The exclusive right to use a registered trademark is limited to the trademark which has been approved for registration and to the goods in respect of which the use of the trademark has been approved.

 

Any of the following acts shall be an infringement of the exclusive right to use a registered trademark:

 

◇ using a trademark that is identical with or similar to a registered trademark in respect of the same or similar goods   without the authorization of the trademark registrant;

◇ selling goods that infringe the exclusive right of use of a registered trademark;

◇ counterfeiting, or making, without authorization, representations of a registered trademark of another person, or selling such representations of a registered trademark as were counterfeited, or made without authorization;

◇ altering another party's registered trademark, without authorization, and selling goods bearing such an altered trademark;

◇ causing, in other respects, prejudice to the exclusive right of another person to use a registered trademark, which includes:

◇ using any signs which are identical with or similar to another person's registered trademark as the name of the goods or decoration of the goods on the same or similar goods, thus misleading the public;

◇ intentionally providing facilities such as storage, transport, mailing, concealing, etc. for the purpose of infringing another person exclusive right to use a registered trademark.

 

Where a dispute arises after a party commits any of the above acts to infringe the exclusive right to use a registered trademark, the parties involved shall settle the dispute through consultation.  Where the parties refuse to pursue consultation or where consultation has failed, the trademark registrant or any interested party may institute legal proceedings with the people's court, or request the administrative authority for industry and commerce for actions.

 

Where a registered trademark consists of the generic name, design or model of the goods in question, or directly shows the quality, main raw materials, functions, intended purposes, weight, quantity or other characteristics of the goods in question, or consists of geographical names, the proprietor of the exclusive right to use the registered trademark shall have no right to prohibit the fair use thereof by another person.

 

 

Where the exclusive right to use a registered trademark is infringed upon, each and every person may lodge a complaint with or report the case to the authority of administration for industry and commerce.

 

Where a complaint of the infringement of the exclusive rights to use registered trademarks is filed, the following documents shall be submitted:

 

◇ the Letter of Complaint, which shall be sealed or signed by the complainant; in case of a foreign complainant, the document may be prepared by its agent;

◇ the copy of trademark registration certificate or other document certifying ownership;

◇ where a trademark agent is entrusted, a Power of Attorney signed by the complainant shall be notarized; in case of a foreign complainant, the POA shall be legalized after notarization;

◇ the complainant shall authenticate the suspected infringing goods (fake or genuine), and submit the original authentication letter to the administrative authority for industry and commerce for record; where it is necessary, the administrative authority for industry and commerce may require the complainant to make notarization (notarization/legalization) of the authentication letter.

 

 

The administrative authority for industry and commerce at or above the county level may, based on the obtained evidence suspected of illegal conduct or information supplied by a member of the public, exercise the following powers in investigating activities suspected of having infringed upon another party's exclusive right to use a registered trademark:

 

◇ to inquire of the interested parties about the case; to investigate into such circumstances as involved infringement upon other parties' exclusive right to use a registered trademark;

◇ to examine or reproduce the interested party's contracts, invoices and account books and other materials as involved infringement upon other parties' exclusive right to use a registered trademark;

◇ to conduct an on-site inspection of the premises where the party has carried out acts allegedly infringing upon another party's exclusive right to use a registered trademark;

◇ to check up such articles as relate to the infringing act and may seal or take into custody articles which are proven to have infringed upon another party's exclusive right to use a registered trademark.

 

The administrative authority for industry and commerce shall, upon determining the trademark infringement has taken place, order the infringer to immediately stop the infringing act, confiscate and destroy the infringing goods and any instruments specifically used to manufacture the infringing goods and counterfeit representations of registered trademarks, and even impose a fine.

 

The amount of a fine imposed on an act infringing the exclusive right to use a registered trademark shall be not more than three times of the volume of the illegal business.  If it is impossible to calculate the volume of the illegal business, the amount of the fine shall be not more than CNY 100,000.

 

Where the party is dissatisfied with the decision of the administrative authority for industry and commerce, he or it may, within 15 days from receipt of the notification, institute legal proceedings with the people's court in accordance with the Administrative Procedural Law of the People's Republic of China.  If there are no legal proceedings instituted or no performance of the decision at the expiration of the said period, the administrative authority for industry and commerce may request the people's court for compulsory execution thereof.  Where a party so requests, the administrative authority for industry and commerce handling a dispute may mediate in settling the amount of damages.  Where mediation fails, a party may institute legal proceedings with the people's court in accordance with the Civil Procedural law of the People's Republic of China.

 

Where a crime is suspected to have been committed, the case shall be promptly transferred to the judicial authority to be dealt with in accordance with the law.