Chapter VII Protection of the Exclusive Right to the Use of a Registered Trademark

Article 51 The exclusive right to the use of a registered trademark shall be limited to trademarks which are registered upon approval and to goods the use of a trademark on which is approved.

Article 52 Any of the following acts shall constitute an infringement on the exclusive rights to the use of a registered trademark:

(1)using a trademark that is identical with or similar to the registered trademark on the same or similar goods without permission of the owner of the registered trademark;

(2)selling goods that infringe on the exclusive right to the use of a registered trademark;

(3)counterfeiting, or making without authorization, representations of another person's registered trademark, or selling such representations;

(4)altering a registered trademark without permission of its owner and selling goods bearing such an altered trademark on the market; and

(5)impairing in other manners another person's exclusive right to the use of its registered trademark.

Article 53 When a dispute arises as a result of any of the acts infringing upon another person's exclusive right to the use of a registered trademark as mentioned in Article 52 of this Law, the parties involved shall settle the dispute through consultation. Where the parties are not willing to do so or where consultation fails, the owner of the registered trademark or any interested party may bring a suit in a People's Court or request the administrative department for industry and commerce to handle the matter. When the said department determines that the fact of infringement is established, it shall order the infringer to cease infringing upon that right immediately, and it shall confiscate and destroy the goods involved and the tools specially used to manufacture the said goods and counterfeit the representations of the registered trademark, and may also impose a fine. Where the party is dissatisfied with the decision of the department, he may, within 15 days from the date the notification is received, bring a suit in a People's Court in accordance with the Administrative Procedure Law of the People's Republic of China. Where the infringer neither brings a suit at the expiration of the time limit nor complies with the decision, the administrative department for industry and commerce may request the People's Court to enforce its decision. The administrative department for industry and commerce that handles the dispute may, as requested by the party, mediate as a settlement on the amount of compensation for the infringement of the exclusive right to the use of the trademark. Where mediation fails, the party may, in accordance with the Civil Procedure Law of the People's Republic of China, bring a suit in a People's Court.

Article 54 The administrative department for industry and commerce shall have the power to investigate any act infringing upon the exclusive right to the use of a registered trademark. Where a crime is suspected to have been committed, it shall promptly transfer the case to a judicial department for handling in accordance with law.

Article 55 When an administrative department for industry and commerce at or above the county level, on the basis of the evidence or information, obtained for a suspected violation of law, conducts investigation into a suspected infringement of another person's exclusive right to the use of a registered trademark, it may exercise the following functions and powers:

(1)questioning the parties concerned to find out the facts regarding the infringement of another person's exclusive right to the use of a registered trademark;

(2)checking and reproducing the parties' contracts, invoices, account books, and other materials relating to the infringement;

(3)conducting on-the-spot inspection of the premises where the suspected party carries out activities infringing upon another person's exclusive right to the use of a registered trademark; and

(4)inspecting articles involved in the infringement; sealing or seizing the articles that are proven to been used for infringing upon another person's exclusive right to the use of a registered trademark.

When the administrative department for industry and commerce exercises the functions and powers provided for in the preceding paragraph in accordance with law, the parties shall assist and cooperate with it and may not refuse to do so or stand in its way.

Article 56 The amount of compensation for infringement of the exclusive right to the use of a trademark shall be the amount of the profits that the infringer has earned as a result of the infringement during the period of the infringement, or the amount of the losses that the infringed has suffered as a result of the infringement during the period of the infringement, including any reasonable expenses the infringed has paid in its effort to put an end to the infringement.

Where the profits earned by the infringer or the losses suffered by the infringed as a result of the infringement, as mentioned in the preceding paragraph, are hard to determine, the People's Court shall, on the basis of the circumstances of the infringement, decide to make it not more than RMB 500,000 yuan.

Where a person unknowingly sells goods which represent an infringement upon another person's exclusive right to the use of a registered trademark but can prove that they are obtained by himself lawfully and can identify the supplier, he shall not bear the liability to pay compensation.

Article 57 Where the owner of a registered trademark or any interested party has evidence proving that another party is committing or will soon commit an act that infringes upon his exclusive right to the use of its registered trademark and that, unless it is stopped promptly, will cause irreparable harm to his legitimate rights and interests, he may, before filing a lawsuit, apply to the People's Court for ordering the cease of the act and for adopting measures to preserve his property.

In handling the application mentioned in the preceding paragraph, the People's Court shall apply the provisions in Articles 93 through 96 and in Article 99 of the Civil Procedure Law of the People's Republic of China.

Article 58 In order to put a stop to an infringement, the owner of a registered trademark or the interested party may, under conditions where evidence may be missing or become unobtainable in future and prior to filing a lawsuit, apply to the People's Court for preserving the evidence.

The People's Court shall make a ruling within 48 hours from the time it accepts the application. Once a ruling to have the evidence preserved is made, it shall be enforced immediately.

The People's Court may order the applicant to provide a surety. Where no surety is provided, the People's Court may reject the application.

Where the applicant fails to bring a lawsuit within 15 days after the People's Court adopts the preservation measure, the People's Court shall rescind the measure.

Article 59 Where a person, without permission of the owner of a registered trademark, uses a trademark that is identical with the owner's on the same kind of goods, which constitutes a crime, he shall, in addition to compensating losses suffered by the infringed, be investigated for criminal responsibility in accordance with law.

Anyone who counterfeits or makes without permission the representations of another person's registered trademark or sells such representations which constitutes a crime, shall, in addition to compensating the losses suffered by the infringed, be investigated for criminal responsibility in accordance with law.

Anyone who knowingly sells goods bearing counterfeit registered trademarks, which constitutes a crime, shall, in addition to compensating the losses suffered by the infringed, be investigated for criminal responsibility in accordance with law.

Article 60 Functionaries of State organs engaged in trademark registration, administration, and review shall be impartial in implementing the law, honest and self-disciplined, and devoted to their duties, and shall provide services with civility.

No functionaries of State organs working in the Trademark Office and the Trademark Review and Adjudication Board or engaged in trademark registration, administration, and review may work for trademark agencies or engage in the manufacture or marketing of goods.

Article 61 Administrative departments or industry and commerce shall establish and improve an internal supervision system to supervise and inspect the way State organ functionaries in charge of trademark registration, administration, and review implement laws and administrative regulations and observe discipline.

Article 62 Where a State organ functionary working in trademark registration, administration, and review neglects his duty, abuses his power, and engages in malpractice for personal gain, violates the law in trademark registration, administration, and review, accepts money or things of value from a party, or seeks illegitimate interests, and where the case is so serious as to constitute a crime, he shall be investigated for criminal responsibility in accordance with law. Where the case does not constitute a crime, he shall be given administrative sanction in accordance with law.