Provisions on Protection of Well-know Marks (Issued
by the State Administration for Industry and Commerce On April
17, 2003)
Article 1 These provisions are 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
for the Trademark Law of the People¡¯s Republic of China (hereinafter
referred to as the Implementing Regulations).
Article 2 For the purpose of these Provisions£¬a well-known mark
refers to a mark that is widely known to the relevant sectors
of the public and enjoys a relatively high reputation in China.
Relevant sectors of the public shall include consumers of the
type of goods and /or services to which the mark applies, operators
who manufacture the said goods or provide the said services, and
sellers and other persons involved in the channels of distribution
of the type of goods and/or services to which the mark applies.
Article 3 The following may serve as evidences to prove that
a mark is well-know:
(1) documents concerning the degree of knowledge or recognition
of the mark in the relevant sector of the public;
(2) documents concerning the duration of the use of the mark,
including those related to the history and scope of the use and
the registration of the mark;
(3) documents concerning the duration, extent and geographical
area of any promotion of the mark, including the approach to,
geographic area of , the type of media for and the amount of advertisements
for the promotion of the mark;
(4) documents concerning the record of successful enforcement
of rights in the mark, including the relevant documents certifying
the mark in question was once protected as a well-known mark in
China or any other country/region;
(5) other evidences certifying that the mark is well-known, including,
in the past 3 years, the outputs, sales volumes, sales incomes,
profits and taxes and sales regions etc. of the principal goods
to which the mark applies.
Article 4 Where any interested party believes that another party¡¯s
preliminarily examined and published mark violates the provision
of Article 13 of the Trademark Law, he or it may, according to
the provisions of the Trademark Law and the Implementing Regulations,
file an opposition with the Trademark Office and submit relevant
documents certifying that his or its mark is well known.
Where any interested party believes that another party¡¯s registered
mark violates the provision of Article 13 of the Trademark Law,
he or it may, according to the provisions of the Trademark Law
and the Implementing regulations, request the Trademark Review
and Adjudication Board to cancel the registered mark in question
and submit relevant documents certifying that his or its mark
is well known.
Article 5 In the process of trademark administration, where any
interested party believes that another party¡¯s use of a mark falls
within the circumstances provided for in Article 13 of the Trademark
Law and requests for the protection of his or its well-known mark,
he or it may file a request in writing for the prohibition of
the alleged use with the administrative authorities for industry
and commerce at or above the city (prefecture or autonomous prefecture)
level of the place where the case arises, and submit relevant
documents. Meanwhile, the interested party shall send a copy to
the administrative authority for industry and commerce of the
province where he or it has domicile.
Article 6 In the process of trademark administration, the administrative
authority for industry and commerce shall, on receiving an application
for the protection of a well-known mark, examine the case as to
whether it falls within the following circumstances under Article
13 of the Trademark Law:
(1) where another person¡¯s unauthorized use of a mark that is
identical with or similar to an interested party¡¯s well-known
mark not registered in China on identical or similar goods is
liable to create confusion;
(2) where another person¡¯s unauthorized use of a mark that is
identical with or similar to an interested party¡¯s well-known
mark registered in China on non-identical or dissimilar goods
is liable to mislead the public, and the interests of the registrant
of the well-known mark are likely to be damaged by such use;
In respect of cases held to have fallen within the above-mentioned
circumstances, the city (autonomous prefecture or autonomous prefecture)
administrative authority for industry and commerce shall, within
15 workdays from the date of acceptance of the request of the
interested party, report and send all the documents of the case
to the administrative authority for industry and commerce of the
province (autonomous region or municipality directly under the
Central Government) where it is located, and issue a notification
of acceptance of the case to the interested party. The provincial
(autonomous region or municipality directly under the Central
Government) administrative authority for industry and commerce
shall, within 15 workdays from the date of acceptance of the request
of the interested party, report and send all the documents of
the case to the Trademark Office. If the administrative authority
for industry and commerce of the province where the interested
party has his or its domicile holds that the case falls within
the above-mentioned circumstances, it may also report in writing
the case to the Trademark Office.
Cases held not to fall within the said circumstances shall be
dealt with timely according to the relevant provisions of the
Trademark Law and its Implementing Regulations.
Article 7 The administrative authority for industry and commerce
of the province (autonomous region or municipality directly under
the Central Government) shall examine the documents of cases concerning
the protection of well-known marks reported and sent by city (prefecture
or autonomous prefecture) administrative authorities for industry
and commerce within its administrative region.
Where a case is held to fall within the circumstance of paragraph
1 of Article 6 under these provisions, the provincial (autonomous
region or municipality directly under the Central Government)
administrative authority for industry and commerce shall report
and send it to the Trademark Office within 15 workdays from the
date of its receipt of the case documents from the city (prefecture
or autonomous prefecture) administrative authority for industry
and commerce within its administrative region.
Where a case is held not to fall within the circumstance of paragraph
1 of Article 6 under these provisions, the provincial (autonomous
region or municipality directly under the Central Government)
administrative authority for industry and commerce shall return
the case to the authority that initially accepts it and the latter
shall deal with the case timely according to the relevant provisions
of the Trademark Law and its Implementing Regulations.
Article 8 The Trademark Office shall make determination within
6 months from the date of the receipt of the relevant documents
of a case, notify the result of the determination to the provincial
(autonomous region or municipality directly under the Central
Government) administrative authority for industry and commerce
of the place where the case arises and send duplication thereof
to the provincial (autonomous region or municipality directly
under the Central Government) administrative authority for industry
and commerce of the place where the interested party has his or
its domicile.
The Trademark Office shall return the documents of the case,
except those certifying the mark is well-known, to the administrative
authority for industry and commerce of the province (autonomous
region or municipality directly under the Central Government)
where the case arise.
Article 9 Where a mark is not determined as well-known, the interested
party shall not file a new application for the determination of
the same mark on the basis of the same facts and grounds within
one year from the date on which the determination is made.
Article 10 When determining a well-known mark, the Trademark
Office or the Trademark Adjudication Board shall comprehensively
consider each and every factor under Article 14 of the Trademark
Law, but it shall not be the prerequisite that the mark shall
satisfy all the factors prescribed therein.
Article 11 In the protection of well-known marks, the Trademark
Office, the Trademark Review and Adjudication Board and the local
administrative authorities for industry and commerce shall take
into account of the mark¡¯s distinctiveness and the extent of its
being well-known.
Article 12 When requesting for the protection of his or its mark
according to Article 13 under the Trademark Law, an interested
party may furnish the record of the mark once being protected
as a well-known one by the relevant competent authority in China.
Where the scope of protection of an accepted case is substantially
the same as that of a mark being protected as a well-known mark
and where the opposite party raises no opposition to the said
mark¡¯s being well-known , and where, although he raises the opposition
thereto, the opposite party cannot furnish any document certifying
that the said mark is not well-known, the administrative authority
for industry and commerce accepting the case may adjudicate or
deal with the case in the light of the conclusion of the protection
record.
Where the scope of protection of an accepted case is different
from that of a mark being protected£¬or where the opposite party
raises opposition to the said mark¡¯s being well-known , and he
furnishes documents certifying that the said mark is not well-known,
the Trademark Office or the Trademark Review and Adjudication
Board shall re-examine the documents of the well-known mark in
question and make a determination.
Article 13 Where an interested party believes that another party
has registered his or its well-known mark as an enterprise name,
which is likely to deceive or mislead the public, he or it may
apply to the competent authority for the registration of enterprise
names for the cancellation of the registration of the enterprise
name in question. The competent authority for the registration
of enterprise names shall deal with the case in accordance with
the Provisions for the Administration of the Registration of Enterprise
Names.
Article 14 The administrative authority for industry and commerce
at various levels shall enhance the protection of well-known marks,
and timely transfer cases of suspected crime of counterfeiting
trademarks to the competent authority concerned.
Article 15 The administrative authority for industry and commerce
of the province (autonomous region or municipality directly under
the Central Government) of the place where the authority handling
the case is located shall send the Trademark Office a copy of
the decision on the protection of a well-known mark.
Article 16 The administrative authority for industry and commerce
at various levels shall establish corresponding supervisory mechanisms
and formulate corresponding supervisory control measures to enhance
the supervision and inspection of the whole process for the determination
of well-known marks.
Where any member of staff who is involved in the determination
of well-known marks abuses his power, practices fraud for his
personal gains, seeks illicit interests or handles, in violation
of law, matters concerning the determination of well-known marks,
he or she shall be subject to administrative disciplinary measures
according to law. Where the case is so serious as to constitute
a crime, the person involved shall be prosecuted, according to
law, for his or her criminal liabilities.
Article 17 These provisions shall enter into force on June1,
2003. The Provisional Regulations Concerning the Determination
and Administration of well-know Marks issued by the State Administration
for Industry and Commerce on August 14 ,1996, shall be abrogated
on the same date.
