Notice on Public Consultation on the “Several Provisions on Regulating the Registration of Trademarks (Consultation Draft)”

In order to enhance the openness and transparency of legislation and improve the quality of legislation, the State Intellectual Property Office will draft a number of “Regulations on Regulating the Registration of Trademark Applications (Draft for Comment)” and its explanations, solicit opinions from all sectors of society. The public can log on to the official website of the State Intellectual Property Office, pay attention to the WeChat public account of the State Intellectual Property Office, and view the draft for comment and its explanation. Relevant units and people from all walks of life can make specific comments on the revision and improvement of the draft for comments by the following three methods before March 14, 2019:

1. Send your comments by email to: tiaofasi@sipo.gov.cn.

2. fax: 010-62083681.

3. By letter to: Department No. 2 of the Laws and Regulations Division of the State Intellectual Property Office, No. 6 Xitucheng Road, Haidian District, Beijing 100088 (please specify “Regulations on the Registration of Trademarks in the Lower Left Corner of the Envelope”)

Annex 1

Several regulations on regulating the registration of trademark applications

(draft for comment)

Article 1

In order to standardize trademark registration and maintain normal trademark work order, these regulations are formulated in accordance with the Trademark Law and the Trademark Law Implementation Regulations.

Article 2

Where an application for trademark registration is made, the actual need for the exclusive right to use the trademark for the goods or services shall be included in the production and business activities, and the existing prior rights of others shall not be impaired.

If submitting or submitting an application for trademark registration, it shall comply with the relevant provisions of laws, regulations and rules, abide by the principle of honesty and credit, and shall not engage in the abnormal registration of trademark registration.

Article 3

The act of abnormally applying for trademark registration referred to in these Provisions means:

(1) Applying for trademark registration as a trademark familiar to the relevant public, and adhering to the goodwill of others;

(2) rushing to apply for registration of trademarks that have been used by others and have certain influence, and improperly extracting the goodwill of others;

(3) knowingly or should be aware of the existence of other prior rights, but still preemptively applying for registration of the same or similar trademark;

(4) Repeated application for trademark registration, which obviously has an improper purpose;

(5) Applying for a large number of trademark registrations in a short period of time, obviously exceeding the reasonable limit;

(6) There is no intention to apply for trademark registration, and there is no actual need to obtain trademark exclusive right for goods or services;

(7) Other trademark application registration violations that violate the principle of good faith, infringe on the legitimate rights and interests of others or disrupt the market operation order;

(8) Helping others or trademark agencies to conduct trademark registration applications of the types mentioned in items (1) to (7) of this article.

Article 4

The following acts shall be carried out in accordance with the provisions of the Trademark Law and the Implementation Regulations of the Trademark Law for the improper registration of trademark registration:

(1) Where an application for trademark registration is filed, the applicant shall submit the relevant evidentiary materials and explain the reasons in accordance with Article 29 of the Trademark Law. If there is no justifiable reason or insufficient evidence, it shall be in accordance with Article 30 or Article 35 of the Trademark Law. Reject the application or not to register;

(2) Where the registration of a trademark is obtained, it shall be registered by other unfair means as stated in Article 44 of the Trademark Law, and the registration of the registered trademark shall be invalid;

(3) The transfer of the acquired registered trademark shall be subject to any other adverse effects referred to in Article 42 of the Trademark Law and shall not be approved;

(4) Where a trademark agency engages in an abnormal application for trademark registration, it shall be in the act of disturbing the market order of the trademark agency by other improper means as stated in Article 68 of the Trademark Law, and shall be credited to the credit file, and the case shall be suspended if the circumstances are serious. Handling trademark agency business.

Article 5

In addition to handling the abnormal registration of trademark registration, in addition to the provisions of the Trademark Law and the Trademark Law Implementation Regulations, the following measures may be taken according to the circumstances:

(1) to be notified on the government website of the State Intellectual Property Office and the China Intellectual Property News, and to be included in the national credit information sharing platform for publication, and the relevant departments shall take disciplinary measures according to law;

(2) Deducting and marking the number of registered trademarks obtained from abnormal applications in the statistics of trademark applications of the State Intellectual Property Office;

(3) The competent departments of intellectual property at all levels shall not grant, support or reward; if they have been identified as abnormally applying for trademark registration after they have been subsidized, supported or rewarded, they shall be recovered in whole or in part according to the circumstances; if the circumstances are serious, they shall be self-identified. The principal and its related entities shall not be subsidized, supported or rewarded within five years from the date of the abnormal application for trademark registration;

(4) Where a trademark agency engages in an abnormal application for trademark registration, the State Intellectual Property Office shall conduct a rectification of its legal representative, and the Trademark Industry Association shall adopt industry self-regulatory measures for the institution and relevant trademark agents;

(5) Defrauding funds, support, or rewards through improper registration of trademark registration, and if the circumstances seriously constitute a crime, the relevant authorities shall be transferred to the relevant authorities for criminal responsibility.

Article 6

Before taking the measures listed in Article 5 of these Provisions, the parties shall be given an opportunity to present their opinions if necessary.

Article 7

The competent departments of intellectual property at all levels shall promote the high-quality development of intellectual property rights, actively guide the public and trademark agencies to apply for trademark registration in accordance with law, and regulate the use of registered trademarks by the public in production and business activities.

Any organization or individual who discovers an abnormal application for trademark registration may report it to the State Intellectual Property Office. Where the State Intellectual Property Office receives a report or discovers an abnormal application for trademark registration, it shall promptly handle it according to law.

Any organization or individual that finds a registered trademark without a valid reason for three consecutive years may apply to the State Intellectual Property Office for cancellation, which shall be revoked by the State Intellectual Property Office.

Article 8

This regulation shall come into force on the day of the month of 2019.

Annex 2

Drafting Instructions for ” Several Provisions on Regulating the Registration of Trademarks (Consultation Draft)”

1. background and necessity

　　With the rapid development of the socialist market economy with Chinese characteristics and the deepening of reform and opening up, the role of trademarks in promoting the sustained and stable development of the market economy has become increasingly prominent. Under the background of “mass entrepreneurship and innovation”, small and medium-sized enterprises have emerged, and the demand for registered trademarks by market participants has grown at an unprecedented rate. With the optimization of the trademark registration process, shortened registration period, reduced registration costs, and reduced registration resources, the trademark “malicious application” for the purpose of brand name has occurred, and the trademark “hoarding” for the purpose of transferring the registered trademark for profit but not for actual use has occurred. The registration behavior has appeared in large numbers. These abnormal application for trademark registration seriously disrupted the market economic order and trademark management order, undermined the business environment, and aroused widespread concern from all walks of life and strongly urged that it should be contained as soon as possible.

The State Intellectual Property Office attaches great importance to the above issues and actively carries out legislative research. It intends to improve the trademark laws and regulations, optimize the registration, use and protection of trademark applications, and form a long-term mechanism to curb the abnormal registration of trademarks. Although the trademark law after the third revision has added general provisions such as the principle of good faith, there are still no specific basis and standards in practice. Considering that the revision period of the trademark law is long and it is difficult to quickly curb the abnormal application for trademark registration in the short term, it is necessary to draw up the regulations of the department in accordance with the abnormal application behavior regulation in the patent field, with a view to fully utilizing the existing legal system and reaffirming the protection of registered trademarks. The legislative purpose of the exclusive right, strengthen policy guidance, effectively solve practical problems, and lay the foundation and experience for the revision and improvement of the trademark law in the future.

2. the main ideas

　　From the perspective of optimizing the business environment and maintaining market order, the “Regulations on Regulating the Registration of Trademarks for Application for Registration (hereinafter referred to as the Draft for Soliciting Opinions) intends to give full play to the functions of the competent departments of intellectual property rights and will curb abnormal application behavior. The frontier shifts, emphasizing the government-oriented and market-driven, combining supervision and guidance, and focusing on solving the problem of unclear legal basis in practice under the existing legal framework, forming a long-term mechanism to crack down on trademark hoarding registration and malicious applications. The draft of the Exposure Draft adheres to the principle of trademark registration for practical use, and takes measures from various aspects of administrative management. At the same time, it appeals to the public to make full use of the three-year system of non-use of trademark revocation and invalidity of registered trademarks, paying attention to the intention of using registered trademarks and strengthening market entities. It is a good guide to apply for trademark registration for goods and services that have actual needs, in order to achieve the purpose of regulating the abnormal registration of trademark registration.

　　In the legislative thinking, the main focus is on the following three points: First, summarizing typical situations, case-based, problem-oriented, defining the types of behaviors for abnormal application for trademark registration; second, defining the legal basis and modifying the fourth revision of the trademark law. In the case that the work has not yet started, the basis of the existing legal provisions will be found to ensure the administration according to law; the third is to take effective measures to strengthen the comprehensive supervision, and the trademark review, management process and credit records, data statistics and agency management, etc. The combination of out-of-process measures forms a multi-faceted comprehensive supervision.

　　At the same time, the draft of the consultation draft summarizes the legislative and practical experience, and fully refers to the “Regulations on Regulating Patent Application Behavior” (Order No. 75 of the State Intellectual Property Office) in terms of system and specific measures.

3. the main content of the draft

　　Draft a total of eight, including five aspects: First, a clear legislative intent to reaffirm the principles of trademark law established in good faith and willingness to use the premise application-oriented (first two) trademark registration; the second is to enumerate the manner prescribed non The type of behavior of normal application for trademark registration (Article 3); the third is to clarify the legal consequences of abnormal registration of trademarks (Article 4); the fourth is to take measures from credit records, statistical standards, agency management, etc. The application for trademark registration and the corresponding rights of the parties (Articles 5 and 6); Fifth, clarify the duties of the competent intellectual property authorities at all levels to guide and regulate the registration and use of trademark applications, and mobilize the public to apply for trademark registration. The act is reported and supervised (Article 7).

National Intellectual Property Administration, PRC

February 12, 2019

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