Regulations for the Implementation of Trademark Law (2010)

Transcription

1 Chapter VII Management of Trademark Use Chapter VIII Protection of the Right to Exclusive Use of Registered Trademarks Chapter IX Trademark Agency Services Chapter X Supplementary Provisions Chapter 1: General Provisions Regulations for the Implementation of Trademark Law (2010) Contents Chapter I General Provisions Chapter II Application for Trademark Registration Chapter III Review of Trademark Registration Applications Chapter IV Change, Transfer and Renewal of Registered Trademarks Chapter V International Registration of Marks Chapter VI Trademark Review and Adjudication Article 1 These Regulations are formulated in accordance with the Trademark Law of the People's Republic of China (hereinafter referred to as the "Trademark Law"). Article 2 The provisions herein on the trademarks of products are applicable to service marks. Article 3 A trademark holder who requests for the protection of its trademark as a well-known trademark in accordance with Article 13 of the Trademark Law shall submit evidence materials proving that its trademark constitutes a wellknown trademark. The Trademark Office or the Trademark Review and Adjudication Board shall determine the well-known status of the trademark pursuant to Article 14 of the Trademark Law, and according to the needs of case review or handling, as well as the evidence materials submitted by the party concerned. Article 4 Relevant parties may, in accordance with the Trademark Law and these Regulations, apply for the registration of geographical indications ("GI") prescribed by Article 16 of the Trademark Law in the form of certification marks or collective trademarks. Where a GI is registered as a certification mark, natural persons, legal persons or other organizations whose products satisfy the conditions on use of the GI may request to use the certification mark, and the organization controlling the certification mark shall approve such requests. Where a GI is registered as a collective trademark, natural persons, legal

2 persons or other organizations whose products satisfy the conditions on use of the GI may request to join the groups, associations or other organizations that use the GI as their respective collective trademark for registration, and the said groups, associations or other organizations shall accept the former as members in accordance with their respective articles of associations; alternatively, if such natural persons, legal persons or other organizations do not request to join the groups, associations or other organizations that use the GI as their respective collective trademark for registration, they may still use the GI in a justifiable manner, and the said groups, associations or other organizations are not entitled to prohibit such justifiable use. Article 5 A party who entrusts a trademark agency to apply for trademark registration or handle other trademark-related matters shall submit a power of attorney which shall specify the details and the authority of the entrustment. The power of attorney issued by a foreign national or foreign enterprise shall also specify the nationality of the principal. The principle of reciprocity shall apply to the notarization or certification procedures concerning the power of attorney issued by a foreign national or foreign enterprise and the supporting documents related thereto. Where the applicant of a trademark registration application or the transferee to a trademark transfer application is a foreign national or foreign enterprise, it shall designate, in the written application, a party within the territory of China to be responsible for receiving the subsequent legal instruments issued by the Trademark Office or the Trademark Review and Adjudication Board in relation to trademark services, in which case the Trademark Office or the Trademark Review and Adjudication Board shall serve the subsequent legal instruments in relation to trademark services on the recipient within the territory of China. For the purpose of Article 18 of the Trademark Law, foreign nationals or foreign enterprises shall refer to the foreign nationals or foreign enterprises that are without any habitual residence or place of business within Mainland China. Article 6 Applications for trademark registration or handling other trademark-related matters shall be made in Chinese. Chinese translations shall be attached to the various certificates, supporting documents and evidence materials in foreign languages that are submitted in accordance with the Trademark Law and these Regulations, failing which such certificates, supporting documents or evidence materials shall be deemed as not submitted. Article 7 Under any of the following circumstances, a staff member of the Trademark Office or the Trademark Review and Adjudication Board shall abstain, and the party concerned or an interested party may request the staff member to abstain: (1) Where the staff member is him/herself a party concerned, or is a close relative to the party concerned or the agent thereof; (2) Where the staff member is otherwise related to the party concerned or the agent thereof, which may affect impartiality; or (3) Where the staff member has an interest in the relevant application for trademark registration or for handling other trademark-related matters. Article 8 A party concerned who wishes to submit its trademark registration application and other relevant documents in the form of data messages prescribed by Article 22 of the Trademark Law shall make such submission via the Internet in accordance with the provisions of the Trademark Office or the Trademark Review and Adjudication Board. Article 9 Except under the circumstances prescribed by Article 18 herein, the date of submission by a party concerned of relevant documents or materials to the Trademark Office or the Trademark Review and Adjudication Board 2

3 shall be determined as follows: the date of submission shall prevail for documents or materials submitted in person; the sending postmark date shall prevail for documents or materials submitted by post, and in the absence of any postmark or a clear postmark date, the actual date of receipt by the Trademark Office or the Trademark Review and Adjudication Board shall prevail, unless the party concerned is able to furnish evidence to prove the actual postmark date; the date of receipt of the documents or materials for delivery shall prevail for documents or materials delivered by courier enterprises other than postal services, and in the absence of a clear date of receipt for delivery, the actual date of receipt by the Trademark Office or the Trademark Review and Adjudication Board shall prevail, unless the party concerned is able to furnish evidence to prove the actual date of receipt of the documents or materials by the courier enterprises for delivery; and, the date of entry to the electronic systems of the Trademark Office or the Trademark Review and Adjudication Board shall prevail for documents or materials submitted in the form of data messages. A party concerned who intends to send documents to the Trademark Office or the Trademark Review and Adjudication Board by post shall use postal services that provide receipts. Where a party concerned submits documents to the Trademark Office or the Trademark Review and Adjudication Board in hardcopy, the records archived by the Trademark Office or the Trademark Review and Adjudication Board shall prevail, and where such documents are submitted in the form of data messages, the database records of the Trademark Office or the Trademark Review and Adjudication Board shall prevail, unless the party concerned has evidence to prove that the records archived by, or the database records of, the Trademark Office or the Trademark Review and Adjudication Board contain errors. Article 10 Various documents of the Trademark Office or the Trademark Review and Adjudication Board may be served on the parties concerned by post, in person, in the form of data messages or by other means. The consent of the parties concerned is required if such documents are to be served in the form of data messages. Where a party concerned has entrusted a trademark agency, service of documents on the trademark agency shall be deemed as service on the party concerned. The date of service of various documents on a party concerned by the Trademark Office or the Trademark Review and Adjudication Board shall be determined as follows: the postmark date of the date of receipt by the party concerned shall prevail for documents served by post, and in the absence of any postmark or a clear postmark date, the documents shall be deemed to have been served on the party concerned 15 days after the date of sending, unless the party concerned is able to prove the actual date of receipt; the date on which the documents are given to the party concerned shall prevail for documents served in person; and, documents served in the form of data messages shall be deemed to have been served on the party concerned 15 days after the date of sending, unless the party concerned is able to prove the date of entry of the documents to its electronic systems. Where documents are unable to be served by the foregoing means, they may be served by announcement, and shall be deemed to have been served on the party concerned 30 days after the date of announcement. Article 11 The following time periods are not included in the period of trademark review or hearing: (1) The time period during which the Trademark Office or the Trademark Review and Adjudication Board serves relevant documents by announcement; (2) The time period during which a party concerned needs to furnish supplementary evidence or documents or correct documents, and the time period during which new defense shall be submitted as a result of the change of the party concerned; 3

4 (3) The time period needed for furnishing evidence of trademark use, and for consultation or balloting, where multiple applications are submitted on the same day; (4) The waiting period for priority rights to be established; and (5) During trademark review or hearing, the time period requested by the applicant in order to wait for the outcomes of the hearing of a case on prior rights. products and services. One copy of the Trademark Registration Application Form and one copy of the trademark logo shall be submitted to the Trademark Office for each trademark registration application. Where an application is submitted for registering a trademark in the form of color combinations or colored patterns, both the colored patterns and one copy of the black and white drawings are required; and if color is not specified, the black and white drawings shall be submitted. Article 12 Except under the circumstances prescribed by Paragraph 2 of this Article, the very day of commencement of the various time periods prescribed by the Trademark Law and these Regulations shall not be included in the time periods. Where a time period is calculated by year or month, the corresponding day of the last month of the time period shall be the expiry date of the time period, and in the absence of the corresponding day of the last month, the last day of that month shall be the expiry date of the time period. If the expiry date of a time period falls on a public holiday, the first working day following the public holiday shall be the expiry date of the time period. The validity period of a registered trademark prescribed by Article 39 or Article 40 of the Trademark Law shall commence from the statutory day, and expire on the day immediately preceding the corresponding day of the last month of the validity period. In the absence of the corresponding day of the last month, the last day of the very month shall be the expiry date of the validity period. Chapter 2: Application for Trademark Registration Article 13 An application for trademark registration shall be filled out and submitted in accordance with the published classification of A trademark logo shall be clear, easy to paste, and be printed on smooth and durable paper or be shown in a photo instead. The length and width of a trademark logo shall be no longer than 10 cm but no shorter than 5 cm. Where an application is submitted for registering a trademark in the form of a three-dimensional mark, the applicant concerned shall make relevant declarations in the written application, explain the use methods of the trademark, and submit a trademark logo that can be used to determine the three-dimensional shape. The trademark logo submitted shall include at least a three-view drawing. Where an application is submitted for registering a trademark in the form of color combinations, the applicant concerned shall make relevant declarations in the written application, and explain the use methods of the trademark. Where an application is submitted for registering a trademark in the form of a sound mark, the applicant concerned shall make relevant declarations in the written application, submit sound samples that meet relevant requirements, describe the sound mark under application for registration, and explain the use methods of the trademark. When describing the sound mark, the applicant shall describe the sound under application for being used as the trademark with staff or numbered musical notation, and add explanations in words thereto. The applicant shall describe relevant sounds in words if it is unable to 4

5 provide such descriptions with staff or numbered musical notation. Trademark description shall be consistent with sound samples. Where an application is submitted for registering a collective trademark or certification mark, the applicant concerned shall make relevant declarations in the written application, and submit documents proving its eligibility and rules for managing the use of the collective trademark or certification mark. The meaning of a trademark in a foreign language or a trademark that contains a foreign language shall be explained. Article 14 An applicant for trademark registration shall submit its identity proofs. The name of the trademark registration applicant shall be the same as that indicated on the identity proofs submitted. The provisions of the preceding Paragraph on the submission of identity proofs by applicants shall apply to the applications submitted by applicants to the Trademark Office for handling other trademark-related matters, such as change, transfer, renewal, objection, cancellation, etc. Article 15 The name of a product or service item shall be filled out in accordance with the category number and name under the classification of products and services. Where the name of the product or service item is not listed in the classification of products and services, the descriptions of the product or service shall be attached to the application. The trademark registration application and other relevant documents shall be typed or printed if they are to be submitted in hardcopy. Paragraph 2 of this Article shall apply to the applications for handling other trademark-related matters. Article 16 In the case of a joint application for registering the same trademark or an application for handling other matters related to a jointlyowned trademark, a representative of all applicants shall be designated in the written application, and in the absence of any designated representative, the applicant listed first in the written application shall be taken as the representative. Documents of the Trademark Office and the Trademark Review and Adjudication Board shall be served on the representative. Article 17 An applicant shall go through the formalities for change with the Trademark Office if it intends to change its name, address, agent or document recipient, or to delete any of the designated products. An applicant for trademark registration shall go through transfer formalities with the Trademark Office if it intends to transfer its trademark registration application. Article 18 The date of a trademark registration application shall be subject to the date of receipt of the application documents by the Trademark Office. Where an applicant has gone through all required trademark registration application procedures, filled out application documents and paid relevant fees as required, the Trademark Office shall accept the application and notify the applicant in writing; and where the applicant has failed to go through certain required application procedures, or failed to fill out application documents or pay relevant fees as required, the Trademark Office shall not accept the application, and shall notify the applicant in writing and explain the reasons for non-acceptance. Where the application procedures are largely complete or the application documents are mostly compliant, but need correction/supplement, the Trademark Office shall inform the applicant to make correction/supplement, and require the latter to correct or supplement the specified contents and return the same to the Trademark Office within 30 5

6 days upon receipt of the notice. Where the applicant makes the correction/supplement and returns the same to the Trademark Office by the prescribed deadline, the Trademark Office shall retain its date of application; and where the applicant fails to make correction/supplement by the prescribed deadline or fails to make correction/supplement as required, the Trademark Office shall not accept the application, and shall notify the applicant in writing. of its first trademark registration application submitted by the applicant shall be certified by the trademark authority that accepts the first application, and the date of application and the application number shall also be indicated. Chapter 3: Review of Trademark Registration Applications The provisions on the conditions for application acceptance under Paragraph 2 of this Article shall apply to the applications for handling other trademark-related matters. Article 19 Where two or more applicants apply, respectively, for registering the same trademark or similar trademarks on the same day for the same product or similar products, each applicant shall, within 30 days upon receipt of the notice of the Trademark Office, submit evidence proving its prior use of the trademark before the registration application. Where the applicants begin using the trademark in question on the same day or where none of the applicants has previously used the trademark, the applicants may negotiate among themselves within 30 days upon receipt of the notice of the Trademark Office, and submit the written agreement reached to the Trademark Office. Where the applicants are unwilling to negotiate or where the negotiation fails, the Trademark Office shall notify all the applicants to draw lots to determine one applicant, and shall dismiss the registration applications from the other applicants. Where an applicant fails to participate in the balloting despite being notified by the Trademark Office, the applicant shall be deemed to have waived its application, and the Trademark Office shall notify the applicant who fails to participate in the balloting in writing. Article 20 Where an applicant claims priority rights in accordance with Article 25 of the Trademark Law, the duplicates of the documents Article 21 The Trademark Office shall review an accepted trademark registration application in accordance with relevant provisions of the Trademark Law and these Regulations. Where pertinent requirements are met or where the registration application, which is for use of a trademark on certain designated products, is in compliance with relevant provisions, the Trademark Office shall grant preliminary approval and make an announcement thereon. Where pertinent requirements are not met or where the registration application, which is for use of a trademark on certain designated products, is not in compliance with relevant provisions, the Trademark Office shall dismiss the trademark registration application or the registration application for use of the trademark on certain designated products, notify the applicant in writing and explain the reasons for the dismissal. Article 22 Where the Trademark Office dismisses a trademark registration application for certain designated products, the applicant concerned may spilt the preliminarily approved parts of the said application into another application. The date of application of the original application shall be retained for the split application. Where a trademark registration application needs to be split, the applicant concerned shall apply for splitting the said application to the Trademark Office within 15 days upon receipt of the Notice on Partial Dismissal of Trademark Registration 6

7 Applications issued by the Trademark Office. Upon receipt of the application for splitting the original application, the Trademark Office shall split the original application into two separate applications, generate a new application number for the application for preliminary approval formed as a result of the split, and make an announcement thereon. Article 23 Where the Trademark Office is of the opinion that the contents of a trademark registration application need to be explained or corrected in accordance with Article 29 of the Trademark Law, the applicant concerned shall provide explanations or make corrections within 15 days upon receipt of the notice of the Trademark Office. Article 24 A party who wishes to raise objections on a trademark that has been announced by the Trademark Office after preliminary approval shall submit the following trademark objection materials to the Trademark Office in duplicate, and indicate the originals and duplicates thereof: (1) A written trademark objection application; (2) The identity proofs of the party raising the objections; and (3) Evidence that the party raising the objections is a holder of prior rights or an interested party, applicable if objections are raised on the ground of violations of Paragraph 2 and Paragraph 3 of Article 13, Article 15, Paragraph 1 of Article 16, Article 30, Article 31 or Article 32 of the Trademark Law. The written trademark objection application shall contain clear requests and factual bases, and be attached with relevant evidence materials. Article 25 Upon receipt of a written trademark objection application, the Trademark Office shall conduct examination, accept the said application if it satisfies the conditions on acceptance, and issue a notice of acceptance to the applicant concerned. Article 26 Where a trademark objection application falls under any of the following circumstances, the Trademark Office shall not accept the said application, and shall notify the applicant in writing and explain the reasons for the non-acceptance: (1) Where the said application is not submitted within the statutory time period; (2) Where the eligibility of the applicant or the grounds of the objections are not in compliance with Article 33 of the Trademark Law; (3) Where there is no clear ground, and factual and legal basis for the objections raised; or (4) Where the said application is submitted by the same party who has submitted a previous objection application against the same trademark based on the same grounds and the same factual and legal bases. Article 27 The Trademark Office shall promptly deliver the duplicates of the trademark objection applications to the party against whom the objections are raised, and require the latter to submit defense within 30 days upon receipt of the said duplicates. The failure of the party against whom the objections are raised to defend itself shall not affect the decision by the Trademark Office. Where a party concerned needs to provide supplementary evidence materials after making the objection application or submitting defense, it shall make relevant declarations in the written trademark objection application or the statement of defense, and submit the supplementary evidence materials within three months from the submission of the written trademark objection application or the statement of defense. The failure of the party concerned to submit supplementary evidence materials by the prescribed deadline shall be deemed as its waiver of the right to provide supplementary evidence materials, provided that the evidence furnished beyond the prescribed deadline may be admitted by the Trademark Office after being delivered to the counterparty for cross-examination if such 7

8 evidence is formed after the prescribed deadline or if the party concerned has other justifications for the failure to submit such evidence prior to the expiry of the prescribed time period. Article 28 For the purpose of Paragraph 3 of Article 35 and Paragraph 1 of Article 36 of the Trademark Law, a decision on non-approval of the registration of a trademark shall include a decision on non-approval of the registration of a trademark on certain designated products. Where the registration announcement of a trademark against which objections are raised has been published before the Trademark Office makes the decision on approval or non-approval of registration, the registration announcement shall be revoked. Where the objections are found to be not substantiated after review, and the trademark is therefore approved to be registered, a new announcement shall be made after the decision on approval of registration comes into effect. Article 29 A trademark registration applicant or a trademark registrant who intends to apply for correction in accordance with Article 38 of the Trademark Law shall submit a written application for correction to the Trademark Office. Where the conditions for correction are satisfied, the Trademark Office shall correct relevant contents after approving the said application. Where the conditions for correction are not satisfied, the Trademark Office shall not approve the said application, and shall notify the applicant in writing and explain the reasons for the nonapproval. A correction announcement shall be published if a trademark for which the preliminary approval announcement or the registration announcement has been published is corrected. Article 30 To change the name or address of a trademark registrant or other registration matters, a party concerned shall submit a written application for change to the Trademark Office. To change the name of the trademark registrant, the party concerned shall also submit the supporting documents of the change issued by the relevant registration authority. Where the change is approved, the Trademark Office shall issue corresponding certificates to the trademark registrant, and make an announcement thereon; and where the change is not approved, the Trademark Office shall notify the applicant in writing, and explain the reasons for the nonapproval. Where the name or address of a trademark registrant is changed, the trademark registrant shall make such changes to all of its registered trademarks, failing which, the Trademark Office shall notify the trademark registrant to make correction within the prescribed time period. If the trademark registrant fails to make correction by the prescribed deadline, it shall be deemed to have waived the application for change, and the Trademark Office shall notify the applicant in writing. Article 31 To transfer a registered trademark, the transferor and the transferee shall submit a written application for transfer of the registered trademark to the Trademark Office. The application procedures for transfer of the registered trademark shall be gone through jointly by the transferor and the transferee. Where the application for transfer of the registered trademark is approved, the Trademark Office shall issue corresponding certificates to the transferee, and make an announcement thereon. Chapter 4: Change, Transfer and Renewal of Registered Trademarks In the event of the transfer of a registered trademark, if the trademark registrant fails to transfer its other trademarks that are the same as or similar to the transferred registered trademark and are registered for the same or similar products, 8

9 the Trademark Office shall notify the trademark registrant to make correction within the prescribed time period. If the trademark registrant fails to make correction by the prescribed deadline, it shall be deemed to have waived the application for transfer of the registered trademark, and the Trademark Office shall notify the applicant in writing. Article 32 If the right to exclusive use of a registered trademark is transferred due to inheritance or other reasons other than assignment, the party that accepts the right to exclusive use of the registered trademark shall go through the procedures for transfer of the right to exclusive use of registered trademarks with the Trademark Office by producing relevant supporting documents or legal instruments. In the event of the transfer of the right to exclusive use of a registered trademark, trademarks that are the same as or similar to the registered trademark in question and are registered by the holder of the said right on the same or similar products shall all be transferred at the same time, failing which, the Trademark Office shall notify the said right holder to make correction within the prescribed time period. If the right holder fails to make correction by the prescribed deadline, it shall be deemed to have waived the application for transfer of the registered trademark, and the Trademark Office shall notify the applicant in writing. A trademark transfer application shall be announced after it is approved. The party concerned that accepts the transfer of the right to exclusive use of the registered trademark in question shall enjoy the right to exclusive use of trademarks with effect from the date of announcement. Article 33 To renew the registration of a registered trademark, the trademark registrant shall submit a written application for trademark registration renewal to the Trademark Office. Where the application for trademark registration renewal is approved, the Trademark Office shall issue corresponding certificates to the trademark registrant, and make an announcement thereon. Chapter 5: International Registration of Marks Article 34 For the purpose of Article 21 of the Trademark Law, international registration of marks shall refer to the Madrid system of international registration of marks handled pursuant to the Madrid Agreement Concerning the International Registration of Marks (hereinafter referred to as the "Madrid Agreement"), the Protocol relating to the Madrid Agreement Concerning the International Registration of Marks (hereinafter referred to as the "Madrid Protocol") and the Common Regulations under the Madrid Agreement Concerning the International Registration of Marks and the Protocol Relating to that Agreement. Applications for international registration of marks under the Madrid system shall include applications for international registration of trademarks with China as the country of origin, applications designating China for territorial extension and other related applications. Article 35 An applicant who applies for the international registration of a trademark with China as the country of origin shall have a real and valid business establishment within China, or have a domicile within China, or shall be of Chinese nationality. Article 36 An applicant that meets the requirements of Article 35 herein may apply for the international registration of its trademark under the Madrid Agreement, if the trademark has been registered by the Trademark Office. 9

10 An applicant that meets the requirements of Article 35 herein may apply for the international registration of its trademark under the Madrid Protocol, if the trademark has been registered by the Trademark Office or if an application for registration of the trademark has been submitted to and accepted by the Trademark Office. Article 37 An application for the international registration of a trademark with China as the country of origin shall be made to the International Bureau of the World Intellectual Property Office ("WIPO") (hereinafter referred to as the "International Bureau") via the Trademark Office. Where China is the country of origin, applications for subsequent designation, waiver and deregistration of the international registration of a trademark relating to the Madrid Agreement shall be made to the International Bureau via the Trademark Office, while applications for the transfer, deletion, change and renewal of the international registration of a trademark relating to the Madrid Agreement may be made to the International Bureau either directly or via the Trademark Office. Where China is the country of origin, applications for subsequent designation, transfer, deletion, waiver, deregistration, change and renewal of the international registration of a trademark relating to the Madrid Protocol may be made to the International Bureau either directly or via the Trademark Office. Article 38 An applicant that applies for the international registration of a trademark or for handling other relevant applications to the International Bureau via the Trademark Office shall submit written applications and relevant materials in line with the requirements of both the International Bureau and the Trademark Office. Article 39 The scope of products or services designated by an application for the international registration of a trademark shall not exceed that of the products or services under the underlying domestic application or the underlying domestic registration. Article 40 Where the application formalities for the international registration of a trademark are incomplete or where an applicant fails to fill out the application form as required, the Trademark Office shall not accept the application, and shall not retain the date of application. Where the application procedures are largely complete or the application form is mostly compliant, but needs correction/supplement, the applicant shall make correction/supplement within 30 days upon receipt of the notice on correction/supplement. Where the applicant fails to make correction/supplement by the prescribed deadline, the Trademark Office shall not accept the application, and shall notify the applicant in writing. Article 41 An applicant that applies for the international registration of a trademark or for handling other relevant applications to the International Bureau via the Trademark Office shall pay fees in accordance with relevant provisions. The applicant shall pay fees to the Trademark Office within 15 days upon receipt of the payment notice issued by the Trademark Office. Where the applicant fails to make the payment by the prescribed deadline, the Trademark Office shall not accept its application, and shall notify the applicant in writing. Article 42 The Trademark Office shall, within the dismissal period under the Madrid Agreement or the Madrid Protocol (hereinafter referred to as the "Dismissal Period"), examine an application designating China for territorial extension in accordance with relevant provisions of the Trademark Law and these Regulations, make a decision thereon and notify the International 10

11 Bureau of the same. Where the Trademark Office issues no notice on dismissal or partial dismissal within the Dismissal Period, the territorial extension application shall be deemed as approved. Article 43 Where an applicant designating China for territorial extension requests for the protection of a three-dimensional mark, color combinations or a sound mark as a trademark or requests for the protection of a collective trademark or certification mark, it shall, within three months from the date of registration of the trademark in question in the International Register of the International Bureau, submit relevant materials prescribed by Article 13 herein to the Trademark Office via a duly established trademark agency. Where the applicant fails to submit relevant materials by the foregoing deadline, the Trademark Office shall dismiss its application for territorial extension. Article 44 The WIPO shall issue announcements on matters concerning the international registration of marks. As such, the Trademark Office shall not issue separate announcements in this regard. Article 45 As regards an application designating China for territorial extension, a party with objections who satisfies the conditions prescribed by Article 33 of the Trademark Law may submit an application for objections to the Trademark Office within three months from the first day of the month immediately following the month of publication of the Gazette of International Marks by the WIPO. The Trademark Office shall notify the International Bureau of the situations relating to the application for objections within the Dismissal Period in the form of a decision on dismissal. The party against whom the objections are raised may submit defense within 30 days upon receipt of the notice on dismissal forwarded by the International Bureau. The statement of defense and relevant evidence materials shall be submitted to the Trademark Office via a duly established trademark agency. Article 46 The validity period of an internationally registered trademark that is protected in China shall commence from the date of international registration or the date of subsequent designation. Before the expiry of the validity period, the registrant may apply for renewal to the International Bureau, and may be given a grace period of six months if it fails to apply for renewal within the validity period. The Trademark Office shall conduct examination pursuant to the law upon receipt of the renewal notice from the International Bureau, and shall deregister the internationally registered trademark if nonrenewal is notified by the International Bureau. Article 47 Where an application designating China for territorial extension is to be transferred, the transferee shall have a real and valid business establishment within the territory of a contracting party, or have a domicile within the territory of a contracting party, or be a citizen of a contracting party. Where the transferor fails to transfer, at the same time, its other trademarks that are the same as or similar to the trademark in question and are used on the same or similar products or services, the Trademark Office shall notify the registrant to make correction within three months from the date of the notice. Where the registrant fails to correct by the prescribed deadline or where the transfer is likely to cause confusion or other adverse effects, the Trademark Office shall decide that the transfer is invalid in China, and make a declaration to the International Bureau. Article 48 Where deletion is performed regarding an application designating China for territorial extension, subsequent to which the products or services no longer meet relevant Chinese classifications of products or services or exceed the original scope of the designated products or services, the Trademark Office shall decide that 11

12 the deletion is invalid in China, and make a declaration to the International Bureau. Article 49 An application for cancelling an internationally registered trademark in accordance with Paragraph 2 of Article 49 of the Trademark Law shall be made to the Trademark Office three years after the expiry of the Dismissal Period of the application for the international registration of the trademark. Where relevant dismissal review or objection procedures are still in progress upon expiry of the Dismissal Period, such an application shall be made to the Trademark Office three years after the decision on approval of registration by the Trademark Office or the Trademark Review and Adjudication Board comes into effect. An application for declaring an internationally registered trademark invalid in accordance with Paragraph 1 of Article 44 of the Trademark Law shall be made to the Trademark Review and Adjudication Board upon expiry of the Dismissal Period of the application for the international registration of the trademark. Where relevant dismissal review or objection procedures are still in progress upon expiry of the Dismissal Period, such an application shall be made to the Trademark Review and Adjudication Board after the decision on approval of registration by the Trademark Office or the Trademark Review and Adjudication Board comes into effect. An application for declaring an internationally registered trademark invalid in accordance with Paragraph 1 of Article 45 of the Trademark Law shall be made to the Trademark Review and Adjudication Board five years after the expiry of the Dismissal Period of the application for the international registration of the trademark. Where relevant dismissal review or objection procedures are still in progress upon expiry of the Dismissal Period, such an application shall be made to the Trademark Review and Adjudication Board five years after the decision on approval of registration by the Trademark Office or the Trademark Review and Adjudication Board comes into effect. The holder of a well-known trademark is not bound by the five-year restrictions in the case of malicious registration. Article 50 The following provisions of the Trademark Law and these Regulations shall not apply to the handling of matters related to the international registration of marks: (1) The provisions on examination and hearing periods under Article 28 and Paragraph 1 of Article 35 of the Trademark Law; (2) Article 22 and Paragraph 2 of Article 30 of these Regulations; and (3) The provisions under Article 42 of the Trademark Law and Article 31 herein that in the event of the transfer of a trademark, the transferor and the transferee shall jointly apply and handle relevant formalities. Chapter 6: Trademark Review and Adjudication Article 51 Trademark review and adjudication shall mean that the Trademark Review and Adjudication Board hears matters related to trademark disputes in accordance with Article 34, Article 35, Article 44, Article 45 and Article 54 of the Trademark Law. A party concerned that submits a trademark review and adjudication application to the Trademark Review and Adjudication Board shall have clear requests, facts, reasons and legal bases, and provide pertinent evidence. The Trademark Review and Adjudication Board shall conduct review and adjudication in accordance with the law and based on facts. Article 52 When hearing a review case filed on the ground of objections to the decision made by the Trademark Office on dismissing a trademark registration application, the Trademark Review and Adjudication Board shall conduct the hearing 12

13 according to the dismissal decision by the Trademark Office, the facts, grounds and requests of the applicant's review application, and the factual state at the time of hearing. During the hearing of a review case filed on the ground of objections to the decision made by the Trademark Office on dismissing a trademark registration application, if the Trademark Review and Adjudication Board finds that the trademark under registration application is in violation of Article 10, Article 11, Article 12 or Paragraph 1 of Article 16 of the Trademark Law and that the Trademark Office has not based its dismissal decision on any of the foregoing articles, the Trademark Review and Adjudication Board may make a review decision on dismissing the application pursuant to the foregoing articles. The Trademark Review and Adjudication Board shall listen to the opinions of the applicant prior to making a review decision. Article 53 When hearing a review case filed on the ground of objections to the decision made by the Trademark Office on non-approval of the registration of a trademark, the Trademark Review and Adjudication Board shall conduct the hearing according to the decision on non-approval of registration by the Trademark Office, the facts, grounds and requests of the applicant's review application, and the opinions raised by the original party with objections. When hearing a review case filed on the ground of objections to the decision made by the Trademark Office on non-approval of the registration of a trademark, the Trademark Review and Adjudication Board shall notify the original party with objections to participate in the hearing and put forward opinions. The opinions of the said party may be admitted as the bases for review and adjudication if they have a substantive impact on the outcomes of case hearing. The failure of the said party to participate in the hearing or put forward opinions shall not affect the hearing of the case. Article 54 When hearing a case of request to declare invalid a registered trademark in accordance with Article 44 or Article 45 of the Trademark Law, the Trademark Review and Adjudication Board shall conduct the hearing according to the facts, grounds and requests raised in the application and the defense of the parties concerned. Article 55 When hearing a review case filed on the ground of objections to the decision made by the Trademark Office on declaring a registered trademark invalid pursuant to Paragraph 1 of Article 44 of the Trademark Law, the Trademark Review and Adjudication Board shall conduct the hearing according to the decision of the Trademark Office, and the facts, grounds and requests of the applicant's review application. Article 56 When hearing a review case filed on the ground of objections to the decision made by the Trademark Office on cancelling or maintaining a registered trademark pursuant to Article 49 of the Trademark Law, the Trademark Review and Adjudication Board shall conduct the hearing according to the decision by the Trademark Office on cancelling or maintaining the registered trademark, and the facts, grounds and requests on which the applicant's review application is based. Article 57 To apply for trademark review and adjudication, an applicant shall submit a written application to the Trademark Review and Adjudication Board, and submit duplicates in an appropriate number of copies according to the number of respondents. An applicant who applies for review based on a written decision of the Trademark Office shall also submit the duplicate of the said written decision. Upon receipt of the written application, the Trademark Review and Adjudication Board shall examine the said application, and accept the same 13

14 if it satisfies the conditions on acceptance. Where the application fails to satisfy the conditions on acceptance, the Trademark Review and Adjudication Board shall not accept the application, and shall notify the applicant in writing and explain the reasons for nonacceptance. Where the application needs to be corrected/supplemented, the Trademark Review and Adjudication Board shall notify the applicant to make correction/supplement within 30 days upon receipt of the notice. Where the application still fails to meet relevant requirements after correction/supplement, the Trademark Review and Adjudication Board shall not accept the application, and shall notify the applicant in writing and explain the reasons for nonacceptance. Where no correction/supplement is made by the prescribed deadline, the application shall be deemed as withdrawn, and the Trademark Review and Adjudication Board shall notify the applicant of the same in writing. Where the Trademark Review and Adjudication Board finds that a trademark review and adjudication application fails to satisfy the conditions on acceptance only after accepting the said application, it shall dismiss the application, notify the applicant in writing and explain the reasons for the dismissal. Article 58 The Trademark Review and Adjudication Board shall, upon acceptance of a trademark review and adjudication application, promptly serve the duplicate of the written application on the respondent, and require the latter to submit defense within 30 days upon the receipt thereof. The failure of the respondent to defend itself within the prescribed time period shall not affect the review and adjudication work of the Trademark Review and Adjudication Board. Article 59 Where a party concerned needs to provide supplementary evidence materials after making the review and adjudication application or submitting defense, it shall make relevant declarations in the written application or the statement of defense, and provide the supplementary evidence materials within three months from the date of submission of the written application or the statement of defense. The failure of the party concerned to provide supplementary evidence materials by the prescribed deadline shall be deemed as its waiver of the right to provide supplementary evidence materials, provided that the evidence furnished beyond the prescribed deadline may be admitted by the Trademark Review and Adjudication Board after being delivered to the respondent for crossexamination if such evidence is formed after the prescribed deadline or if the party concerned has other justifications for the failure to submit such evidence prior to the expiry of the prescribed time period. Article 60 The Trademark Review and Adjudication Board may, at the request of a party concerned or according to actual needs, decide to orally hear a review and adjudication application. Where the Trademark Review and Adjudication Board decides to orally hear a review and adjudication application, it shall notify the parties concerned of the date, venue and review and adjudication officers of the oral hearing in writing 15 days prior to the scheduled oral hearing. The parties concerned shall respond within the time period specified in the written notice. Where the applicant neither responds nor participates in the oral hearing, its review and adjudication application shall be deemed as withdrawn, and the Trademark Review and Adjudication Board shall notify the applicant in writing. Where the respondent neither responds nor participates in the oral hearing, the Trademark Review and Adjudication Board may conduct default review and adjudication. Article 61 An applicant may apply in writing to the Trademark Review and Adjudication Board to 14