit standing, good character, be familiar with trademark laws and regulations, and have the ability to engage in trademark agency business in accordance with the law. Trademark agency practitioners shall not engage in trademark agency business in more than two trademark agencies at the same time.

Protection of the Right to Exclusively Use a Registered Trademark

Protection of the Right to Exclusively Use a Registered Trademark

Where any dispute arises from any of infringements upon the right to exclusively use a registered trademark as set out in Article 57 of this Law, the parties concerned shall resolve the dispute through negotiation; and if they are reluctant to resolve the dispute through negotiation or the negotiation fails, the trademark registrant or an interested party may institute an action in a people’s court or request the administrative department for industry and commerce to handle the dispute.

If the administrative department for industry and commerce handling the dispute determines that an infringement is constituted, it shall order immediate cessation of infringement and confiscate and destroy the infringing goods and the tools mainly used for manufacturing the infringing goods and counterfeiting the labels of the registered trademark, and may impose a fine of not more than five times the illegal business revenues if the amount of illegal business revenues reaches 50,000 yuan or a fine of not more than 250,000 yuan if there is no illegal business revenue or the amount of illegal business revenues is less than 50,000 yuan. If trademark infringement has been committed twice or more within five years or there are other serious circumstances, a heavier punishment shall be imposed. If goods infringing the right to exclusively use a registered trademark are sold without knowledge of such infringement, and the seller is able to prove that the goods are legally acquired and provide the supplier, the administrative department for industry and commerce shall order cessation of sale.

Where any dispute arises regarding the amount of damages for infringement upon the right to exclusively use a registered trademark, the parties concerned may request the administrative department for industry and commerce handling the dispute to conduct mediation or institute an action in a people’s court in accordance with the Civil Procedure Law of the People’s Republic of China. If the parties concerned fail to reach an agreement upon mediation by the administrative department for industry and commerce or fail to fulfill a mediation agreement after being executed, the parties concerned may institute an action in a people’s court in accordance with the Civil Procedure Law of the People’s Republic of China.

Where any dispute arises from any of infringements upon the right to exclusively use a registered trademark as set out in Article 72 of this Law, the parties concerned shall resolve the dispute through negotiation, or may apply for arbitration to an arbitration institution according to the written arbitration agreement reached by the parties; and if they are reluctant to resolve the dispute through negotiation or the negotiation fails or there is no written arbitration agreement, the trademark registrant or an interested party may institute an action in a people’s court or request the department in charge of trademark enforcement to handle the dispute.

If the department in charge of trademark enforcement handling the dispute determines that an infringement is constituted, it shall order immediate cessation of infringement, confiscate and destroy the infringing goods and the tools mainly used for manufacturing the infringing goods and counterfeiting the labels of the registered trademark, and confiscate the illegal gain, and may impose a fine of not more than five times the illegal business revenues if the amount of illegal business revenues reaches 50,000 yuan or a fine of not more than 250,000 yuan if there is no illegal business revenue or the amount of illegal business revenues is less than 50,000 yuan. If goods infringing the right to exclusively use a registered trademark are sold without knowledge of such infringement, and the seller is able to prove that the goods are legally acquired and provide the supplier, the department in charge of trademark enforcement shall order cessation of sale, confiscate the infringing goods, and may refer the case to the department in charge of trademark enforcement at the location of the provider of infringing goods.

If trademark infringement has been committed twice or more within five years or there are other trademark violations, refusal or obstruction of law enforcement, or other serious circumstances, a heavier punishment shall be imposed by the department in charge of trademark enforcement.

Where any dispute arises regarding the implementation of infringement or the amount of damages for infringement upon the right to exclusively use a registered trademark, the parties concerned may request the administrative department of intellectual property to conduct administrative adjudication or mediation, or institute an action in a people’s court in accordance with the Civil Procedure Law of the People’s Republic of China. If, upon mediation by the administrative department of intellectual property, an agreement is reached, judicial confirmation may be made by the people’s court; if no agreement is reached, the administrative department of intellectual property may make an administrative ruling on whether the infringement is found. Against the administrative ruling, the parties concerned may institute an action in the people’s court in accordance with the Administrative Procedure Law of the People’s Republic of China.

If a dispute arises between the relevant party and the trademark registrant or interested party over the right to exclusively use the registered trademark, the party may institute an action in the people’s court and request a judgment on whether its act infringes the right to exclusively use the registered trademark.

Suggest changing the “may refer the case to the department in charge of trademark enforcement at the location of the provider of infringing goods” in paragraph 2 into “shall refer the case to the department in charge of trademark enforcement at the location of the provider of infringing goods.”

Strongly suggest to further complete the regulations thereof at the level of trademark law, reducing the vagueness and uncertainty in the practice.