China Law Library

Trademark Act of the People’s Republic of China

CBL’s Introduction

China’s Trademark Act turns brand registration and use into a tightly enforced legal regime. Bad-faith filings, counterfeit labels, or failure to keep a mark in genuine use can bring refusals, heavy fines, seizure and destruction of goods, and criminal charges. CBL’s American English translation outlines the precise filing, use, and dispute rules businesses operating in China need to follow to protect their marks and avoid costly mistakes.

Contents

Ch. 1 General Provisions

Ch. 2 Trademark Applications

Ch. 3 Registration Examination and Approval

Ch. 4 Renewal, Amendment, Assignment, and Licensing

Ch. 5 Invalidation of Trademark Registrations

Ch. 6 Administration of Trademark Use

Ch. 7 Protection of Exclusive Rights

Ch. 8 Miscellaneous

 

Trademark Act of the People’s Republic of China (2019 Amendment)

(Adopted at the 24th Session of the Standing Committee of the Fifth National People’s Congress on August 23, 1982; first amended pursuant to the Decision to Amend the China Trademark Act adopted at the 30th Session of the Standing Committee of the Seventh National People’s Congress on February 22, 1993; second amended pursuant to the Decision to Amend the China Trademark Act adopted at the 24th Session of the Standing Committee of the Ninth National People’s Congress; third amended pursuant to the Decision to Amend the China Trademark Act adopted at the 4th Session of the Standing Committee of the Twelfth National People’s Congress on August 30, 2013; and fourth amended pursuant to the Decision to Amend the China Construction Act and Seven Other Laws adopted at the 10th Session of the Standing Committee of the Thirteenth National People’s Congress on April 23, 2019.)

Chapter 1 General Provisions

Section 1 The purpose of this Act is to regulate trademark administration, protect trademarks, incentivize producers and businesses to ensure the quality of their goods and services, maintain trademark goodwill to protect the interests of both consumers and businesses, and contribute to the development of the Chinese socialist market economy.

Section 2 The Trademark Office under the cabinet-level business regulator is responsible for trademark registration and administration in China.

The cabinet-level business regulator shall establish a Trademark Trial and Appeal Board to adjudicate trademark disputes.

Section 3 All marks approved and registered by the China Trademark Office, including trademarks, service marks, collective marks, and certification marks. The registrant of a registered trademark shall have the exclusive right to use the mark, and this right is protected by law.

A collective mark under this Act is a mark registered for commercial use by a group, association, or organization and is used by its members to indicate membership in such group, association, or organization.

A certification mark under this Act is a mark that is controlled by an organization with the authority to oversee specific goods or services and is used by entities or individuals outside the organization to certify the origin, raw materials, manufacturing methods, quality, or other characteristics of the goods or services.

The cabinet-level business regulator shall issue regulations governing the registration and administration of collective marks and certification marks.

Section 4 An individual, legal entity, or other organization that seeks exclusive rights in a trademark for specific goods or services for commercial purposes must file for registration with the China Trademark Office. Applications filed in bad faith without intent to use shall be refused.

This Act applies to both trademarks for goods and service marks.

Section 5 Two or more individuals, legal entities, or organizations may file a joint application with the Trademark Office to register a trademark and shall share the exclusive rights in the mark equally.

Section 6 Goods that must bear a trademark as required by law may not be offered for sale until the trademark is registered.

Section 7 A trademark application must be filed in good faith, and a registered trademark must be used in good faith.

The trademark owner is responsible for the quality of the goods sold under the mark. The national and local business regulatory agencies shall oversee trademark practices and prevent practices that mislead consumers.

Section 8 Any mark that distinguishes the goods of an individual, legal entity, or organization from those of others may be registered as a trademark upon filing an application, including words, graphics, letters, numbers, three-dimensional marks, color combinations, and sounds.

Section 9 A mark filed for registration must be sufficiently distinctive and must not infringe upon any legal prior rights.

A registrant may identify the use of a registered trademark by using the designation “Registered Trademark” or the trademark symbol.

Section 10 A mark may not be registered as a trademark if it is:

(a) identical or similar to a name, flag, emblem, anthem, or medal of the People’s Republic of China; a flag, emblem, or anthem of the People’s Liberation Army; or to a name or mark of a central government agency, its locations, landmark building, or graphic representations of such building;

(b) identical or similar to a name, national flag, national emblem, national anthem, military flag, or other insignia of a foreign country, unless its use is authorized by the foreign government;

(c) identical or similar to a name, flag, emblem, or other insignia of an international intergovernmental organization, unless authorized by the organization or its use would not mislead the public;

(d) identical or similar to official marks or inspection marks indicating control or certification, unless authorized;

(e) identical or similar to a name or emblem of the Red Cross or Red Crescent;

(f) discriminatory against any ethic group;

(g) deceptively misleads the public about the quality, origin, or other characteristics of the goods; or

(h) damaging to socialist morality or otherwise has a bad influence.

The name of a county or parent administrative region, or a famous foreign place, may not be registered as a trademark unless the name has acquired a distinct meaning unrelated to its geographical significance. This restriction does not apply to collective marks or certification marks. A trademark that uses such a geographic name and was lawfully registered before this restriction took effect shall remain valid.

Section 11 A mark may not be registered as a trademark if it:

(a) consists solely of the generic name, graphic, or model number for the goods;

(b) merely describes the quality, main raw materials, function, use, weight, quantity, or other characteristics of the goods; or

(c) lacks distinctiveness.

However, marks that acquire distinctiveness through use may be registered.

Section 12 A three-dimensional mark shall not be registered if its shape is determined solely by the characteristics of the goods, the technical requirements, or by the need to add substantial value to the goods.

Section 13 A trademark registrant may request famous trademark protection under this Act to allege an infringement of the exclusive rights to their famous mark.

A mark that is a reproduction, imitation, or translation of a famous trademark that has not been registered in China may not be registered for identical or similar goods or used if it is likely to mislead the public.

A mark that is a reproduction, imitation, or translation of a famous trademark registered in China may not be registered for goods that are not identical or similar to those identified by the famous mark and may not be used if such use is likely to mislead the public and harm the registrant‘s interests.

Section 14 A famous mark determination shall be made upon the registrant’s request when necessary to resolve a trademark dispute. The famous mark determination shall consider:

(a) the degree of recognition of the mark among the consuming public;

(b) the duration of the use of the mark;

(c) the duration, extent, and geographic reach of advertising of the mark;

(d) records showing that the mark has been protected as a famous trademark; and

(e) any other factors supporting the mark’s fame.

The China Trademark Office may determine a mark to be a famous trademark upon a party’s request when conducting a trademark application examination or administrative enforcement proceeding as necessary to resolve a dispute involving the rights governed by § 13 of this Act.

The Trademark Trial and Appeal Board may determine a mark to be famous upon a party’s request if necessary to resolve a dispute involving the rights governed by § 13 of this Act during adjudication.

A court designated by the Supreme Court may determine a mark to be a famous trademark upon a party’s request if necessary to resolve a dispute involving the rights governed by § 13 of this Act during civil or administrative trademark proceedings.

Producers and businesses shall not label their goods, packaging, or containers with the words “Famous Mark” or use such a designation in advertisements, exhibitions, or other commercial activities.

Section 15 A trademark shall not be registered or used if a trademark agent or representative files an application to register the mark in their own name without the client’s authorization, and the client files an opposition.

Notwithstanding the above, a trademark shall not be registered when the applicant, through a contractual, business, or other relationship, is aware that another party has previously used an identical or similar unregistered mark for the same or similar goods and the prior user files an opposition.

Section 16 A mark including a geographical indication for goods not originating in the indicated location in a manner likely to mislead the public shall not be registered, and such a mark shall not be used unless registered in good faith.

“Geographical indication” means a mark used to designate goods as originating in a specific geographic location, where specific quality, reputation, or other characteristics of the goods may be attributed to the location’s natural or cultural features.

Section 17 A trademark application filed in China by a foreign national or business shall be managed pursuant to the applicable treaty between the applicant‘s country of origin and the People’s Republic of China, applicable international treaties to which both countries are parties, or based on the principle of reciprocity.

Section 18 An applicant may file a trademark application or other trademark matter directly or through a licensed trademark service provider.

A foreign national or business must use a licensed trademark service provider to file a trademark application or other trademark matter.

Section 19 A trademark service provider that represents a client in a trademark application or any other trademark matter shall act in good faith, comply with all applicable laws, and keep any client trade secrets it becomes aware of strictly confidential.

A trademark service provider is obligated to expressly notify the client if it believes that the trademark would be ineligible for registration under this Act.

A trademark service provider shall not accept representation if the provider knows or should know that the client’s mark is not registrable under §§ 4, 15, or 32 of this Act.

A trademark service provider may file a trademark application in its own name only to register a mark that identifies its own trademark agency services, and shall not file any other application on its own behalf.

Section 20 A trademark representation industry organization shall strictly enforce its membership requirements pursuant to its bylaws and shall discipline any member that violates industry self-regulatory rules. The organization shall promptly make its membership roster and all disciplinary actions publicly available.

Section 21 An application for international trademark registration shall comply with the international treaty governing trademark registration to which China is a party or has acceded, and the State Council shall issue guidelines for international trademark registration applications.

Chapter 2 Trademark Applications

Section 22 A trademark applicant shall identify each good or service by class and name based on the official goods classification table when filing a trademark application.

A single application may request registration of the same mark in more than one class of goods.

A trademark application and supporting documents may be filed in printed form or electronically.

Section 23 A trademark applicant shall file a separate application to register a trademark for goods beyond those covered by the existing registration.

Section 24 Any change made to a registered trademark shall be made through a new application for registration.

Section 25 An applicant who files a trademark application in China for an identical mark for identical goods within six months after first filing in a foreign country shall enjoy the priority right for the mark pursuant to applicable treaties between China and the foreign country, international treaties to which both China and the foreign country are parties, or the principle of reciprocity.

An applicant claiming priority under this section must declare the claim in writing at the time of filing and must submit a copy of the initial trademark application within three months of the filing date. Failure to file a written declaration or submit a copy during the 3-month period shall constitute a waiver of the right to claim priority.

Section 26 An applicant applying to register a mark first used on goods displayed at an international exhibition organized or accredited by the Chinese government may claim a priority in the mark by filing within six months after the goods are displayed.

The applicant shall file a written declaration of priority with the trademark application and submit documentation that identifies the exhibition, shows the mark as used on the exhibited goods, specifies the exhibition date, and any other required proof within three months after filing. An applicant who fails to file the written declaration or provide the required documentation within the deadline waives any claimed priority rights.

Section 27 All materials submitted and declarations made as part of a trademark registration application must be authentic, accurate, and complete.

Chapter 3 Trademark Registration Examination and Approval

Section 28 The China Trademark Office shall examine each trademark application within nine months after receiving it and shall publish a preliminary approval if the application meets the requirements of this Act.

Section 29 During the examination of a trademark application, the Trademark Office may require the applicant to provide a description or make corrections. Failure to comply shall not affect the examination outcome.

Section 30 The Trademark Office shall refuse an application that fails to meet the requirements of this Act or seeks to register a mark identical or similar to an existing registration or to a mark that has received preliminary approval for the same or similar goods. Registration refusals will not be published.

Section 31 Where two or more applicants file applications for identical or similar marks for the same or similar goods, the application that the China Trademark Office receives first shall be accepted and published upon receiving preliminary approval. If competing applications are filed on the same day, the Trademark Office shall accept and publish the application covering the mark that was used first upon preliminary approval. All other applications for the same or similar marks on the same or similar goods shall be refused, and such refusals will not be published.

Section 32 A trademark application may not infringe another party’s prior rights and may not be filed in bad faith to preemptively register a mark that another party is already using and that has gained public recognition.

Section 33 A prior user or other interested party may file an written opposition with the Trademark Office within three months after a registration receives preliminary approval and is published if they believe that such registration violates §§ 13(b), 13(c), 15, 16(a), 30, 31, or 32 of this Act. Any party who believes that registration would violate §§ 4, 10, 11, 12, or 19(d) of this Act may also file an opposition within the same period. The Trademark Office shall approve the registration, issue a registration certificate, and publish notice of the registration if no opposition is filed by the end of the opposition period.

Section 34 The China Trademark Office shall provide written notice to a trademark applicant of its refusal or nonpublication of a trademark application. An applicant dissatisfied with the decision may appeal to the Board within 15 days of receiving the notice. The Board shall issue a written decision within 9 months of receiving the appeal and notify the applicant. The cabinet-level business regulator may grant an extension of 3 months for exceptional circumstances. A party dissatisfied with the Board’s decision may file suit within 30 days of receiving the notice.

Section 35 The Trademark Office shall review the facts and arguments presented by both the adverse party and the applicant in response to an opposition against a preliminary trademark approval published. The  Trademark Office shall verify the facts and decide whether to register the mark within twelve months of the close of the opposition period. The  Trademark Office shall notify both parties of its decision in writing. The  cabinet-level business regulator may extend the decision period by up to six months in exceptional circumstances.

If the Trademark Office approves the mark, it shall issue a certificate of registration and publish notice of the registration.

An adverse party dissatisfied with the decision may petition the Board to invalidate the registration  pursuant to §§ 44 and 45 of this Act. An applicant dissatisfied with a refusal decision may file an appeal with the Board within fifteen days after receiving the Trademark Office’s notice. The Board shall issue a decision on the appeal within twelve months after the date the appeal is received and notify both parties in writing. The cabinet-level business regulator may extend the decision period by up to six months in exceptional circumstances. An applicant dissatisfied with the Board’s decision may file a civil action in the appropriate court within 30 days after receiving the decision. The court shall notify the adverse party who may participate as a third party in the action.

The Board may stay its adjudication of an appeal when the outcome depends on a prior rights matter pending before a court or an administrative agency. The Board shall promptly resume the appeal after the prior rights matter is resolved.

Section 36 A preliminary refusal to register a mark becomes final and effective when the applicant fails to appeal to the Board or fails to file civil action in an appropriate court after an adverse Board or China Trademark Office decision within the statutory deadline.

If an opposition is denied and the mark is registered, the applicant’s exclusive rights vest upon the expiration of the three-month opposition period following publication of the preliminary approval. Use of an identical or similar mark on the same or similar goods between the preliminary approval publication date and the registration decision shall not have retroactive legal effect. Notwithstanding, a party that acts in bad faith during this period shall be liable for any resulting damages.

Section 37 Each trademark application shall be examined promptly, and each appeal shall be decided without undue delay.

Section 38 A trademark applicant or registrant may request correction of any apparent error in an application or registration document.

The Trademark Office shall make the correction to the extent permissible and shall notify the applicant or registrant.

A correction shall not affect the substantive content of the application or registration document.

Chapter 4 Renewal, Amendment, Assignment, and Licensing of a Registered Trademark

Section 39 A trademark registration shall be valid for ten years from the registration date.

Section 40 A trademark registrant wishing to keep using a trademark beyond the expiration of its initial registration shall file a renewal application within 12 months after the registration expires. A six-month grace period shall be granted if the registrant does not file a renewal application by the deadline. Each renewal extends the registration for ten years, beginning on the day after the prior registration expires. Failure to file the renewal application within the grace period cancels the registration.

The China Trademark Office shall publish notice of each renewal.

Section 41 A registered trademark owner who wishes to change the registrant’s name, address, or other details shall file a written amendment request.

Section 42 An assignor and assignee shall execute a trademark assignment contract and jointly submit an assignment request to the China Trademark Office. The assignee shall be responsible for the quality of the goods identified by the assigned mark.

A registrant assigning a mark must assign any similar mark registered for identical goods and any identical or similar mark registered for similar goods.

The Trademark Office shall refuse an assignment likely to cause confusion or otherwise have a bad influence and shall notify the assignor and assignee of the reasons for the refusal in writing.

The Trademark Office shall publish notice of an approved assignment, and the assignee’s exclusive rights in the mark shall vest on the publication date.

Section 43 A trademark registrant may grant another party the right to use the registered mark under a trademark license contract. The licensor shall monitor the quality of the goods sold under the licensed mark, and the licensee shall ensure that the goods sold under the licensed mark meet the required quality standards.

Goods sold under the licensed mark shall clearly indicate the name of the licensee and the place of origin.

The licensor shall file the trademark license contract with the Trademark Office, and the Trademark Office shall publish notice of the filing. A trademark license that has not been filed shall not be enforceable against a third party unaware of the license.

Chapter 5 Invalidation of Trademark Registrations

Section 44 The Trademark Office shall invalidate any registered trademark that violates §§ 4, 10, 11, 12, or 19(d) of this Act, or that was registered by deceptive or improper means. Any individual or organization may petition the Board to invalidate such a trademark.

The Trademark Office shall issue a written notice of its invalidation decision to the parties. A party dissatisfied with the Trademark Office decision may appeal to the Board within 15 days of receiving the notice. The  Board shall issue a written decision within 9 months of receiving the appeal and notify the parties. The cabinet-level business regulator may grant an extension of 3 months for exceptional circumstances. A party dissatisfied with the Board’s decision may file suit within 30 days of receiving the notice.

The China Trademarks Trial and Appeal Board shall notify the trademark registrant in writing if any petition for invalidation is filed by another organization or individual and require a written response within the statutory deadline. The Board shall decide whether to maintain or invalidate the trademark within 9 months of receiving the petition and serve the written decision on the parties. The cabinet-level business regulator may grant a 3-month extension for exceptional circumstances. A party dissatisfied with the Board’s decision may file a civil action within 30 days of receiving the notice. The court shall notify the adverse party who may participate as a third party in the proceedings.

Section 45 A prior user or interested party may petition the Board to invalidate a registered trademark that violates §§ 13(b) and (c), 15, 16(a), 30, 31, or 32 of this Act within five years after the registration date. The five-year limit does not apply when the owner of a famous trademark seeks to invalidate a registration obtained in bad faith.

The Board shall notify the trademark registrant in writing upon receiving a petition for invalidation filed by another organization or individual and require a written response by the statutory deadline. The Board shall issue the parties a written decision upholding or invalidating the trademark registration within 12 months after the petition is filed. The cabinet-level business regulator may grant a 3-month extension for exceptional circumstances. A party dissatisfied with the Board’s decision may file a civil action within 30 days after receiving the decision. The court shall notify the adverse party who may participate as a third party in the proceeding.

The Board may stay its proceedings pending the outcome of a judicial or administrative proceeding and shall resume its adjudication once the matter is resolved.

Section 46 A China Trademark Office or Board decision or ruling that upholds or invalidates a trademark registration shall become effective if no appeal or civil action against such a decision or ruling is filed by the party before the end of the statutory deadline.

Section 47 The Trademark Office shall publish any decision that invalidates a trademark registration pursuant to §§ 44 or 45 of this Act. The registrant’s exclusive rights are deemed void from the date of registration.

Invalidation shall not affect any final court judgments, rulings, or settlement agreements entered before the invalidation date, nor shall it affect trademark infringement determinations issued by the business regulator or trademark assignments before the invalidation date, or license contracts executed before that date. However, a trademark registrant shall pay damages to any party for losses resulting from bad faith use of the invalidated mark.

Such damages include all or part of the loss incurred from the infringement and all or part of the costs incurred in recording trademark assignments or licensing the mark. Failure to pay such damages shall constitute a violation of the principle of fairness.

Chapter 6 Administration of Trademark Use

Section 48 The use of a mark in this Act refers to using a mark to identify the source of the goods through their use on the goods, packaging, containers, or sales documents, or other commercial materials, such as advertising and exhibition displays.

Section 49 The local business regulator shall order any trademark registrant who amends the registered mark, name, address, or other registration details without approval to correct the records within a statutory deadline. The Trademark Office shall cancel the trademark registration if the registrant fails to comply by the deadline.

Any organization or individual may petition the China Trademark Office to cancel a registration that has become a generic name of the identified goods or that has not been used for three consecutive years without a valid excuse. The Trademark Office shall issue a written decision on such a petition within 9 months of receipt. The cabinet-level business regulator may grant an extension of 3 months for exceptional circumstances.

Section 50 The Trademark Office shall refuse any application to register a mark identical or similar to a previously registered trademark when the earlier registration was cancelled, invalidated, or allowed to expire within one year after the effective date of such cancellation, invalidation, or expiration.

Section 51 The local business regulator shall order a seller that violates § 6 of this Act to file a trademark registration application within a statutory deadline. If more than 50,000 yuan of illegal business income is obtained through the violation, the local business regulator may impose a penalty of up to 20% of that income. If no illegal business income is obtained or if the amount obtained is less than 50,000 yuan, the regulator may impose a penalty of up to 10,000 yuan.

Section 52 The local business regulator shall order any party that uses an unregistered mark to counterfeit a registered mark or uses an unregistered mark in violation of § 10 of this Act to cease the violation and correct it by a statutory deadline. The regulator may publish a public notice of the violation. If more than 50,000 yuan of illegal business income is obtained through the violation, the local business regulator may impose a penalty of up to 20% of that income. If no illegal business income is obtained or if the amount obtained is less than 50,000 yuan, the regulator may impose a penalty of up to 10,000 yuan.

Section 53 The local business regulator shall order the correction of any violation of § 14(e) of this Act and impose a penalty of up to 100,000 yuan.

Section 54 A party dissatisfied with the Trademark Office’s decision to cancel or uphold a trademark registration may appeal to the Board within 15 days of receiving notice of the decision. The Board shall issue a written decision within 9 months of receiving the appeal and notify the party. The cabinet-level business regulator may grant an extension of 3 months for exceptional circumstances. A party dissatisfied with the Board’s decision may file suit within 30 days of receiving the notice.

Section 55 A cancellation decision of the China Trademark Office or the Board becomes effective if no appeal or civil action is filed by the statutory deadline.

The Trademark Office shall then publish notice of the cancellation, and the registrant’s exclusive rights in the mark shall terminate on the publication date.

Chapter 7 Protection of Exclusive Rights in Registered Trademarks

Section 56 The exclusive rights in a registered trademark apply only to the registered mark and the goods for which it is registered.

Section 57 The following acts infringe the exclusive rights in a registered trademark:

(a) Using a mark identical to a registered trademark on identical goods without the registrant’s consent;

(b) Using a mark identical or similar to a registered trademark on identical or similar goods in a manner likely to cause confusion without the registrant’s consent;

(c) Selling goods that bear a mark that infringes a registered trademark;

(d) Counterfeiting or manufacturing a registered trademark without the registrant’s consent, or selling counterfeit or unlicensed marks;

(e) Replacing a registered mark without the registrant’s consent and selling goods bearing the altered mark;

(f) Intentionally facilitating or otherwise aiding an act of trademark infringement;

(g) Any other act that violates a registrant’s exclusive trademark rights.

Section 58 Unauthorized use of another party’s registered trademark or of an unregistered famous mark in a business name in a manner likely to cause confusion constitutes unfair competition and shall be subject to enforcement pursuant to the Antitrust Act of the People’s Republic of China.

Section 59 A trademark registrant shall not prevent others from the fair use of a generic name, graphic, model, or other descriptive element in the mark that directly identifies the quality, main raw materials, features, use, weight, quantity, geographic origin, or other characteristic of the designated goods.

A trademark registrant shall not prevent others from the fair use of a three-dimensional shape registered as a mark when the shape results solely from the nature of the goods, or is necessary to achieve a technical result or adds substantial value to the goods.

A trademark registrant shall not prevent a prior user from continuing to use an identical or similar mark on identical or similar goods when the prior user began using the mark before the registrant filed for registration and the mark has gained public recognition. However, the trademark registrant may require the prior user to add distinguishing elements to the mark to prevent consumer confusion.

Section 60 An infringement of a registered trademark under § 57 of this Act shall first be resolved through negotiation between the parties. If no settlement is reached or if a party refuses to negotiate, the registrant or an interested party may file a civil action in court or request enforcement by the business regulator.

Upon a finding of infringement, the business regulator shall order the infringing party to immediately cease the unauthorized use and shall confiscate and destroy the infringing goods, as well as any equipment used to manufacture the infringing goods or counterfeit the registered mark. If the infringement generates more than 50,000 yuan in illegal business income, the business regulator may impose a penalty of up to five times that income. If the infringement generates no or less than 50,000 yuan in illegal business income, the regulator may impose a penalty of up to 250,000 yuan. The  regulator shall impose a higher penalty upon a second violation within five years or for any other major violation. The business regulator shall order a seller to stop selling goods that infringe a registered trademark if the seller was unaware of the infringement and can prove that it purchased the goods lawfully and identifies the supplier.

A party that seeks damages for trademark infringement may request mediation before the business regulator or bring a civil action pursuant to the Civil Procedure Act of the People’s Republic of China. If mediation does not result in an agreement or the settlement agreement is not performed, either party may file a civil action pursuant to the Civil Procedure Act.

Section 61 The business regulator shall investigate all trademark infringement matters, and any alleged crimes shall be referred to law enforcement for prosecution pursuant to law.

Section 62 A county business regulator or its parent agency may exercise the following powers upon receiving relevant evidence or reports of wrongdoing while investigating an alleged trademark infringement:

(a) interview the parties and investigate the details of the alleged infringement;

(b) review and copy contracts, tax receipts, accounting records, and other supporting documents;

(c) conduct on-site inspections at premises relevant to the alleged infringement activity; and

(d) inspect any articles relevant to the alleged infringement, and sequester or confiscate items that have probative value as evidence of trademark infringement.

All parties must cooperate with the investigation and may not obstruct or refuse compliance.

The business regulator may suspend a trademark infringement investigation if a dispute over trademark ownership arises or if the right holder files a civil action for infringement during the investigation. The investigation shall resume or be concluded once the matter prompting the suspension is resolved.

Section 63 Damages for trademark infringement shall be calculated based on the actual losses suffered by the registrant. If that loss cannot be proved, damages equal to the infringer’s profit shall be awarded. If neither amount can be determined, damages may be calculated by multiplying the licensing fee for the mark by a reasonable factor. Enhanced damages of one to five times the amount calculated under this Section may be awarded based on the severity of the violation when the infringement is willful. Damages awarded for trademark infringement shall also include the registrant’s reasonable costs of enforcement.

A registrant that seeks damages for trademark infringement shall make reasonable efforts to present supporting evidence. The court may order the alleged infringer to produce any evidence it holds, including accounting records. If the infringer fails to comply or submits false records or information, the court shall determine damages based on the registrant’s claim and the evidence submitted.

If actual losses, infringement profits, or license fees cannot be calculated, the court shall award damages of up to 5,000,000 yuan based on the severity of the infringement.

The court hearing the infringement action may order destruction of all infringing goods upon the registrant’s request unless exceptional circumstances warrant otherwise. The court shall also order destruction of all materials or equipment primarily used to manufacture the infringing goods without indemnifying the infringer or prohibit those materials and equipment from entering commerce under exceptional circumstances.

Goods that bear a counterfeit trademark may not enter commerce merely by removing the infringing mark.

Section 64 A China court may order the trademark registrant to provide evidence of the mark’s use during the three years preceding the proceedings if the registrant claims damages and the alleged infringer raises the defense that the registrant did not use the mark. An infringer shall not be liable for damages if the registrant fails to provide such evidence or otherwise show loss.

A seller of infringing goods shall not be liable for damages if it was unaware of the infringement and can prove that it purchased the goods lawfully and identifies the supplier.

Section 65 A trademark registrant or interested party may petition the court for a preliminary injunction to stop the infringement and a temporary restraining order to preserve the infringer’s assets before filing an action when it can prove that actual or imminent trademark infringement could cause irreparable harm and immediate relief is required.

Section 66 A trademark registrant or interested party may petition the court for a temporary restraining order compelling preservation of evidence that is likely to be destroyed or become unavailable.

Section 67 An infringer that uses an identical mark on identical goods without authorization shall indemnify the trademark registrant for all resulting losses and shall be subject to criminal prosecution if the act constitutes a crime.

An infringer that counterfeits or manufactures a registered mark without authorization or sells a counterfeit or unlicensed trademark shall indemnify the registrant for all resulting losses and shall be subject to criminal prosecution if the act constitutes a crime.

An infringer that knowingly sells goods bearing a counterfeit registered trademark shall indemnify the registrant for all resulting losses and shall be subject to criminal prosecution if the act constitutes a crime.

Section 68 The business regulator shall issue a warning, order corrective action, or impose a fine of 10,000 to 100,000 yuan on any trademark service provider that engages in the following conduct; principal executives and employees directly involved in the misconduct shall be subject to a warning and a fine of 5,000 to 50,000 yuan, and may face criminal prosecution if their conduct constitutes a crime:

(a) forgery or falsification of legal documents, seals, or signatures, or the use of forged or falsified legal documents, seals, or signatures in trademark matters;

(b) solicitation of clients through disparagement of another trademark service provider or unlawful disruption of the market integrity for trademark agent services; and

(c) violations of §§ 4, 19(c), or 19(d) of this Act.

The business regulator shall record the trademark service provider’s misconduct in its credit profile. For a material violation, the China Trademark Office or the Board shall suspend acceptance of the provider’s filings and publish a notice of the suspension.

A trademark service provider that infringes a client’s rights in bad faith is civilly liable under applicable law. The industry self-regulatory organization shall discipline such trademark service provider pursuant to its articles of association.

Applications filed in bad faith are subject to administrative penalties, including warnings or fines, proportionate to the severity of the violation. Courts shall impose sanctions upon parties that pursue trademark litigation in bad faith pursuant to applicable law.

Section 69 Employees of government agencies involved in trademark registration, administration, or adjudication shall remain impartial, honest, self-disciplined, and professional.

Employees of the China Trademark Office, the Board, and any other government agency involved in trademark registration, administration, or adjudication shall not provide trademark representation services or engage in any related commercial activity.

Section 70 The business regulator shall establish and maintain an internal oversight system to ensure that employees involved in trademark registration, administration, or adjudication comply with all applicable laws and disciplinary requirements.

Section 71 An employee of a government agency responsible for trademark registration, administration, or adjudication who neglects their duties, abuses authority, engages in favoritism, violates the law in connection with any trademark registration, administration, or adjudication, or accepts property or other improper benefits from a party shall be prosecuted if the violation constitutes a crime. If the conduct is not criminal, the employee shall be subject to administrative discipline pursuant to law.

Chapter 8 Miscellaneous

Section 72 Trademark registration or other trademark filings are subject to fees, and the specific fee schedules shall be determined separately.

Section 73 This Act shall take effect on March 1, 1983. The State Council Trademark Administrative Regulations issued on April 10, 1963, are repealed.

Any conflicting trademark administrative regulation shall become void. Trademarks registered prior to the enactment of this Act shall remain valid under their original registrations.

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See Trademarks FAQ to learn more about how trademarks work in China

This Act was translated to American English from the following government publication:

“中华人民共和国商标法(2019年修正)”

https://www.cnipa.gov.cn/art/2019/7/30/art_95_28179.html

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