Trademark Protection

SCOPE OF TRADEMARK RIGHT

A trademark registrant shall be entitled to the exclusive right to use the registered trademark upon verification and approval of the Trademark Office. The protection scope of trademark is:
1. Right of Use: A trademark registrant shall be entitled to use such trademark within the scope approved and in the relevant commercial activities.
2. Exclusive Right: A trademark registrant shall be entitled to the exclusive right of the registered trademark. Any other one shall be prohibited to use trademark which is same with or similar to the registered trademark on the same or similar product or service.
3. Right of Licensing: A trademark registrant, pursuant to the provisions of laws, shall have the right to license other one to use its registered trademark by Licensing Agreement.
4. Restraining Power: Where registered trademark or similar trademark is used on the same or similar product without consent of trademark registrant, the trademark registrant shall be entitled to cease such action.
5. Mortgage Right: The trademark registrant is entitled to secure a mortgage using its registered trademark during the business activities.
6. Right of Investment: The trademark registrant shall, pursuant to the provisions of law and statutory procedures, use its registered trademark as intangible properties to invest.
7. Right of Assignment: The trademark registrant shall be entitled to transfer its right to others with consideration or without charge.
8. right of succession: As intangible assets, trademarks shall be succeeded by legal heritors in certain order. 
II. Reorganization of Trademark Infringement
Any of the following acts shall be deemed infringement of the exclusive right to use a registered trademark:
1. Use of a trademark that is the same as or similar to a registered trademark for identical or similar goods without the permission of the trademark registrant;
2. An act of knowingly selling goods bearing a counterfeited registered trademark
3. Counterfeit or unauthorized production of the label of another's registered trademark, or sale of any such label that is counterfeited or produced without authorization;
4. Marketing goods which were known or ought to have been known to have infringed another person's right to exclusive use of a registered trademark;
5. Using words and designs which are identical or similar to another's registered trademark as the designation or decoration on the same kind of goods or similar goods and which may sufficiently mislead the public;
6. Intentionally providing facilities for storage, transport, mailing or concealing in favor of an infringement of another person's right to exclusive use of a registered trademark.
III.Protection Methods of Trademark Right
1. Administrative Protection
2. Judicial Protection
When the right to exclusive use of a registered trademark is infringed, the party whose right has been infringed may also directly bring an action to the People’s Court. The legal interests of exclusive right owner of trademark will be protected by the legal proceedings in the People’s Court.
（1）Jurisdiction
Those involving dissatisfaction with a reexamination decision or ruling rendered by the Trademark Review and Adjudication Board of the State Council's administrative department for industry and commerce;
Those involving dissatisfaction with a specific trademark-related administrative act conducted by an administrative department for industry and commerce;
Those involving a dispute over the ownership of the exclusive right to use a trademark;
Those involving a dispute over the infringement of the exclusive right to use a trademark;
Those involving a dispute over a contract for the transfer of the exclusive right to use a trademark;
Those involving a dispute over a trademark license contract;
Those involving an application for pre-litigation cessation of infringement of the exclusive right to use a trademark;
Those involving an application for pre-litigation property preservation;
Those involving an application for pre-litigation evidence preservation; and
Other trademark cases
（2） Court with Jurisdiction
Cases involving dissatisfaction with a reexamination decision or ruling rendered by the Trademark Review and Adjudication Board of the State Council's administrative department for industry and commerce shall be subject to the jurisdiction of Beijing No.1 intermediate People's Courts.
Cases involving dissatisfaction with a specific trademark-related administrative act conducted by an administrative department for industry and commerce shall be subject to the jurisdiction prescribed by the relevant provisions of Administrative Procedure Law.
（3）Limitation of Action
The statute of limitations for filing a lawsuit against infringement of the exclusive right to use a registered trademark shall be two years, commencing from the date on which the registrant of the trademark or an interested right owner becomes aware of or should be aware of the infringement.
If the time when the trademark registrant or the interested right owner files such a lawsuit is beyond the said two-year period, and the infringement continues to exist at the time when the lawsuit is filed, the relevant people's court shall, within the validity term of the exclusive right to use that registered trademark, rule to order the defendant to cease the infringement, in which case the commencement year for calculating the compensation sum for the damage caused by the infringement shall be two years prior to the filing of the lawsuit by the right owner with the people's court
(4) Pre-litigation Measures
A trademark registrant or interested person shall file to the People’s Court for cessation of infringement or pre-litigation property preservation, where the trademark registrant is reasonable to prove that other people is infringing or will infringe the exclusive right of trademark and the irreparable damage that would be caused to the rights and interests of the trademark registrant or the interested party if the infringement is not inhibited in a timely manner.
3. Administrative Complains of Trademark Infringement
IV.Liability of Trademark Infringement
The infringer of exclusive right of trademark shall be liable for the followings:-
1. Administrative Punishment
(1) Order to cease the infringement immediately;
(2) confiscate and destroy the infringing goods and tools specifically used to produce the infringing goods and to counterfeit the labels of registered trademarks；
(3) The fine to be imposed on the infringer shall be not more than three times the illegal turnover; if the illegal turnover cannot be calculated, the fine to be imposed on the infringer shall be not more than RMB100, 000.
2. Civil Punishment
(1) Immediate cessation of infringement:
(2) Indemnify the trademark registrant all the loss and damages caused by the infringement of exclusive right of trademark.  
3. Criminal Punishment
Where an act of use of a trademark identical to a registered trademark for the same goods without the consent of the trademark registrant has constituted a criminal offense, the infringer shall, in addition to compensating the infringed party for losses incurred, be subject to criminal liability in accordance with the law.
Where an act of counterfeiting or producing, without authorization, labels of another's registered trademark, or selling of trademark labels that were counterfeited or produced without authorization has constituted a criminal offense, the infringer shall, in addition to compensating the infringed party for losses incurred, be subject to criminal liability in accordance with the law.
Where an act of knowingly selling goods bearing a counterfeited registered trademark has constituted a criminal offense, the infringer shall, in addition to compensating the infringed party for losses incurred, be subject to criminal liability in accordance with the law.
V.Special Protection of Well-Known Trademark
1. Definition of Well-known Trademark
Well-known trademarks shall mean the trademarks that are widely known to the relevant public and have a relatively high reputation.
2. Special Protection of Well-known Trademark
(1)   Unregistered Well-Known Trademark
In the event of an application for registration of a trademark that is a reproduction, imitation, or translation of another's well-known trademark not registered in China on same or similar goods, and consequentially is likely to create confusion, the application shall be rejected and the trademark shall be prohibited from use.
(2)   Registered Well-Known Trademark
In the event of an application for registration of a trademark that is a reproduction, imitation, or translation of another's well-known trademark registered in China on different or dissimilar goods, and consequentially is likely to create confusion and cause damage to the interests of the registrant for the well-known trademark, the application shall be rejected and the trademark shall be prohibited from use. Furthermore, the right owner of well-known trademark shall also have the right to prohibit others from use or register such on un-similar products and use the well-known trademark as part of business name.
VI.Relevant Laws and Regulations
1. Trademark Law of People’s Republic of China
2. Implementing Regulations for the "Trademark Law of the People's Republic of China"
3. Interpretation of the Supreme People's Court on the Property Preservation Carried out by People's Courts over the Rights to Registered Trademarks
4. Interpretation of the Supreme People's Court on Issues Concerning the Jurisdiction over and Scope of the Application of Law in the Trial of Trademark Cases
5. Interpretation of Supreme People's Court on Issues Concerning the Application of Law in Pre-Litigation Cessation of Infringement of the Exclusive Right to Use a Registered Trademark and Evidence Preservation
6. Provisions on the Recognition and Protection of Well-Known Trademarks.
 
 

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