China’s New Trademark Law
The
Standing Committee of National People’s Congress of the
People’s Republic of China has recently adopted the
decision of revision of the “Trademark Law of the PRC”
(“the Law”). The
revised Trademark Law of the PRC (“the Revised Law”)
will become effective on 1st December 2001.
The major changes brought about by the Revised Law
are discussed below: -
Registration
1.
Three-dimensional signs
Under
the existing law, there are no provisions dealing with
three-dimensional signs.
The Revised Law specifically states that
three-dimensional marks can be filed for registration
provided that the mark can serve to distinguish the goods
of the proprietor from goods of others. However, three-dimensional
shapes that are determined by the nature of the goods or
that are demanded to achieve certain technological result
are not registrable.
2.
Distinctiveness through use
Prima
facie indistinctive mark will be accepted for registration
under the Revised Law if it can be shown that the mark has
become distinctive through use.
3.
Protection of well-known
trademarks
Apart
from protection from the Anti-Unfair Competition Law and
Anti-Unfair Competition Regulations of the PRC, the
Revised Law specifically provides for prohibition of
registration and use of a mark which is an imitation of a
well-known trademark. Where the well-known mark is
not registered in China, the protection is limited to
similar goods. Where the well-known is registered in
China, the protection is extended to dissimilar goods
also.
4.
Enlargement
of the right of priority
In
addition to recognition of the right of priority in
accordance with the Paris
Convention or other international treaty or principle of
reciprocity, the Revised Law recognizes the entitlement of
right of priority derived from a situation where a
trademark was first used at an international exhibition
sponsored or recognized by the Chinese Government and the
application for registration is filed within 6 months from
the date of exhibition.
Registration/Opposition/Cancellation
5.
Rights of further appeal
In
the existing trademark law, if any party is dissatisfied
with the decision of trademark office regarding a trade
mark application or an opposition/cancellation proceeding,
he can apply for a review with the Trademark Review and
Adjudication Board (“the Board”). The
decision of the Board is final and no further action can
be taken for reviewing the decision. The Revised Law
provides that a party can in future appeal to the
People’s Court if he is dissatisfied with the decision
of the Board.
Infringement
6.
Injunction
Order
The
Revised Law expressly provides that a trademark owner can
complain to the People’s Court as well as the local
administrative authority in a case of infringement.
It sets out clearly what orders can be granted by
the administrative authority which include an injunction
order, a destruction order of the infringing goods or
tools and a fine. A
party dissatisfied with the decision of the local
administrative authority will have the right to appeal to
the People’s Court.
7.
Pre-action measures
The
Revised Law gives the trademark proprietor or interested
parties a right to request the People’s Court to make an
order to stop infringement acts and to preserve property
prior to instituting proceedings if the applicant can
satisfy the Court that unless the infringement acts are
stopped immediately, he would suffer irreparable damage.
This remedy will be similar to an ex-parte
injunction order.
The above is only a general discussion of the
more significant changes made to the PRC Trademark Law.
The Implementing Regulations under the Trademark Law of PRC
will be revised also and the Revised Regulations are expected to be issued in December 2001.
