Laws & Regulations

Trademark

Implementation of International Registration
Measures for the Implementation of International Registration of Marks under Madrid Agreement (Issued by the State Administration for Industry and Commerce on 17 April 2003) Article 1 These Measures are hereby formulated in accordance with the provision of Article 12 of the Implementing Regulations of the Trademark Law of the People's Republic of China (hereinafter referred to as the Implementing Regulation). The international registration of marks provided in Article 12 of the Implementing regulations refers to international registration of marks under 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 (hereinafter referred to as the Common Regulations). Article 2 These Measures shall apply to applications for international registration of marks with China being the country of origin, and applications designating territorial extension to China and other relevant applications. These Measures do not apply to the registration of trademarks in a foreign country through a route other than the Madrid System .The applicant may entrust a trademark agency, a foreign representative, a law firm or its branch in a foreign country to deal with the registration matter. Article 3 Any party applying for international registration of a mark with china being the country of origin shall have real and effective industrial or commercial establishments in China, or be domiciled in China, or be a Chinese national. Article 4 Where any party is eligible for the international registration of a mark as provided under Article 3 of these Measures and his or its mark has been registered in the Trademark Office of the administrative authority for industry and commerce under the State Council (hereinafter referred to as the Trademark Office ), he or it may apply for international registration of the mark under the Madrid agreement. Where any party is eligible for the international registration of a mark as provided under Article 3 of these Measures and his or its mark has been registered in the trademark Office or an application has been filed with the Trademark Office for the registration of the mark, he or it may apply for international registration of the mark under the Madrid Protocol. Article 5 Any party applying for international registration of a mark shall deal with the matter through the Trademark Office. An applicant or an authorized trademark agency thereby may directly file an application in person at, or post the application to , the Trademark Office. Article 6 Any party filing an application in respect of matters such as subsequent designation, renunciation or cancellation of the international registration of a mark under the Madrid Agreement shall deal with the matter through the trademark Office.Any party filing an application in respect of such matters as assignment, reduction of goods or services, modification of the name or address of the registrant, modification on the name or address of an agent or renewal of the international registration of the mark under the Madrid Agreement may deal with the matter through the Trademark office or directly at the International Bureau of the World Intellectual Property Office (hereinafter referred to as the International Bureau). Any party filing an application in respect of subsequent designation, assignment, reduction of goods or services, abandonment or cancellation of the mark, modification of the name or address of the registrant, modification of the name or address of the agent, or renewal of, the international registration of the mark under the Madrid Protocol may deal with the matter through the Trademark Office or directly at the International Bureau. Dealing with the matter through the trademark Office, the applicant or the authorized trademark agency thereby may directly file an application at, or post the application to, the Trademark Office. Dealing with the matter at the International Bureau, the applicant or the authorized trademark agency thereby may file the application with, or post the application to, the International Bureau. Article 7 Any party applying for international registration of a mark or dealing with other relevant matters through the Trademark Office may fill out the English or French forms prepared by the International Bureau, or fill out the Chinese forms prepared by the Trademark Office, but it or he shall pay the Trademark Office the translation fee. In addition to the fees provided in the Common Regulations, any party applying for international registration of a mark or dealing with other relevant matters shall pay the Trademark Office the procedural fee. Article 8 If the applicant for international registration of a mark is a natural person, he shall indicate his Chinese name. If the applicant is a legal person or any other organization, it shall indicate its Chinese name in full. If the natural person, legal person or any other organization has an equivalent translation of his or its name in a foreign language, he or it may indicate the name in the foreign language. If he or it does not have a translation of his or its name in a foreign language, he or it shall indicate his or its name in the Chinese phonetic alphabet. Article 9 An applicant shall indicate his or its address in full (including the address and postal code) in the application for international registration of a mark, telephone number and facsimile number. Article 10 An application for international registration of a mark may designate one class of goods or service, or two or more classes of goods or service. Article 11 Applying for international registration of a mark, the applicant shall furnish: (i) a copy of the Certificate of Trademark Registration in China or a copy of the Notification on the Acceptance of Application for Trademark Registration issued by the Trademark Office; (ii) a Certificate of Priority if the right of priority is claimed; (iii) a Certificate of Qualification of the Applicant, such as copies of Business License, Certification of Residence or the Identification Card; (iv) a Power of Attorney if an agency is appointed; (v) two copies of the reproduction of the mark, the size of which shall be less than 80mm x 80mm but more than 20mm x 20mm. Article 12 The date on which the Trademark Office receives an application for international registration of a mark shall be the filing date. Any application for international registration of a mark which has not been filled as prescribed shall be returned and the filing date thereof shall not be retained. Where an application has substantially met the requirements for formality, but yet amendment is needed, the Trademark Office shall notify the applicant or the agent thereof to make an amendment within 15 days from the date of receipt of the notification. The date of service of the Trademark Office's Notification of Amendment on an interested party shall, if the Notification is posted, be the date indicated by the postmark on which the interested party receives it. Where the receiving date indicated by the postmark is illegible or there is no postmark, the Notification shall be considered served on the party 15 days after the date on which the document is sent. Failure to make amendment shall be deemed abandonment of the application, and the Trademark Office shall notify the applicant in writing. Where fees are required for the application for international registration of a mark or any other application dealt with through the Trademark Office, payment of the relevant fees shall be made to the Trademark Office within 15 days after the date of receipt of the Notification from the Trademark Office on the payment of the fee. The date of service of the Trademark Office's Notification of Payment on an interested party shall, if the Notification is posted, be the date indicated by the postmark on which the interested party receives the notification. Failure to make the payment shall be deemed abandonment of the application, and the Trademark Office shall notify the applicant in writing. Article 13 Where the Trademark Office notifies the International Bureau to reject, ex officio, an application requesting for territorial extension to China, the Trademark Office shall not confirm the rejection with the International Bureau any longer. Article 14 Within 3 months after the first day of the month following the publication of the International Mark by the World Intellectual Property Organization, any party may file an opposition with the Trademark Office against an application requesting for territorial extension to China published in the said Gazette. An application for opposition may involve one class of goods or service, or two or more classes of goods or services. Where an opponent withdraws his or its application for opposition, the Trademark Office shall terminate the opposition proceeding and notify the interested party in writing. Article 15 An applicant requesting for territorial extension of a collective mark or certification mark to China shall submit, through a trademark agency and according to the relevant provisions, to the Trademark Office the certificate of the qualification of the subject, the regulation governing the use of the mark and any other documents of certification within three months from the date of the entry of the mark in the International Register of the International Bureau of the World Intellectual Property Organization. If the certificate of the qualification of the subject and the regulation governing the use of the mark and any other documents of certification are not submitted within three months, the Trademark Office shall reject the application of the collective or certification mark requesting for the territorial extension. Article 16 Where an assignor fails to apply, according to law, for assignment in a lump of all his or its identical or similar marks in respects of the same or similar goods, the Trademark Office shall notify the registrant for international registration of a mark to rectify the situation within 30 days from the date of receipt of the notification; if the situation is not rectified at the expiration of the time limit, the Trademark Office shall decide that the said assignment is not valid in China, and declare it to the International Bureau. Any interested party who is not satisfied with the declaration by the Trademark Office may institute legal proceedings with the people��s court within 30 days from the date of receipt of the declaration by the Trademark Office. Where no legal proceedings is instituted at the expiration of the time limit, the decision of the Trademark Office shall come into effect, and the date for the decision to come into effect is the date on which the decision is made. If any deletion or reduction does not comply with the requirements on the classification of goods or services enforced in China, the Trademark Office shall decide that the deletion reduction is not valid in China, and declare it to the International Bureau. Any interested party who is not satisfied with the declaration by the Trademark Office may institute legal proceedings with the people��s court within 30 days from the date of receipt of the declaration by the Trademark Office. Where the legal proceedings are not instituted at he expiration of the time limit, the decision of the Trademark Office shall come into effect, and the date for the decision to come into effect is the date on which the decision is made. Article 17 Any party licensing another party to use his or its trademark of international registration in the territory of China shall deal with the matter in accordance with the Trademark Law and the Implementing Regulations thereof. Article 18 Where an applicant requesting for territorial extension to China substitutes his or its trademark of international registration for a trademark registered in China, the mark's international registration shall not affect the right of the mark's registration obtained in China. Any party requesting for substitution of the international registration having entered in the Trademark Registration Register of the Trademark Office for an earlier national registration shall do so through a trademark agency and pay the required fees. Article 19 Where a trademark of international registration under protection in China falls within the circumstances provided in Article 41 of the Trademark Law, the owner of the trademark or an interested party or any other party may, depending on the circumstances, apply to the Trademark Review and Adjudication Board for adjudication of a dispute or for adjudication on the cancellation of the said mark under protection in China. The application for adjudication shall be filed after the expiration of the time limit for rejection of the trademark in China. Article 20 Any party who designates protection of international registration of a mark in China may, form the date of expiration of the time limit for rejection of the mark, appoint a trademark agency to apply to the Trademark Office for issuance of a certificate that his or its mark is under protection in China. Article 21 These Measures shall enter into force on June 1, 2003, and the Measures for the Implementation of International Registration of Marks under Madrid Agreement issued by the State Administration for Industry and Commerce on May 24,1996 shall be simultaneously abrogated.
Measures for Registration of Collective Marks
Measures for the Registration and Administration of Collective Marks and Certification Marks (Issued by the State Administration for Industry and Commerce on April 17, 2003) Article 1 These Measures are hereby formulated in accordance with the provision of Article 3 of the Trademark Law of the People's Republic of China (hereinafter referred to as the Trademark Law). Article 2 The registration and administration of collective marks and certification marks shall be conducted in accordance with the relevant provisions of the Trademark Law, the Implementing Regulations for the Trademark Law of the People's Republic of China (hereinafter referred to as the Implementing Regulations) and these Measures. Article 3 The provisions of these Measures concerning goods shall apply to services. Article 4 Any party applying for the registration of a collective mark shall furnish documents certifying the qualification of the subject and indicate in detail the names and addresses of the members of the collective. Any party applying for the registration of a geographic indication as a collective mark shall furnish documents certifying the qualification of the subject and submit the detailed information of the professionals and special testing equipments of its own or of any other organization authorized by it to show its capability of supervising the particular quality of the goods to which the said geographic indication applies. A society, an association or any other organization applying for the registration of a geographic indication as a collective mark shall be composed of members from within the region indicated by the geographic indication. Article 5 Any party applying for the registration of a certification mark shall furnish documents certifying the qualification of the subject and submit detailed information of the professionals and special testing equipments of its own or of any other organization authorized by it to show its capability of supervising the particular quality of the goods to which the said certification mark applies. Article 6 Any party applying for the registration of a geographic indication as a collective mark or a certification mark shall also furnish the approval documents issued by the people's government which has jurisdiction thereover or the competent authority of the industry. Any foreign person or enterprise applying for the registration of a geographical indication as a collective mark or a certification mark, he or it shall furnish documents certifying that the geographic indication in question, in his or its name, is under the legal protection in the country of origin. Article 7 Any party applying for the registration of a geographic indication as a collective mark or a certification mark shall present the following information in the application documents: (i) the given quality, reputation or any other characteristic of the goods indicated by the geographic indication; (ii)the correlation between the given quality, reputation or any other characteristic of the goods and the natural and human factors of the region indicated by the geographic indication; (iii)the boundary of the region indicated by the geographic indication. Article 8 A geographic indication in respect of which an application is filed for the registration as a collective mark or a certification mark may be a name of the region indicated by the geographic indication, or any other visual signs capable of indicating that a goods originate from the region. The region referred to in the preceding paragraph is not required to be fully consistent with the name or boundary of the current administrative division. Article 9 Where several geographic indications for wines constitute homonyms and these geographic indications can be distinguished from one another and do not mislead the public, each geographic indication may be applied for the registration as a collective mark or certification mark. Article 10 The regulation governing the use of a collective mark shall include: (i) the purpose of using the collective mark; (ii) the quality of the goods to which the collective mark applies; (iii) the procedures for using the collective mark; (iv) the rights and obligations entailed in the use of the collective mark; (v) the liability the members shall bear for breaching the regulation; (vi) the registrant's system for the inspection and supervision of the goods to which the collective mark applies. Article 11 The regulation governing the use of a certification mark shall include: (i) the purpose of using the certification mark; (ii) the particular quality of the goods certified by the certification mark; (iii) the conditions for using the certification mark; (iv) the procedure for using the certification mark; (v) the rights and obligation entailed in the use of the certification mark; (vi) the liability a user shall bear for breaching the regulation; (vii) the registrant's system for the inspection and supervision of the goods to which the certification mark applies. Article 12 Where any party uses another party's registered geographical indication for wines or spirits as a collective mark or certification mark to identify wines or spirits not originating in the place indicated by the geographical indication in question, even where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as "kind", "type", "style", "imitation" or the like, Article 16 or the Trademark Law shall apply. Article 13 The content of the publication of a collective mark or certification mark after the preliminary examination shall include the full text or abstract of the regulation governing the use of the mark in question. Any amendment made by the registrant of a collective mark or certification mark to the regulation governing the use of the mark shall be submitted to the Trademark Office for examination and approval, and the amendments shall come into effect on the date of publication. Article 14 If a change occurs in the membership of the registrant of a collective mark, the registrant shall apply to the Trademark Office for the modification of the registered matters and the Trademark Office shall publish it. Article 15 where the registrant of a certification mark allows another party to use his or its mark, he or it shall report to the Trademark Office for record, and the Trademark Office shall publish it. Article 16 When an application is filed for the assignment of a collective mark or a certification mark, the assignee shall have the relevant qualification as a subject and shall comply with the provisions of the Trademark Law, the Implementing Regulations and these Measures. Where a transfer of a collective mark or a certification mark occurs, the transferee of the right shall have the relevant qualification as a subject and comply with the provisions of the Trademark Law, the Implementing Regulations and these Measures. Article 17 The collective members of the registrant of a collective mark may use the collective mark after going through the procedure under the regulation governing the use of the mark. Article 18 Any party eligible for the conditions stipulated in the regulation governing the use of a certification mark may use the mark after going through the procedure prescribed therein, and the registrant shall not refuse the party to go through the procedure. The fair use of a geographic indication under paragraph two of Article 6 of the Implementing Regulations shall refer to the fair use of the geographic name of the said geographic indication. Article 19 To authorize the use of a collective mark, the registrant shall issue the user a Collective Mark Use Permit. To authorize the use of a certification mark, the registrant shall issue the user a Certification Mark Use Permit. Article 20 The registrant of a certification mark shall not use the certification mark on goods provided by himself or itself. Article 21 Where the registrant of a collective mark or a certification mark fails to exercise effective governing of, or control on, the use of the mark and , as a result, the goods to which the said mark applies fail to meet the requirements of the regulation governing the use of the mark, causing damages to consumers, the administrative authority for industry and commerce shall order him or it to rectify the situation within a time limit. If the registrant refuses to do so, he or it shall be imposed a fine of three times of the illicit income, but not exceeding RMB30,000 Yuan; in the absence of any illicit income, a fine of RMB10,000 Yuan shall be imposed. Article 22 Where the provisions of Article 6 of the Implementing Regulations and Article 14,15,17,18 and 20 of these Measures are violated, the administrative authority for industry and commerce shall order him or it to rectify the situation within a time limit. If he or it refuses to do so, a fine of three times of the illicit income shall be imposed, but not exceeding RMB30,000 Yuan; in the absence of any illicit income, a fine of RMB10,000 Yuan shall be imposed. Article 23 These Measures shall come into force on June 1, 2003. The Regulation for the Registration and Administration of Collective Marks and Certification Marks issued by the State Administration for Industry and Commerce on December 30, 1994 shall be abrogated simultaneously.
Provisions on the Determination And Protection of Well-know Marks
Provisions on the Determination And Protection of Well-know Marks (Issued by the State Administration for Industry and Commerce On April 17, 2003) Article 1 These provisions are formulated in accordance with the Trademark Law of the People's Republic of China (hereinafter referred to as the Trademark Law) and the Implementing Regulations for the Trademark Law of the People's Republic of China (hereinafter referred to as the Implementing Regulations). Article 2 For the purpose of these Provisions, a well-known mark refers to a mark that is widely known to the relevant sectors of the public and enjoys a relatively high reputation in China. Relevant sectors of the public shall include consumers of the type of goods and /or services to which the mark applies, operators who manufacture the said goods or provide the said services, and sellers and other persons involved in the channels of distribution of the type of goods and/or services to which the mark applies. Article 3 The following may serve as evidences to prove that a mark is well-know: (1) documents concerning the degree of knowledge or recognition of the mark in the relevant sector of the public; (2) documents concerning the duration of the use of the mark, including those related to the history and scope of the use and the registration of the mark; (3) documents concerning the duration, extent and geographical area of any promotion of the mark, including the approach to, geographic area of , the type of media for and the amount of advertisements for the promotion of the mark; (4) documents concerning the record of successful enforcement of rights in the mark, including the relevant documents certifying the mark in question was once protected as a well-known mark in China or any other country/region; (5) other evidences certifying that the mark is well-known, including, in the past 3 years, the outputs, sales volumes, sales incomes, profits and taxes and sales regions etc. of the principal goods to which the mark applies. Article 4 Where any interested party believes that another party's preliminarily examined and published mark violates the provision of Article 13 of the Trademark Law, he or it may, according to the provisions of the Trademark Law and the Implementing Regulations, file an opposition with the Trademark Office and submit relevant documents certifying that his or its mark is well known. Where any interested party believes that another party's registered mark violates the provision of Article 13 of the Trademark Law, he or it may, according to the provisions of the Trademark Law and the Implementing regulations, request the Trademark Review and Adjudication Board to cancel the registered mark in question and submit relevant documents certifying that his or its mark is well known. Article 5 In the process of trademark administration, where any interested party believes that another party's use of a mark falls within the circumstances provided for in Article 13 of the Trademark Law and requests for the protection of his or its well-known mark, he or it may file a request in writing for the prohibition of the alleged use with the administrative authorities for industry and commerce at or above the city (prefecture or autonomous prefecture) level of the place where the case arises, and submit relevant documents. Meanwhile, the interested party shall send a copy to the administrative authority for industry and commerce of the province where he or it has domicile. Article 6 In the process of trademark administration, the administrative authority for industry and commerce shall, on receiving an application for the protection of a well-known mark, examine the case as to whether it falls within the following circumstances under Article 13 of the Trademark Law: (1) where another person's unauthorized use of a mark that is identical with or similar to an interested party's well-known mark not registered in China on identical or similar goods is liable to create confusion; (2) where another person's unauthorized use of a mark that is identical with or similar to an interested party's well-known mark registered in China on non-identical or dissimilar goods is liable to mislead the public, and the interests of the registrant of the well-known mark are likely to be damaged by such use; In respect of cases held to have fallen within the above-mentioned circumstances, the city (autonomous prefecture or autonomous prefecture) administrative authority for industry and commerce shall, within 15 workdays from the date of acceptance of the request of the interested party, report and send all the documents of the case to the administrative authority for industry and commerce of the province (autonomous region or municipality directly under the Central Government) where it is located, and issue a notification of acceptance of the case to the interested party. The provincial (autonomous region or municipality directly under the Central Government) administrative authority for industry and commerce shall, within 15 workdays from the date of acceptance of the request of the interested party, report and send all the documents of the case to the Trademark Office. If the administrative authority for industry and commerce of the province where the interested party has his or its domicile holds that the case falls within the above-mentioned circumstances, it may also report in writing the case to the Trademark Office. Cases held not to fall within the said circumstances shall be dealt with timely according to the relevant provisions of the Trademark Law and its Implementing Regulations. Article 7 The administrative authority for industry and commerce of the province (autonomous region or municipality directly under the Central Government) shall examine the documents of cases concerning the protection of well-known marks reported and sent by city (prefecture or autonomous prefecture) administrative authorities for industry and commerce within its administrative region. Where a case is held to fall within the circumstance of paragraph 1 of Article 6 under these provisions, the provincial (autonomous region or municipality directly under the Central Government) administrative authority for industry and commerce shall report and send it to the Trademark Office within 15 workdays from the date of its receipt of the case documents from the city (prefecture or autonomous prefecture) administrative authority for industry and commerce within its administrative region. Where a case is held not to fall within the circumstance of paragraph 1 of Article 6 under these provisions, the provincial (autonomous region or municipality directly under the Central Government) administrative authority for industry and commerce shall return the case to the authority that initially accepts it and the latter shall deal with the case timely according to the relevant provisions of the Trademark Law and its Implementing Regulations. Article 8 The Trademark Office shall make determination within 6 months from the date of the receipt of the relevant documents of a case, notify the result of the determination to the provincial (autonomous region or municipality directly under the Central Government) administrative authority for industry and commerce of the place where the case arises and send duplication thereof to the provincial (autonomous region or municipality directly under the Central Government) administrative authority for industry and commerce of the place where the interested party has his or its domicile. The Trademark Office shall return the documents of the case, except those certifying the mark is well-known, to the administrative authority for industry and commerce of the province (autonomous region or municipality directly under the Central Government) where the case arise. Article 9 Where a mark is not determined as well-known, the interested party shall not file a new application for the determination of the same mark on the basis of the same facts and grounds within one year from the date on which the determination is made. Article 10 When determining a well-known mark, the Trademark Office or the Trademark Adjudication Board shall comprehensively consider each and every factor under Article 14 of the Trademark Law, but it shall not be the prerequisite that the mark shall satisfy all the factors prescribed therein. Article 11 In the protection of well-known marks, the Trademark Office, the Trademark Review and Adjudication Board and the local administrative authorities for industry and commerce shall take into account of the mark's distinctiveness and the extent of its being well-known. Article 12 When requesting for the protection of his or its mark according to Article 13 under the Trademark Law, an interested party may furnish the record of the mark once being protected as a well-known one by the relevant competent authority in China. Where the scope of protection of an accepted case is substantially the same as that of a mark being protected as a well-known mark and where the opposite party raises no opposition to the said mark's being well-known , and where, although he raises the opposition thereto, the opposite party cannot furnish any document certifying that the said mark is not well-known, the administrative authority for industry and commerce accepting the case may adjudicate or deal with the case in the light of the conclusion of the protection record. Where the scope of protection of an accepted case is different from that of a mark being protected, or where the opposite party raises opposition to the said mark's being well-known, and he furnishes documents certifying that the said mark is not well-known, the Trademark Office or the Trademark Review and Adjudication Board shall re-examine the documents of the well-known mark in question and make a determination. Article 13 Where an interested party believes that another party has registered his or its well-known mark as an enterprise name, which is likely to deceive or mislead the public, he or it may apply to the competent authority for the registration of enterprise names for the cancellation of the registration of the enterprise name in question. The competent authority for the registration of enterprise names shall deal with the case in accordance with the Provisions for the Administration of the Registration of Enterprise Names. Article 14 The administrative authority for industry and commerce at various levels shall enhance the protection of well-known marks, and timely transfer cases of suspected crime of counterfeiting trademarks to the competent authority concerned. Article 15 The administrative authority for industry and commerce of the province (autonomous region or municipality directly under the Central Government) of the place where the authority handling the case is located shall send the Trademark Office a copy of the decision on the protection of a well-known mark. Article 16 The administrative authority for industry and commerce at various levels shall establish corresponding supervisory mechanisms and formulate corresponding supervisory control measures to enhance the supervision and inspection of the whole process for the determination of well-known marks. Where any member of staff who is involved in the determination of well-known marks abuses his power, practices fraud for his personal gains, seeks illicit interests or handles, in violation of law, matters concerning the determination of well-known marks, he or she shall be subject to administrative disciplinary measures according to law. Where the case is so serious as to constitute a crime, the person involved shall be prosecuted, according to law, for his or her criminal liabilities. Article 17 These provisions shall enter into force on June1, 2003. The Provisional Regulations Concerning the Determination and Administration of well-know Marks issued by the State Administration for Industry and Commerce on August 14 ,1996, shall be abrogated on the same date.
Regulations for the Implementation of TM Law
Regulations for the Implementation of TM Law Regulations for the Implementation of the Trademark Law of the People's Republic of China (Promulgated by Decree No.358 of the State Council of the People's Republic of China on August 3, 2002, and effective as of September 15, 2002) Chapter I General Provisions 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 Provisions regarding the goods trademarks in these Regulations shall apply to service marks. Article 3 The use of a trademark, as referred to in the Trademark Law and these Regulations, shall include the use of the trademark on goods, packages or containers of the goods or in trading documents, and the use of the trademark in advertising, exhibition or any other business activities. Article 4 Goods on which the State requires the use of a registered trademark, as mentioned in Article 6 of the Trademark Law, refer to those on which a registered trademark must be used as required by laws or administrative regulations. Article 5 Where a dispute arises in the procedures of trademark registration or trademark review and adjudication and the party concerned believes that its trademark constitutes a well-known trademark, it may, in accordance with the provisions of the Trademark Law and these Regulations, request the Trademark Office or the Trademark Review and Adjudication Board to determine whether its trademark constitutes a well-known trademark or not and to refuse the application for trademark registration which is in violation of the provisions of Article 13 of the Trademark Law or to cancel the trademark registration which is in violation of the provisions of Article 13 of the Trademark Law. When an application for this purpose is filed, the party concerned shall submit evidence to prove that its trademark constitutes a well-known trademark. At the request of the party, the Trademark Office or the Trademark Review and Adjudication Board shall, on the basis of ascertaining the facts, determine whether its trademark is a well-known one or not in accordance with the provisions of Article 14 of the Trademark Law. Article 6 For geographical indications referred to in Article 16 of the Trademark Law, applications may be filed to register them as certification marks or collective marks under the provisions of the Trademark Law and these Regulations. Where a geographical indication is registered as a certification mark, any natural person, legal person or other organization whose goods satisfy the conditions under which the geographical indication is used may request the use of the certification mark, and the organization in control of such certification mark shall permit the use. Where a geographical indication is registered as a collective mark, any natural person, legal person or other organization whose goods satisfy the conditions under which the geographical indication is used may request the membership of the society, association or any other organization that has the geographical indication registered as a collective mark, and the society, association or any other organization shall accept the membership in accordance with its articles of association; those who do not request the membership of the society, association or any other organization that has the geographical indication registered as a collective mark may legitimately use the geographical indication, and the society, association or any other organization is not entitled to prohibit such use. Article 7 Where a party entrusts a trademark agency with the application for registration of a trademark or with the handling of other trademark matters, a Power of Attorney shall be submitted. The Power of Attorney shall state the contents and the scope of powers; the Power of Attorney of a foreigner or foreign enterprise shall also state the nationality of the principal. Procedures for notarizing and authenticating the Power of Attorney and certifying documents relating thereto of a foreigner or foreign enterprise shall be undertaken based on the principle of reciprocity. As mentioned in Article 18 of the Trademark Law, a foreigner or foreign enterprise refers to a foreigner or foreign enterprise having no habitual residence or place of business in China. Article 8 The Chinese language shall be used in applying for trademark registration or handling other trademark matters. Where any certificate, certifying document or evidence submitted in accordance with the provisions of the Trademark Law and these Regulations is written in a foreign language, a Chinese translation shall be attached thereto; if no Chinese translation is attached, it shall be deemed that the certificate, certifying document or evidence has never been submitted. Article 9 In any of the following situations, a staff member of the Trademark Office or the Trademark Review and Adjudication Board shall voluntarily recuse himself, and a party or an interested person may demand his recusal: (1) if he is a party, or a close relative of a party or an agent; (2) if he has any other relation with a party or an agent that may affect impartiality; or (3) if he has an interest with the application for trademark registration or the handling of other trademark matters. Article 10 Except as otherwise provided in these Regulations, the date on which a party submits documents or papers to the Trademark Office or the Trademark Review and Adjudication Board shall be the date of delivery if the documents or papers are submitted in person, or be the mailing date indicated by the postmark if they are sent by mail, or, if the mailing date indicated by the postmark is illegible or there is no postmark, be the date on which all of the papers or documents are received in the Trademark Office or the Trademark Review and Adjudication Board, except if the party can provide evidence of the exact date indicated by the postmark. Article 11 The documents of the Trademark Office or the Trademark Review and Adjudication Board may be sent to a party by mail, in person or by other means. Where the party entrusts a trademark agency, the documents shall be considered served on the party once they are delivered to the trademark agency. The date of service of any document on a party by the Trademark Office or the Trademark Review and Adjudication Board shall, if the document is sent by mail, be the receiving date indicated by the postmark on which the document is received; if the receiving date indicated by the postmark is illegible or there is no postmark, the document shall be considered served on the party 15 days after the date on which the document is sent. If the document is delivered in person, the date of service shall be the date on which the document is delivered. If the document cannot be sent by mail or delivered in person, it may be served on the party by means of public notice, and the service of the document shall be considered completed 30 days after the date on which the public notice is issued. Article 12 Applications for international registration of trademarks shall be dealt with in accordance with the relevant international treaties to which China has acceded. The specific measures therefor shall be formulated by the authority of administration for industry and commerce under the State Council. Chapter II Application for Trademark Registration Article 13 Anyone who applies for registration of a trademark shall file an application based on the categories in the published Classification of Goods and Services. For each application for registration of a trademark, the applicant shall submit to the Trademark Office one copy of the Application for Trademark Registration and five copies of reproductions of the trademark; if color or colors is or are designated, five copies of colored reproductions of the trademark and one copy of the black and white design shall be submitted. The reproductions of a trademark must be clear, easy to be pasted up, printed on smooth and clear durable paper or use photographs as a substitute, and the length and breadth of which shall be not more than ten centimeters and not less than five centimeters each. If applying for the registration of a three-dimensional sign as a trademark, the applicant shall make a statement in the application, and submit a reproduction thereof by which the three-dimensional shape can be determined. If applying for the registration of the combination of colors as a trademark, the applicant shall make a statement in the application, and submit the descriptions thereof. If applying for the registration of a collective mark or a certification mark, the applicant shall make a statement in the application, and submit the documents certifying the qualifications of the subjects and the rules on the administration of the use of the mark. Where a trademark is, or consists of, foreign words, their Chinese meanings shall be indicated. Article 14 When applying for the registration of a trademark, the applicant shall submit a duplicated copy of the valid credentials that can certify its identity. The name in which the applicant has filed the application for trademark registration shall be consistent with that shown in the credentials submitted. Article 15 The goods or services shall be listed as specified in the Classification of Goods and Services; where any goods or services are not included in the Classification of Goods and Services, a description of the goods or services in question shall be attached to the application. Applications for trademark registration and other related documents shall be typewritten or printed. Article 16 Where an application is jointly filed for the registration of a trademark, a representative shall be designated in the application; if no representative is designated, the first person in order in the application shall be the representative. Article 17 Where an applicant modifies its name, address, agent, or deletes the goods designated, it may go through the formalities of modification with the Trademark Office. Where an applicant assigns an application for trademark registration, it shall go through the formalities of assignment with the Trademark Office. Article 18 The filing date of an application for trademark registration shall be the date on which the application documents are received by the Trademark Office. Where the application formalities are complete and the application documents are filled in as required, the Trademark Office shall accept the application and notify the applicant in writing. Where the application formalities are not complete and the application documents are not filled in as required, the Trademark Office shall not accept the application and shall notify the applicant in writing and give the reasons therefor. Where the application formalities are basically complete or the application documents are basically in compliance with the provisions, but there is a need for supplements or amendments, the Trademark Office shall notify the applicant to make supplements or amendments, requesting it to make supplements or amendments to the specified parts and deliver them back to the Trademark Office within 30 days from the date of receipt of the notification. Where the supplements or amendments are made and delivered back to the Trademark Office within the specified time limit, the filing date shall be retained; where no supplements or amendments are made at the expiration of the specified time limit, the application shall be considered abandoned and the Trademark Office shall notify the applicant in writing. Article 19 Where two or more applicants apply respectively on the same day for the registration of identical or similar trademarks in respect of the same or similar goods, both or all of the applicants shall, within 30 days from the date of receipt of the notification of the Trademark Office, submit the evidence of prior use of such trademarks before applying for registration. Where the use started on the same day or none is yet in use, both or all of the applicants may, within 30 days from the date of receipt of the notification of the Trademark Office, conduct consultations on their own and submit a written agreement to the Trademark Office; if they are not willing to conduct consultations or they fail to reach an agreement through consultations, the Trademark Office shall notify both or all of the applicants to determine one of them by drawing lots and refuse the applications for registration filed by others. Where an applicant has been notified by the Trademark Office but fails to participate in the drawing of lots, the application filed by such an applicant shall be considered abandoned, and the Trademark Office shall notify the applicant in writing who does not participate in the drawing of lots. Article 20 Where a priority is claimed in accordance with the provisions of Article 24 of the Trademark Law, the copies of the application documents submitted by the applicant for the first time for registering the trademark in question shall be certified by the competent trademark authority which accepts the said application, and the filing date and serial number of the application shall be indicated. Where a priority is claimed in accordance with the provisions of Article 25 of the Trademark Law, the certifying documents submitted by the applicant shall be authenticated by the institution specified by the authority of administration for industry and commerce under the State Council, except that the international exhibition on which the applicant's goods are displayed is held within Chinese territory. Chapter III Examination of Applications for Trademark Registration Article 21 The Trademark Office shall, in accordance with the relevant provisions of the Trademark Law and these Regulations, examine the applications for trademark registration it has accepted, granting preliminary approval to those that are in compliance with the provisions and to the applications for the registration of trademarks used on some of the designated goods that are in compliance with the provisions, and publishing them; the application that is not in compliance with the provisions and the application for the registration of a trademark used on some of the designated goods that is not in compliance with the provisions shall be refused, the applicant shall be notified in writing and the reasons therefor shall be given. Where the Trademark Office grants preliminary approval to an application for the registration of a trademark used on some of the designated goods, the applicant may, before the date on which the opposition period expires, apply to abandon the application for the registration of the trademark used on some of the designated goods; where the applicant abandons the application for the registration of a trademark used on some of the designated goods, the Trademark Office shall withdraw the previous preliminary approval, terminate the examination proceedings and republish it. Article 22 Where an opposition is filed against a trademark which has been preliminarily approved and published by the Trademark Office, the opponent shall submit in duplicate an Application for Trademark Opposition to the Trademark Office. The Application for Trademark Opposition shall specify both the issue number of the Trademark Gazette in which the opposed trademark is published and the number of the preliminary approval. The Application for Trademark Opposition shall state the requests and grounds in plain terms, and the relevant evidence shall be attached thereto. The Trademark Office shall promptly send a copy of the Application for Trademark Opposition to the opposed party, who shall be requested to make a response within 30 days from the date of receipt of the copy of the Application for Trademark Opposition. If the opposed party fails to make a response, it shall not affect the Trademark Office's ruling of the opposition. Where a party needs to supplement related evidence after filing an application of opposition or making a response, it shall make a statement for this purpose in the application or in the response made in writing, and submit the said evidence within three months from the date on which the application is filed or the response is made in writing; if no evidence is submitted at the expiry of the time limit, the party shall be considered given up the supplementing of related evidence. Article 23 A justified opposition referred to in the second paragraph of Article 34 of the Trademark Law shall include the opposition that is justified for some of the designated goods. If an opposition is justified for some of the designated goods, the application for the registration of the trademark on this part of the designated goods shall not be approved. Where an opposed trademark is already published as a registered trademark prior to the entry into force of the ruling on the opposition, the publishing of the registration shall be canceled, and the trademark the registration of which has been approved upon the ruling of the opposition shall be republished. Where the registration of a trademark has been approved upon the ruling of an opposition, from the date of expiration of the opposition period to the date of entry into force of the ruling on the opposition, it shall have no retroactive effect on the use by another party of the marks that are identical or similar to the said trademark on the same or similar goods. However, the user shall make compensation for any loss suffered by the trademark registrant as a result of the user's bad faith. Where the registration of a trademark has been approved upon the ruling of an opposition, the period for filing an application for review and adjudication thereof shall be counted from the date on which the ruling on the opposition to the said trademark is published. Chapter IV Modification, Assignment and Renewal of Registered Trademarks Article 24 Where the name or address of a trademark registrant or any other registration matter is to be modified, the applicant shall submit an application for modification to the Trademark Office. The Trademark Office shall, upon approval, issue a corresponding certification to the trademark registrant and publish the modification; if no approval is granted, the applicant shall be notified in writing and the reasons therefor shall be given. Where the name of a trademark registrant is to be modified, the modification certification issued by the relevant registration authorities shall be also submitted. If the modification certification is not submitted, it may be submitted within 30 days from the date on which the application is filed; if it is not submitted at the expiry of the time limit, the application for modification shall be considered abandoned and the Trademark Office shall notify the applicant in writing. Where the name or address of a trademark registrant is to be modified, the trademark registrant shall make the modification in respect of all its registered trademarks in a lump; if they are not so modified, the application for modification shall be considered abandoned and the Trademark Office shall notify the applicant in writing. Article 25 When a registered trademark is to be assigned, both the assignor and assignee shall jointly send an application for assignment of the registered trademark to the Trademark Office. The assignee shall go through the formalities for the application for assignment of the registered trademark. The Trademark Office shall, upon approval of the application for assignment of the registered trademark, issue the assignee a corresponding certification and publish the assignment. Where a registered trademark is to be assigned, the trademark registrant shall assign in a lump all of its trademarks that are identical or similar to each other in respect of the same or similar goods; if they are not so assigned, the Trademark Office shall notify it to rectify the situation within a specified time limit; if it fails to rectify it at the expiry of the said time limit, the application for assignment of the registered trademark shall be considered abandoned, and the Trademark Office shall notify the applicant in writing. With respect to applications for the assignment of registered trademarks, which may produce misleading, confusing or other adverse effects, the Trademark Office shall refuse them, and shall notify the applicants in writing and give the reasons therefor. Article 26 Where the exclusive right to use a registered trademark is transferred due to the reasons other than assignment, the party who accepts the transfer of the exclusive right to use the registered trademark shall, by producing the relevant evidential documents or legal instruments, go through the formalities of the transfer of the exclusive right to use the registered trademark with the Trademark Office. Where the exclusive right to use a registered trademark is transferred, the right holder shall assign in a lump all of its trademarks that are identical or similar to each other in respect of the same or similar goods; if they are not so transferred, the Trademark Office shall notify it to rectify the situation within a specified time limit; if it fails to rectify it at the expiry of the said time limit, the application for transfer of the registered trademark shall be considered abandoned, and the Trademark Office shall notify the applicant in writing. Article 27 Where the registration of a registered trademark needs to be renewed, an application for renewal of registration of the trademark shall be submitted to the Trademark Office. The Trademark Office shall, upon approval of the application for renewal of registration of the trademark, issue a corresponding certification and publish the renewal. The period of validity of a renewed trademark registration shall be calculated from the day following the expiration of the previous period of validity of such a trademark. Chapter V Review and Adjudication of Trademarks Article 28 The Trademark Review and Adjudication Board shall accept applications for trademark review and adjudication filed under Articles 32, 33, 41 and 49 of the Trademark Law. The Trademark Review and Adjudication Board shall, on the basis of facts, conduct review and adjudication according to law. Article 29 As referred to in the third paragraph of Article 41 of the Trademark Law, "a dispute against a registered trademark" means that a prior trademark registrant believes that a trademark registered later by another party is identical or similar to its registered trademark in respect of the same or similar goods. Article 30 When applying for trademark review and adjudication, an application shall be submitted to the Trademark Review and Adjudication Board, accompanied with the copies corresponding to the number of the other party. If an application for review and adjudication is filed on the basis of the decision or the ruling made by the Trademark Office, the copies of such decision or ruling shall also be filed. Upon receiving the application, the Trademark Review and Adjudication Board shall, upon examination, accept it if the requirements for acceptance are satisfied; if the requirements for acceptance are not satisfied, it shall not accept the application, and shall notify the applicant in writing and give the reasons therefor. If the application needs to be supplemented or corrected, the applicant shall be notified to make supplements or corrections within 30 days from the date of receipt of the notification. If, after being supplemented or corrected, the application still does not conform to the provisions, the Trademark Review and Adjudication Board shall refuse it, and notify the applicant in writing and give the reasons therefor; if no supplements or corrections are made at the expiry of the specified time limit, the application shall be considered withdrawn and the Trademark Review and Adjudication Board shall notify the applicant in writing. If the Trademark Review and Adjudication Board finds that an application does not satisfy the requirements for acceptance after it has accepted the application, it shall refuse the application, notify the applicant in writing and give the reasons therefor. Article 31 The Trademark Review and Adjudication Board shall, upon the acceptance of the application for trademark review and adjudication, send in time the copy of the application to the other party, who shall be required to make a response within 30 days from the date of receipt of such copy. If no response is made at the expiry of the time limit, it shall not affect the Trademark Review and Adjudication Board's review and adjudication. Article 32 Where a party needs to supplement related evidence after filing an application for review and adjudication or making a response, a statement for this purpose shall be made in the application or in the response, and the said evidence shall be submitted within three months from the date on which the application is filed or the response is made; if no evidence is submitted at the expiry of the time limit, the party shall be considered given up the supplementing of related evidence. Article 33 The Trademark Review and Adjudication Board may, at the request of a party or on the basis of the practical needs, decide to review and adjudicate an application for review and adjudication in public session. Where the Trademark Review and Adjudication Board decides to review and adjudicate the application for review and adjudication in public session, it shall notify in writing the parties 15 days before the public review and adjudication, informing them of the date, venue and persons conducting the public review and adjudication. The parties shall make a response within the time limit specified in the written notice. Where the applicant does not make a response nor appear at the public review and adjudication, its application for review and adjudication shall be considered withdrawn, and the Trademark Review and Adjudication Board shall notify the applicant in writing. If the other party does not make a response nor appear at the public review and adjudication, the Trademark Review and Adjudication Board may conduct the review and adjudication by default. Article 34 Where an applicant requests to withdraw its application before the Trademark Review and Adjudication Board makes a decision or ruling, it may withdraw its application after making an explanation of the reasons therefor in writing to the Trademark Review and Adjudication Board; where an application is withdrawn, the review and adjudication proceedings shall be terminated. Article 35 Where an application for trademark review and adjudication has been withdrawn, the applicant shall not file another application for review and adjudication on the basis of the same facts and grounds. Where the Trademark Review and Adjudication Board has already made a decision or ruling on an application for trademark review and adjudication, no one shall file another application for review and adjudication on the basis of the same facts and grounds. Article 36 Where a registered trademark is canceled pursuant to Article 41 of the Trademark Law, the exclusive right to use the said trademark shall be deemed as not existing from the very beginning. A decision or ruling on canceling a registered trademark shall have no retroactive effect on any judgment or order on any trademark infringement case made and already enforced by the people's court before the cancellation, nor on any decision on any trademark infringement case made and already enforced by the authority of administration for industry and commerce before the cancellation, and nor on any trademark assignment contract or trademark license contract already performed before the cancellation. However, the trademark registrant shall compensate any loss caused to another person due to its bad faith. Chapter VI Administration of the Use of Trademarks Article 37 Where a registered trademark is used, the characters "registered trademark" or a registration mark may be indicated on goods, packages of goods, descriptions of goods or other ancillary items. The registration mark includes Zhu(Chinese transliteration) and ®, which, in the use of such registration mark, shall be placed on the upper or lower right-hand corner. Article 38 Where a Certificate of Trademark Registration is lost or damaged, an application for reissuance shall be filed with the Trademark Office. Where a Certificate of Trademark Registration is lost, a loss declaration shall be published in the Trademark Gazette. The damaged Certificate of Trademark Registration shall be sent back to the Trademark Office when the application for reissuance is submitted. Where a Certificate of Trademark Registration is forged or altered, criminal liability shall be investigated for according to the provisions of the criminal law on the crime of forging or altering certificates of State organs or other crimes. Article 39 With respect to any of the acts referred to in Article 44 (1), (2) and (3) of the Trademark Law, the authority of administration for industry and commerce shall order the trademark registrant to rectify the situation within a specified time limit; where there is a refusal to rectify, it shall report to the Trademark Office for the cancellation of the registered trademark. With respect to the act referred to in Article 44 (4) of the Trademark Law, any person may apply to the Trademark Office for the cancellation of such registered trademark, and state the relevant circumstances. The Trademark Office shall notify the trademark registrant to, within two months from the date of receipt of the notification, provide evidence of use of the trademark prior to the submission of the application for cancellation, or explain proper reasons for non-use. If, at the expiry of the time limit, no evidence of use is provided or the evidence provided is invalid and there are no proper reasons for non-use, the Trademark Office shall cancel the registered trademark. The evidence referred to in the preceding paragraph includes the evidence of use of the registered trademark by the trademark registrant and the evidence of licensing another person by the trademark registrant to use its registered trademark. Article 40 For a registered trademark canceled under Article 44 or 45 of the Trademark Law, the Trademark Office shall publish it, and the exclusive right to use the said registered trademark shall be terminated from the date on which the Trademark Office makes the decision of cancellation. Article 41 Where a registered trademark is canceled by the Trademark Office or the Trademark Review and Adjudication Board and the grounds for the cancellation involve some of the designated goods only, the registered trademark used on such goods shall be canceled. Article 42 The amount of a fine imposed under Articles 45 and 48 of the Trademark Law shall be not more than 20% of the volume of the illegal business or not more than two times of the profit illegally earned. The amount of a fine imposed under Article 47 of the Trademark Law shall be not more than 10% of the volume of the illegal business. Article 43 Where licensing another person to use its registered trademark, the licensor shall, within three months from the date of conclusion of the license contract, submit the copy of the contract to the Trademark Office for the record. Article 44 Where anyone violates the provisions of the second paragraph of Article 40 of the Trademark Law, the authority of administration for industry and commerce shall order it to make corrections within a specified time limit, or seize the representations of its trademark if no corrections are made at the expiry of the specified time limit. Where it is impossible to separate the representations of the trademark from the goods involved, both of them shall be seized and destroyed. Article 45 Where the use of a trademark is in violation of the provisions of Article 13 of the Trademark Law, the party concerned may request the authority of administration for industry and commerce to prohibit such use. When filing an application for this purpose, the party shall submit evidence proving that its mark constitutes a well-known trademark. If the mark is determined as a well-known trademark by the Trademark Office pursuant to Article 14 of the Trademark Law, the authority of administration for industry and commerce shall order the infringer to stop the act of using the well-known trademark in violation of the provisions of Article 13 of the Trademark Law, seize and destroy the representations of the trademark; where it is impossible to separate the representations of the trademark from the goods involved, both of them shall be seized and destroyed. Article 46 A trademark registrant applying for the removal of its registered trademark or for the removal of the registration of its trademark used on some of the designated goods from the Trademark Register shall submit an application for the removal of the trademark to the Trademark Office and return the original Certificate of Trademark Registration. Where a trademark registrant applies for the removal of its registered trademark or the removal of the registration of its trademark on some of the designated goods from the Trademark Register, the exclusive right to use the registered trademark or the effect of the exclusive right to use the registered trademark on some of the designated goods shall be terminated from the date on which the Trademark Office receives the application for removal. Article 47 Where a trademark registrant dies or terminates, each and every person may, at the expiry of one year from the date of death or termination, apply to the Trademark Office for the removal of the registered trademark in question from the Trademark Register if no formalities of transfer have been conducted with respect to the registered trademark. When applying for the removal, the applicant shall submit the evidence certifying the death or termination of the trademark registrant. Where a registered trademark is removed from the Trademark Register due to the death or termination of the trademark registrant, the exclusive right to use the registered trademark shall cease from the date of death or termination of the trademark registrant. Article 48 Where a registered trademark is canceled or removed from the Trademark Register as provided in Articles 46 and 47 of these Regulations, the original Certificate of Trademark Registration shall become invalid. Where the registration of the trademark on some of the designated goods is canceled or the trademark registrant applies for the removal of the registration of its trademark on some of the designated goods from the Trademark Register, the Trademark Office shall make a note on the original Certificate of Trademark Registration and return it to the registrant, or reissue the Certificate of Trademark Registration and publish it. Chapter VII Protection of the Exclusive Right to Use a Registered Trademark Article 49 Where a registered trademark consists of the generic name, design or model of the goods in question, or directly shows the quality, main raw materials, functions, intended purposes, weight, quantity or other characteristics of the goods in question, or consists of geographical names, the proprietor of the exclusive right to use the registered trademark shall have no right to prohibit the fair use thereof by another person. Article 50 Any of the following acts shall constitute an infringement on the exclusive right to use a registered trademark referred to in Article 52 (5) of the Trademark Law: (1) using any signs which are identical or similar to another person's registered trademark as the name of the goods or decoration of the goods on the same or similar goods, thus misleading the public; (2) intentionally providing facilities such as storage, transport, mailing, concealing, etc. for the purpose of infringing another person's exclusive right to use a registered trademark. Article 51 Where the exclusive right to use a registered trademark is infringed upon, each and every person may lodge a complaint with or report the case to the authority of administration for industry and commerce. Article 52 The amount of a fine imposed on an act infringing the exclusive right to use a registered trademark shall be not more than three times of the volume of the illegal business. If it is impossible to calculate the volume of the illegal business, the amount of the fine shall be not more than 100,000 yuan. Article 53 A trademark owner who believes that the registration of its well-known trademark as an enterprise name by another person is likely to deceive or mislead the public may apply to the competent registration authorities of enterprise names for the cancellation of the registration of the enterprise name. The competent registration authorities of enterprise names shall handle the case in accordance with the Provisions on Administration of Enterprise Name Registration. Chapter VIII Supplementary Provisions Article 54 Service marks continuously in use to July 1, 1993, which are identical or similar to any registered service marks of another person for the same or similar services, may continue to be used; however, if such use is suspended for a period of three years or more after July 1, 1993, it shall not be used any longer. Article 55 The specific measures for the administration of trademark agency shall be separately formulated by the State Council. Article 56 The Classification of Goods and Services for trademark registration shall be worked out and published by the authority of administration for industry and commerce under the State Council. The format of the documents for applying for trademark registration or for handling other trademark matters shall be determined and published by the authority of administration for industry and commerce under the State Council. The rules on review and adjudication to be followed by the Trademark Review and Adjudication Board shall be formulated and promulgated by the authority of administration for industry and commerce under the State Council. Article 57 The Trademark Office shall establish and keep the Trademark Register recording registered trademarks and other registration matters. The Trademark Office shall compile and issue the Trademark Gazette publishing trademark registration and other related matters. Article 58 Fees shall be paid for applying for trademark registration or for handling other trademark matters. The items and standards for collecting fees shall be prescribed and published by the authority of administration for industry and commerce under the State Council jointly with the competent department for pricing of the State Council. Article 59 These Regulations shall become effective as of September 15, 2002. The Rules for the Implementation of the Trademark Law of the People's Republic of China, which was promulgated by the State Council on March 10, 1983, revised for the first time with the approval of the State Council on January 3, 1988 and revised for the second time with the approval of the State Council on July 15, 1993, and the Official Reply from the State Council Concerning Papers Furnished as Attachments to Applications for Trademark Registration, which was issued on April 23, 1995, shall be repealed simultaneously.
Trademark Law of the People's Republic of China
Trademark Law of the People's Republic of China (Adopted at the 24th Session of the Standing Committee of the Fifth National People's Congress on 23 August 1982, revised for the first time according to the Decision on the Amendment of the Trademark Law of the People's Republic of China adopted at the 30th Session of the Standing Committee of the Seventh National People's Congress, on 22 February 1993, and revised for the second time according to the Decision on the Amendment of the Trademark Law of the People's Republic of China adopted at the 24th Session of the Standing Committee of the Ninth National People's Congress on 27 October 2001.) Chapter l General Provisions Article 1 This Law is enacted for the purposes of improving the administration of trademarks, protecting the exclusive right to use trademarks, and of encouraging producers and operators to guarantee the quality of their goods and services and maintaining the reputation of their trademarks, with a view to protecting the interests of consumers, producers and operators and to promoting the development of the socialist market economy. Article 2 The Trademark Office of the administrative authority for industry and commerce under the State Council shall be responsible for the registration and administration of trademarks throughout the country. The Trademark Review and Adjudication Board, established under the administrative authority for industry and commerce under the State Council, shall be responsible for handling matters of trademark disputes. Article 3 Registered trademarks mean trademarks that have been approved and registered by the Trademark Office, including trademarks, service marks, collective marks and certification marks; the trademark registrants shall enjoy the exclusive right to use the trademarks, and be protected by law. Said collective marks mean sings which are registered in the name of bodies, associations or other organizations to be used by the members thereof in their commercial activities to indicate their membership of the organizations. Said certification marks mean signs which are controlled by organizations capable of supervising some goods or services and used by entities or individual persons outside the organization for their goods or services to certify the origin, material, mode of manufacture, quality or other characteristics of the goods or services. Regulations for the particular matters of registration and administration of collective and certification marks shall be established by the administrative authority for industry and commerce under the State Council. Article 4 Any natural person, legal entity or other organization intending to acquire the exclusive right to use a trademark for the goods produced, manufactured, processed, selected or marketed by it or him, shall file an application for the registration of the trademark with the Trademark Office. Any natural person, legal entity or other organization intending to acquire the exclusive right to use a service mark for the service provided by it or him, shall file an application for the registration of the service mark with the Trademark Office. The provisions set forth in this Law concerning trademarks shall apply to service marks. Article 5 Two or more natural persons, legal entities or other organizations may jointly file an application for the registration for the same trademark with the Trademark Office, and jointly enjoy and exercise the exclusive right to use the trademark. Article 6 As for any of such goods, as prescribed by the State, that must bear a registered trademark, a trademark registration must be applied for. Where no trademark registration has been granted, such goods cannot be marketed. Article 7 Any user of a trademark shall be responsible for the quality of the goods in respect of which the trademark is used. The administrative authorities for industry and commerce at different levels shall, through the administration of trademarks, stop any practice that deceives consumers. Article 8 In respect of any visual sign capable of distinguishing the goods or service of one natural person, legal entity or any other organization from that of others, including any word, design, letters of an alphabet, numerals, three-dimensional symbol, combinations of colours, and their combination, an application may be filed for registration. Article 9 Any trademark in respect of which an application for registration is filed shall be so distinctive as to be distinguishable, and shall not conflict with any prior right acquired by another person. A trademark registrant has the right to use the words of "registered trademark" or a symbol to indicate that his trademark is registered. Article 10 The following signs shall not be used as trademarks: (1) those identical with or similar to the State name, national flag, national emblem, military flag, or decorations, of the People's Republic of China, with names of the places where the Central and State organs are located, or with the names and designs of landmark buildings; (2) those identical with or similar to the State names, national flags, national emblems or military flags of foreign countries, except that the foreign state government agrees otherwise on the use; (3) those identical with or similar to the names, flags or emblems or names, of international intergovernmental organizations, except that the organizations agree otherwise on the use or that it is not easy for the use to mislead the public; (4) those identical with or similar to official signs and hallmarks, showing official control or warranty by them, except that the use thereof is otherwise authorized; (5) those identical with or simi1ar to the symbols, or names, of the Red Cross or the Red Crescent; (6) those having the nature of discrimination against any nationality; (7) those having the nature of exaggeration and fraud in advertising goods; and (8) those detrimental to socialist morals or customs, or having other unhealthy influences. The geographical names as the administrative divisions at or above the county level and the foreign geographical names well known to the public shall not be used as trademarks, but such geographical terms as have otherwise meanings or are a part of collective marks/or a certification marks shall be exclusive. Where a trademark using any of the above-mentioned geographical names has been approved and registered, it shall continue to be valid. Article 11 The following signs shall not be registered as trademarks: (1) those only comprising generic names, designs or models of the goods in respect of which the trademarks are used; (2) those having direct reference to the quality, main raw materials, function, use, weight, quantity or other features of the goods in respect of which the trademarks are used; and (3) those lacking distinctive features. The signs under the preceding paragraphs may be registered as trademarks where they have acquired the distinctive features through use and become readily identifiable. Article 12 Where an application is filed for registration of a three-dimensional sign as a trademark, any shape derived from the goods itself, required for obtaining the technical effect, or giving the goods substantive value, shall not be registered. Article 13 Where a trademark in respect of which the application for registration is filed for use for identical or similar goods is a reproduction, imitation or translation of another person's trademark not registered in China and likely to cause confusion, it shall be rejected for registration and prohibited from use. Where a trademark in respect of which the application for registration is filed fdr use for non-identical or dissimilar goods is a reproduction, imitation or translation of the well-known mark of another person that has been registered in China, misleads the pub1ic and is likely to create prejudice to the interests of the well-known mark registrant, it shall be rejected for registration and prohibited from use. Article 14 Account shall be taken of the fol1owing factors in establishment of a well-known mark: (l) reputation of the mark to the relevant public; (2) time for continued use of the mark; (3) consecutive time, extent and geographical area of advertisement of the mark; (4) records of protection of the mark as a well-known mark; and (5) any other factors relevant to the reputation of the mark. Article 15 Where any agent or representative registers, in its or his own name, the trademark of a person for whom it or he acts as the agent or representative without authorization therefrom, and the latter raises opposition, the trademark shall be rejected for registration and prohibited from use. Article 16 Where a trademark contains a geographic indication of the goods in respect of which the trademark is used, the goods is not from the region indicated therein and it misleads the public, it shall be rejected for registration and prohibited from use; however, any trademark that has been registered in good faith shall remain valid. The geographic indications mentioned in the preceding paragraph refer to the signs that signify the place of origin of the goods in respect of which the signs are used, their specific quality, reputation or other features as mainly decided by the natural or cultural factors of the regions. Article 17 Any foreign person or foreign enterprise intending to apply for the registration of a trademark in China shall file an application in accordance with any agreement concluded between the People's Republic of China and the country to which the applicant belongs, or according to the international treaty to which both countries are parties, or on the basis of the principles of reciprocity. Article 18 Any foreign person or foreign enterprise intending to apply for the registration of a trademark or for any other matters conceming a trademark in China sha1l appoint any of such organizations as designated by the State to act as its or his agent. Chapter II AppIication for Trademark Registration Article 19 An applicant for the registration of a trademark shall, in a form, indicate, in accordance with the prescribed classification of goods, the class of the goods and the designation of the goods in respect of which the trademark is to be used. Article 20 Where any applicant for registration of a trademark intends to use the same trademark for goods in different classes, an application for registration shall be filed in respect of each class of the prescribed classification of goods. Article 21 Where a registered trademark is to be used in respect of other goods of the same class, a new application for registration shall be filed. Article 22 Where the sign of a registered trademark is to be altered, a new registration shall be applied for. Article 23 Where, after the registration of a trademark, the name, address or other registered matters concerning the registrant change, an application regarding the change shall be filed. Article 24 Any aPp1icant for the registration of a trademark who files an application for registration of the same trademark for identica1 goods in China within six months from the date of filing the first application for the trademark registration overseas may enjoy the right of priority in accordance with any agreement concluded between the People's Republic of China and the country to which the applicant belongs, or according to the international treaty to which both countries are parties, or on the basis of the principle whereby each acknowledges the right of priority of the other. Anyone claiming the right of priority according to the preceding paragraph shall make a statement in writing when it or he files the application for the trademark registration, and submit, within three months, a copy of the application documents it or he first filed for the registration of the trademark; where the applicant fails to make the claim in writing or submit the copy of the application documents within the time limit, the claim shall be deemed not to have been made for the right of priority. Article 25 Where a trademark is first used for goods in an international exhibition on sponsored or recognized by me Chinese Government, the applicant for the registration of the trademark may enjoy the right of priority within six months from the date of exhibition of the goods. Anyone claiming the right of priority according to the preceding paragraph shall make a claim in writing when it or he files the application for the registration of the trademark, and submit, within three months, documents showing the title of the exhibition in which its or his goods was displayed, proof that the trademark was used for the goods exhibited, and the date of exhibition; where the claim is not made in writing, or the proof documents not submitted within the time limit, the claim shall be deemed not to have been made for the right of priority. Article 26 The matters reported and materials submitted in the application for trademark registration shall be true, accurate and complete. Chapter III Examination for and ApprovaI of Trademark Registration Article 27 Where a trademark the registration of which has been applied for is in conformity with the relevant provisions of this Law, the Trademark Office shall, after examination, preliminarily approve the trademark and publish it. Article 28 Where a trademark the registration of which has been applied for is not in conformity with the relevant provisions of this Law, or it is identical with or similar to the trademark of another person that has, in respect of the same or similar goods, been registered or, after examination, preliminarily approved, the Trademark Office shall refuse the application and shall not publish the said trademark. Article 29 Where two or more applicants apply for the registration of identical or similar trademarks for the same or similar goods, the preliminary aPproval, after examination, and the publication shall be made for the trademark which was first filed. Where applications are filed on the same day, the preliminary approval, after examination, and the publication shall be made for the trademark which was the earliest used, and the applications of the others shall be refused and their trademarks shall not be published. Article 30 Any person may, within three months from the date of the publication, file an opposition against the trademark that has, after examination, been preliminarily approved. If no opposition has been filed after the expiration of the time limit from the publication, the registration shall be approved, a certificate of trademark registration shall be issued and the trademark shall be published. Article 31 An application for the registration of a trademark shall not create any prejudice to the prior right of another person, nor unfair means be used to pre-emptively register the trademark of some reputation another person has used. Article 32 Where the application for registration of a trademark is refused and no publication of the trademark is made, the Trademark Office shall notify the applicant of the same in writing. Where the applicant is dissatisfied, he may, within fifteen days from receipt of the notice, file an application with the Trademark Review and Adjudication Board for a review. The Trademark Review and Adjudication Board shall make a decision and notify 'the applicant in writing. Any interested party who is not satisfied with the decision made by the Trademark Review and Adjudication Board may, within thirty days from receipt of the notice, institute legal proceedings in the People's Court. Article 33 Where an opposition is filed against the trademark that has, after examination, been preliminarily approved and published, the Trademark Office shall hear both the opponent and applicant state facts and grounds, and shall, after investigation and verification, make a decision. Where any party is dissatisfied, it or he may within fifteen days from receipt of the notification, apply for a reexamination, and the Trademark Review and Adjudication Board shall make a decision and notify both the opponent and applicant in writing. Any interested party who is not satisfied with the decision made by the Trademark Review and Adjudication Board within thirty days from the date of receipt of the notice, may institute legal proceedings in the People's Court. The People's Court shall notify the other party to the trademark reexamination proceeding to be a third party to the litigation. Article 34 Where the interested party does not, within the statutory time limit, apply for the reexamination of the adjudication by the Trademark Office or does not institute legal proceedings in respect of the adjudication by the Trademark Review and Adjudication Board, the adjudication takes effect. Where the opposition cannot be established upon ad judication, the registration shall be approved, a certificate of trademark registration shall be issued and the trademark shall be published; where the opposition is established upon adjudication, the registration shall not be approved. Where the opposition cannot be established upon ad judication, but the registration is approved, the time of the exclusive right the trademark registration applicant has obtained to use the trademark is counted from the date on which the three months expires from the publication of the preliminary examination. Article 35 Any application for trademark registration and trademark reexamination shall be examined in due course. Article 36 Where any trademark registration applicant or registrant finds any obvious errors in the trademark registration documents or application documents, it or he may apply for correction thereof The Trademark Office shall ex officio make the correction according to law and notify the interested party of the correction. The error correction mentioned in the preceding paragraph shall not relate to the substance of the trademark registration documents or application documents. Chapter IV Renewal, Assignment and Licensing of Registered Trademarks Article 37 The period of validity of a registered trademark shall be ten years, counted from the date of approval of the registration. Article 38 Where the registrant intends to continue to use the registered trademark beyond the expiration of the period of validity, an application for renewal of the registration shall be made within six months before the said expiration. Where no application therefore has been filed within the said period, a grace period of six months may be allowed. If no application has been filed at the expiration the grace period, the registered trademark shall be cancelled. The period of validity of each renewal of registration shaIl be ten years. Any renewa1 of registration shall be published after it as been approved. Article 39 Where a registered trademark is assigned, the assignor and assignee shall conclude a contract for the assignment, and jointly file an application with the trademark Office. The assignee shall guarantee the quality of the goods in respect of which the registered trademark is used. The assignment of a registered trademark shall be published after it has been approved, and the assignee enjoys the exclusive right to use the trademark from the date of publication. Article 40 Any trademark registrant may, by signing a trademark license contract, authorize other persons to use his registered trademark. The licensor shall supervise the quality of the goods in respect of which the licensee uses his registered trademark, and the licensee shall guarantee the quality of the goods in respect of which the registered Trademark is used. Where any party is authorized to use a registered trademark of another person, the name of the licensee and the origin of the goods must be indicated on the goods that bear the registered trademark. The trademark license contract shall be submitted to the Trademark Office for record. Chapter V Adjudication of Disputes Concerning Registered Trademarks Article 41 Where a registered trademark stands in violation of the provisions of Articles 10, 11 and 12 of this Law, or the registration of a trademark was acquired by fraud or any other unfair means, the Trademark Office shall cancel the registered trademark in question; and any other organization or individual may request the Trademark Review and Ad judication Board to make an adjudication to cancel such a registered trademark. Where a registered trademark stands in violation of the provisions of Articles l3, l5, l6 and 3l of this Law, any other trademark owner concerned or interested party may, within five years from the date of the registration of the trademark, file a request with the Trademark Review and Adjudication Board for adjudication to cancel the registered trademark. Where a well-known mark is registered in bad faith, the genuine owner thereof shall not be restricted by the five-year limitation. In addition to those cases as provided for in the preceding two paragraphs, any person disputing a registered trademark may, within five years from the date of approval of the trademark registration, apply to the Trademark Review and Adjudication Board for adjudication. The Trademark Review and Adjudication Board shall, after receipt of the application for adjudication, notify the interested parties and request them to respond with arguments within a specified period. Article 42 Where a trademark, before its being approved for registration, has been the object of opposition and decision, no application for adjudication may be filed based on the same facts and grounds. Article 43 After the Trademark Review and Adjudication Board has made an adjudication either to maintain or to cancel a registered trademark, it shall notify the interested parties of the same in writing. Any interested party who is dissatisfied with the adjudication made by the Trademark Review and Adjudication Board may, within thirty days from the date of receipt of the notice, institute legal proceedings in the People's Court. The People's Court shall notify the other party of the trademark adjudication proceeding to be a third party to the legal proceedings. Chapter Vl Administration of the Use of Trademarks Article 44 Where any person who uses a registered trademark has committed any of the following, the Trademark Office shall order him to rectify the situation within a specified period or even cancel the registered trademark: (1) where a registered trademark is altered unilaterally (that is, without the required registration); (2) where the name, address or other registered matters concerning the registrant of a registered trademark are changed unilaterally (that is, without the required application ); (3) where the registered trademark is assigned unilaterally (that is, without the required approval); or (4) where the use of the registered trademark has ceased for three consecutive years. Article 45 Where a registered trademark is used in respect of the goods that have been roughly or poorly manufactured, or whose superior quality has been replaced by inferior quality, so that consumers are deceived, the administrative authorities for industry and commerce at different levels shall, according to the circumstances, order rectification of the situation within a specified period, and may, in addition, circulate a notice of criticism or impose a fine, and the Trademark Office may even cancel the registered trademark. Article 46 Where a registered trademark has been cancelled or has not been renewed at the expiration, the Trademark Office shall, during one year from the date of the cancellation or removal thereof, approve no application for the registration of a trademark that is identical with or similar to the said trademark. Article 47 Where any person violates the provisions of Article 6 of this Law, the local administrative authority for industry and commerce shall order him to file an application for the registration within a specified period, and may, in addition, impose a fine. Article 48 Where any person who uses an unregistered trademark has committed any of the following, the local administrative authority for industry and commerce shall stop the use of the trademark, order him to rectify the situation within a specified period, and may, in addition, circulate a notice of criticism or impose a fine: (1) where the trademark is falsely represented as registered; (2) where any provision of Article 10 of this Law is violated; or (3) where the manufacture is of rough or poor quality, or where superior quality is replaced by inferior quality, so that consumers are deceived. Article 49 Any party dissatisfied with the decision of the Trademark Office to cancel a registered trademark may, within fifteen days from receipt of the corresponding notice, apply for a review. The Trademark Review and Adjudication Board shall make a decision and notify the applicant in writing. Any interested party dissatisfied with the decision by the Trademark Review and Adjudication Board may, within thirty days from the date of receipt of the notice, institute legal proceedings in the People's Court. Article 50 Any party dissatisfied with the decision of the administrative authority for industry and commerce to impose a fine under the provisions of Article 45, Article 47 or Article 48 may, within fifteen days from receipt of the corresponding notice, institute legal proceedings with the People's Court. If there have been instituted no legal proceedings or made no performance of the decision at the expiration of the said period, the administrative authority for industry and commerce may request the People's Court for compulsory execution thereof. Chapter VII Protection of the Exclusive Rights to Use Registered Trademarks Article 51 The exclusive right to use a registered trademark is limited to the trademark which has been approved for registration and to the goods in respect of which the use of the trademark has been approved. Article 52 Any of the following acts shall be an infringement of the exclusive right to use a registered trademark: (1) to use a trademark that is identical with or similar to a registered trademark in respect of the identical or similar goods without the authorization from the trademark registrant; (2) to sell goods that he knows bear a counterfeited registered trademark; (3) to counterfeit, or to make, without authorization, representations of a registered trademark of another person, or to sell such representations of a registered trademark as were counterfeited, or made without authorization; (4) to replace, without the consent of the trademark registrant, its or his registered trademark and market again the goods bearing the replaced trademark; or (5) to cause, in other respects, prejudice to the exclusive right of another person to use a registered trademark. Article 53 Where any party has committed any of such acts to infringe the exclusive right to use a registered trademark as provided for in Article 52 of this Law and has caused a dispute, the interested parties shall resolve the dispute through consultation; where they are reluctant to resolve the matter through consultation or the consultation fails, the trademark registrant or interested party may institute legal proceedings in the People's Court or request the administrative authority for industry and commerce for actions. Where it is established that the infringing act is constituted in its handling the matter, the administrative authority for industry and commerce handling the matter shall order the infringer to immediately stop the infringing act, confiscate and destroy the infringing goods and tools specially used for the manufacture of the infringing goods and for counterfeiting the representations of the registered trademark, and impose a fine. Where any interested party is dissatisfied with decision on handling the matter, it or he may, within fifteen days from the date of receipt of the notice, institute legal proceedings in the People's Court according to the Administrative Procedure Law of the People's Republic of China. If there have been instituted no legal proceedings or made on performance of the decision at the expiration of the said period, the administrative authority for industry and commerce shall request the People's Court for compulsory execution thereof. The administrative authority for industry and commerce handling the matter may, upon the request of the interested party, medicate on the amount of compensation for the infringement of the exclusive right to use the trademark; where the medication fails, the interested party may institute legal proceedings in the People's Court according to the Civil Procedure Law of the People's Republic of China. Article 54 The administrative authority for industry and commerce has the power to investigate and handle any act of infringement of the exclusive right to use a registered trademark according to law; where the case is so serious as to constitute a crime, it shall be transferred to the judicial authority for handling. Article 55 When investigating and handling an act suspected of infringement of a registered trademark, the administrative authority for industry and commerce at or above the county level may, according to the obtained evidence of the suspected violation of law or informed offence, exercise the following functions and authorities: (1 ) to inquire of the interested parties involved, and to investigate the relevant events of the infringement of the exclusive right to use the trademark; (2) to read and make copy of the contract, receipts, account books and other relevant materials of the interested parties relating to the infringement; (3) to inspect the site where the interested party committed the alleged infringement of the exclusive right to use the trademark; and (4) to inspect any articles relevant to the infringement; any articles that prove to have been used for the infringement of another person's exclusive right to use the trademark may be sealed up or seized. When the administrative authority for industry and commerce exercises the preceding functions and authorities, the interested party shall cooperate and help, and shall not refuse to do so or stand in the way. Article 56 The amount of damages shall be the profit that the infringer has earned because of the infringement in the period of the infringement or the injury that the infringee has suffered from the infringement in the period of the infringement, including the appropriate expenses of the infringee for stopping the infringement. Where it is difficult to determine the profit that the infringer has earned because of the infringement in the period of the infringement or the injury that the infringee has suffered from the infringement in the period of the infringement, the People's Court shall impose an amount of damages of no more than RMB 500, 000 yuan according to the circumstances of the infringement. Anyone who sells a goods that it or he does not know has infringed the exclusive right to use a registered trademark, and is able to prove that it or he has obtained the goods legitimately and indicates the supplier thereof shall not bear the liability for damages. Article 57 Where a trademark registrant or interested party who has evidence to show that another person is committing or will commit an infringement of the right to use its or his registered trademark, and that failure to promptly stop the infringement will cause irreparable damages to its or his legitimate rights and interests, it or he may file an application with the People's Court to order cessation of the relevant act and to take measures for property preservation before instituting legal proceedings in the People's Court. The People's Court handling the application under the preceding paragraph shall apply the provisions of Articles 93 to 96 and 99 of the Civil Procedure Law of the People's Republic of China. Article 58 In order to stop an infringing act, any trademark registrant or interested party may file an application with the People's Court for preservation of the evidence before instituting legal proceedings in the People's Court where the evidence will possibly be destroyed or lost or difficult to be obtained again in the future. The People's Court must make adjudication within forty-eight hours after receipt of the application; where it is decided to take the preservative measures, the measures shall be executed immediately. The People's Court may order the applicant to place guaranty; where the applicant fails to place the guaranty, the application shall be rejected. Where the applicant institutes no legal proceedings within fifteen days after the People's Court takes the preservative measures, the People's Court shall release the measures taken , for the preservation. Article 59 Where any party uses, without the authorization from the trademark registrant, a trademark identical with a registered trademark, and the case is so serious as to constitute a crime, he shall be prosecuted, according to law, for his criminal liabilities in addition to his compensation for the damages suffered by the infringee. Where any party counterfeits, or makes, without authorization, representations of a registered trademark of another person, or sells such representations of a registered trademark as were counterfeited, or made without authorization, and the case is so serious as to constitute a crime, he shall be prosecuted, according to law, for his criminal liabilities in addition to his compensation for the damages suffered by the infringee. Where any party sells goods that he knows bear a counterfeited registered trademark, and the case is so serious as to constitute a crime, he shall be prosecuted, according to law, for his criminal liabilities in addition to his compensation for the damages suffered by the infringee. Article 60 The State functionaries for the registration, administration and reexamination of trademarks must handle cases according to law, be incorruptible and disciplined, devoted to their duties and courteous and honest in their provision of service. The State functionaries of the Trademark Office and the Trademark Review and Adjudication Board and those working for the registration, administration and reexamination of trademarks shall not practice as trademark agent and engage in any activity to manufacture and market goods. Article 61 The administrative authority for industry and commerce shall establish and amplify its internal supervision system to supervise and inspect the State functionaries for the registration, administration and reexamination of trademarks in their implementation of the laws and administrative regulations and in their observation of the discipline. Article 62 Where any State functionary for the registration, administration and reexamination of trademarks neglects his duty, abuses his power, engages in malpractice for personal gain, handles the registration, administration and reexamination of trademarks in violation of law, accepts money or material wealth from any interested party or seeks illicit interest, which constitutes a crime, he or she shall be prosecuted for his or her criminal liabi1ity. If the case is not serious enough to constitute a crime, he or she shall be given disciplinary sanction according to law. Chapter VIII Supplementary Provisions Article 63 Any application for a trademark registration and for other matters concerning a trademark shall be subject to payment of the fees as prescribed. The schedule of fees shall be prescribed separately. ArticIe 64 This Law shall enter into force on March l, l983. The "Regulations Governing Trademarks" promulgated by the State Council on April l0, l963 shall be abrogated on the same date, and any other provisions concerning trademarks contrary to this Law shall cease to be effective at the same time. Trademarks registered before this Law enters into force shall continue to be valid.

Patent

Implementing Regulations of the Patent Law of the People's Republic of China
Implementing Regulations of the Patent Law of the People's Republic of China Promulgator: the State Council Promulgation Date: 2001-06-15 Status: Valid Effective Date: 2001-07-01 (Revision approved by the "Order of the Commissioner of the State Intellectual Property Office(No. 26)") Chapter I General Provisions Rule 1 These Implementing Regulations are drawn up in accordance with the Patent Law of the Peopl's Republic of China (hereinafter referred to as the Patent Law). Rule 2 "Invention" in the Patent Law means any new technical solution relating to a product, a process or improvement thereof. "Utility model" in the Patent Law means any new technical solution relating to the shape, the structure, or their combination, of a product, which is fit for practical use. "Design" in the Patent Law means any new design of the shape, pattern, or their combination and the combination of color and shape or design, of a product, which creates an aesthetic feeling and is fit for industrial application. Rule 3 Any proceedings provided for by the Patent Law and these Implementing Regulations shall be conducted in a written form or in any other form prescribed by the Patent Administrative Organ under the State Council. Rule 4 Any document submitted under the Patent Law and these Implementing Regulations shall be in Chinese. The standard scientific and technical terms shall be used if there is a prescribed one set forth by the State. Where no generally accepted translation in Chinese can be found for a foreign name or scientific or technical term, the one in the original language shall be also indicated. Where any certificate and certified document submitted in accordance with the Patent Law and these Implementing Regulations are in foreign language, and where the Patent Administrative Organ under the State Council finds it necessary, it may request for a Chinese translation of the certificate and the certified document to be submitted within a specified time limit; where the translation is not submitted within the specified time limit, the certificate and certified document shall be deemed not to have been submitted. Rule 5 For any document sent by mail to the Patent Administrative Organ under the State Council, the date of mailing indicated by the postmark on the envelope shall be presumed to be the date of filing. If the date of mailing indicated by the postmark on the envelope is illegible, the date on which the Patent Administrative Organ under the State Council receives the document shall be the date of filing, except where the date of mailing is proved by the addresser. Any document of the Patent Administrative Organ under the State Council may be served by mail, by personal delivery or by any other means. Where any party concerned appoints a patent agency, the document shall be sent to the patent agency; where no patent agency is appointed, the document shall be sent to the person indicated in the request. For any document sent by mail by the Patent Administrative Organ under the State Council, the 16th day from the date of mailing shall be presumed to be the date on which the addressee receives the document. For any document which shall be delivered personally in accordance with the prescription of the Patent Administrative Organ under the State Council, the date of delivery is the date on which the addressee receives the document. Where the address of a document is not clear and cannot be sent by mail, the document may be served by making an announcement in the Patent Gazette. At the expiration of one month from the date of the announcement, the document shall be presumed to have been served. Rule 6 The first day of any time limit prescribed in the Patent Law and these Implementing Regulations shall not be counted. Where a time limit is counted by year or by month, it shall expire on the corresponding day of the last month; if there is no corresponding day in that month, the time limit shall expire on the last day of that month. If a time limit expires on an official holiday, the time limit shall expire on the first working day following that official holiday. Rule 7 Where a time limit prescribed in the Patent Law or these Implementing Regulations or specified by the Patent Administrative Organ under the State Council is not observed because of force majeure, resulting in the loss of any right on the part of the party concerned, he or it shall, within two months from the date on which the impediment is removed, at the latest within two years immediately following the expiration of that time limit, state the reasons, together with relevant supporting documents and request the Patent Administrative Organ under the State Council to restore his or its rights. Where a time limit prescribed in the Patent Law or these Implementing Regulations or specified by the Patent Administrative Organ under the State Council is not observed because of any justified reason, resulting in the loss of any right on the part of the party concerned, he or it shall, within two months from the date of receipt of a notification from the Patent Administrative Organ under the State Council, state the reasons and request the Patent Administrative Organ under the State Council to restore his or its rights. Where the party concerned makes a request for an extension of a time limit specified by the Patent Administrative Organ under the State Council, he or it shall, before the time limit expires, state the reasons to the Patent Administrative Organ under the State Council and complete the relevant procedures. The provisions of paragraphs one and two of this Rule shall not be applicable to the time limits referred to in Articles 24, 29, 42, and 62 of the Patent Law. Rule 8 Where an application for patent for invention relates to the security of the State concerning national defence and is required to be kept secret, the application shall be filed with the patent organization of the national defence system. Where any application for patent for invention relating to the secrets of the State concerning national defense and requiring to be kept classified is received by the Patent Administrative Organ under the State Council, the Patent Administrative Organ under the State Council shall transfer the application to the said patent organisation of the national defence system. The Patent Administrative Organ under the State Council shall make a decision on the basis of the observations of the examination of the application presented by the said patent organisation of the national defence system. Subject to the preceding paragraph, the Patent Administrative Organ under the State Council, after receipt of an application for patent for invention which is required to be examined for the purpose of security, shall send it to the competent department concerned of the State Council for examination. The said department shall, within four months from receipt of the application, send a report on the results of the examination to the Patent Administrative Organ under the State Council. Where the invention for which a patent is applied for is required to be kept secret, the Patent Administrative Organ under the State Council shall handle it as an application for secret patent and notify the applicant accordingly. Rule 9 The invention-creations contrary to the laws of the State referred to in Article 5 of the Patent Law do not include invention-creations the exploitation of which is prohibited under the laws of the State. Rule 10 The date of filing referred to in the Patent Law, except that mentioned in Articles 28 and 42, means the priority date where a right of priority is claimed. The date of filing referred to in these Implementing Regulations means the date of filing provided for in Article 28 of the Patent Law, unless otherwise provided for. Rule 11 "Service invention-creation made by a person in execution of the tasks of the entity to which he belongs " mentioned in Article 6 of the Patent Law refers to any invention-creation made: (1) in the course of performing his own duty; (2) in execution of any task, other than his own duty, which was entrusted to him by the entity to which he belongs; (3) within one year from his resignation, retirement or change of work, where the invention-creation relates to his own duty or the other task entrusted to him by the entity to which he previously belonged. The entity to which one belongs mentioned in Article 6 of the Patent Law includes the entity one temporarily works for; "material and/or technical means of the entity" mentioned in Article 6 of the Patent Law refers to entity's money, equipment, spare parts, raw materials, or technical data which are not to be disclosed to the public. Rule 12 "Inventor" or "creator" mentioned in the Patent Law refers to any person who has made creative contributions to the substantive features of the invention-creation. Any person who, during the course of accomplishing the invention-creation, is responsible only for organization work, or who offers facilities for making use of material and/or technical means, or who takes part in other auxiliary functions, shall not be considered as inventor or creator. Rule 13 For any identical invention-creation, only one patent right shall be granted. Two or more applicants who file, on the same day, applications for patent for the identical invention-creation, according to Article 9 of the Patent Law, shall, after receipt of a notification from the Patent Administrative Organ under the State Council, hold consultation among themselves to decide on the person or persons who shall be entitled to file the application. Rule 14 Where a Chinese entity or individual assigns the right to apply for patent or the patent right to a foreigner, the assignment shall be approved by the competent Organ for Foreign Trade and Economic Cooperation under the State Council in conjunction with the Administrative Organ for Science and Technology under the State Council. Rule 15 Where a patent right is transferred for reasons other than the assignment of a patent right as provided for in Article 10 of the Patent Law, the interested party shall perform the formalities for change of the name of the patentee with the Patent Administrative Organ under the State Council on the basis of relevant certified document or legal instrument. Any license contract for exploitation of the patent which has been concluded by the patentee with an entity or individual shall, within three months from the date of entry into force of the contract, be submitted to the Patent Administrative Organ under the State Council for recordal. Chapter II Application for Patent Rule 16 Anyone who applies for a patent in written form shall submit application documents in two copies to the Patent Administrative Organ under the State Council. Any application filed in any other form prescribed by the Patent Administrative Organ under the State Council shall conform to the requirement. Any applicant who appoints a patent agency for filing an application for a patent with, or for dealing with other patent matters before, the Patent Administrative Organ under the State Council, shall submit a power of attorney indicating the scope of the power entrusted. Where there are two or more applicants of one application and where they have not appointed any patent agency, the first applicant indicated in the request shall be the representative unless otherwise stated in the request. Rule 17 Other related matters mentioned in Article 26, paragraph two, of the Patent Law refer to: (1) the nationality of the applicant; (2) where the applicant is an enterprise or other organization, the name of the country in which the applicant has the principal business office; (3) where the applicant has appointed a patent agency, the relevant matters shall be indicated; where the applicant has not appointed a patent agency, the name, address, postal code and telephone number of his or its person to be contacted; (4) where the priority of an earlier application is claimed, the relevant matters which should be indicated; (5) the signature or seal of the applicant or the patent agency; (6) a list of the documents constituting the application; (7) a list of the documents appending the application; (8) any other related matter which needs to be indicated. Rule 18 The description of an application for a patent for invention or utility model shall indicate the title of the invention or utility model, and the title shall be consistent with the one appearing in the request. The description shall contain: (1) technical field: indicating the technical field the technical solution falls into for which protection is claimed; (2) background art: indicating the background art which facilitates the understanding, searching and examination of the invention or utility model, and citing, if available, the documents reflecting such art; (3) contents of invention: stating the technical problem to be solved by the invention or utility model and the technical solution adopted for solving the technical problem, and indicating the advantageous effects of the invention or utility model with reference to the prior art; (4) Drawings: briefly explaining each of the drawings where the description is accompanied therewith; (5) Specific mode for carrying out the invention or utility model: indicating in detail the optimum mode contemplated by the applicant for carrying out the invention or utility model; this shall be done in terms of examples, where appropriate, and with reference to the drawings, if any. The manner and order mentioned in the preceding paragraph shall be observed by the applicant of a patent for invention or a patent for utility model and a subtitle is given at the beginning of each portion of the description, unless, because of the nature of the invention or utility model, a different manner or order would afford an accurate understanding and a more economical presentation. The description of the invention or utility model shall be written in standard terms and straightforward sentences, and shall not contain such references to the claims as: "as described in part - of the claim", nor shall it contain commercial advertising. Where an application for patent for invention covers one or more sequences of nucleotides or of amino acids, the description thereof shall contain a table of sequence complying with the prescription of the Patent Administrative Organ under the State Council. The applicant shall submit the table of sequence as a separate portion of the description, together with a computer-readable copy in the form prescribed by the Patent Administrative Organ under the State Council. Rule 19 The same sheet of drawings may contain several figures of the invention or utility model, and the drawings shall be numbered and arranged in numerical order consecutively as "Figure 1, Figure 2, ... ... ". The scale and the distinctness of the drawings shall be such that a reproduction with a linear reduction in size to two-thirds would still enable all details to be clearly distinguishable. Drawing reference signs not appearing in the text of the description of the invention or utility model shall not appear in the drawings. Drawing reference signs not appearing in the drawings shall not appear in the text of the description. Drawing reference signs for the same composite part used in an application document shall be consistent throughout. The drawings shall not contain any other explanatory notes, except words which are indispensable. Rule 20 The claims shall define clearly and concisely the matter for which protection is sought in terms of the technical features of the invention or utility model. If there are several claims, they shall be numbered consecutively in Arabic numerals. The technical terminology used in the claims shall be consistent with that used in the description. The claims may contain chemical or mathematical formulae but no drawings. They shall not, except where absolutely necessary, contain such references to the description or drawings as: "as described in part - of the description", or "as illustrated in figure - of the drawings". The technical features mentioned in the claims may, in order to facilitate understanding of the claim, make reference to the corresponding reference signs in the drawings of the description. Such reference signs shall follow the corresponding technical features and be placed between parentheses. They shall not be construed as limiting the claims. Rule 21 The claims shall have an independent claim, and may also contain dependent claims. An independent claim shall outline the technical solution of an invention or utility model and describe the indispensable technical features necessary for solving the technical problems. A dependent claim shall further define the claim which it refers to by additional features which it is desired to protect. Rule 22 An independent claim of an invention or utility model shall contain a preamble portion and a characterizing portion, and be presented in the following form: (1) a preamble portion, indicating the title of the subject matter of the technical solution of the invention or utility model for which protection is sought, and the necessary technical features common to the invention or utility model and the closest prior art; (2) a characterizing portion, stating, in such words as "characterized in that ... ... " or in similar expressions, the technical features of the invention or utility model, which distinguish it from the closest prior art. These features, in combination with the features stated in the preamble portion, served to define the scope of protection of the invention or utility model. Independent claims may be presented in any other form, where it is not appropriate, according to the nature of the invention or utility model, to present them in the form prescribed in the preceding paragraph. Each invention or utility model shall have only one independent claim, which shall precede all the dependent claims relating to the same invention or utility model. Rule 23 A dependent claim of an invention or utility model shall contain a reference portion and a characterizing portion, and be presented in the following form: (1) a reference portion, indicating the serial number(s) of the claim(s) referred to, and the title of the subject matter; (2) a characterizing portion, stating the additional technical features of the invention or utility model. A dependent claim shall refer only to the preceding claim or claims. A multiple dependent claim referring to two or more preceding claims shall only refer to any one of the preceding claims, and shall not be taken as the basis of any multiple dependent claim. Rule 24 The abstract of the description shall outline the contents disclosed in the application for patent for invention or utility model, namely indicating the title and the technical field of the invention or utility model, and clearly states the technical problems to be solved, the essential technical features and the major use or uses of the technical solution solving the problems. The abstract may contain the chemical formula which best characterizes the invention. In an application for a patent which contains drawings, the applicant shall indicate and provide a drawing which best characterizes the invention or utility model. The scale and the distinctness of the drawings shall be such that a reproduction with a linear reduction in size to 4cm�� 6cm would still enable all details to be clearly distinguished. The whole text of the abstract shall contain not more than 300 Chinese characters. There shall be no commercial advertising in the abstract. Rule 25 Where an application for a patent for invention concerns a new biological material which is not accessible to the public, and the description of which is not sufficient enough to enable skilled artisans of the art to carry out the invention, the applicant shall, in addition to fulfilling the requirements set out in the Patent Law and these Implementing Regulations, complete the following formalities. (1) deposit a sample of the biological material with a depository institution designated by the Patent Administrative Organ under the State Council before the date of filing, or, at the latest, on the date of filing (or the priority date, where priority is claimed), and submit, at the time of filing, or, at the latest, within four months from the filing date, a receipt of deposit and the viability proof from the depository institution; where they are not submitted within the specified time limit, the sample shall be deemed not to have been deposited; (2) give in the application document relevant information of the characteristics of the biological material; (3) indicate, where the application relates to the deposit of a sample of the biological material in the request and the description, the scientific name of classification (with its Latin name) of the biological material and the name and address of the depository institution of the biological material, the date and accession number of the deposit; where, at the time of filing, they are not indicated, they shall be supplied within four months from the date of filing; where, after the expiration of the prescribed time limit they are not supplied, the sample of the biological material shall be deemed not to have been deposited. Rule 26 Where an applicant for patent for invention deposits a sample of biological material in accordance with Rule 25 of these Implementing Regulations, after the publication of the application for a patent for invention relating to a biological material, any entity which, or individual who, needs to make use of the biological material covered in the application for the purpose of experiment shall make a request to the Patent Administrative Organ under the State Council containing the following: (1) the name and address of the entity or individual making the request; (2) an undertaking not to make the biological material available to any other person; (3) an undertaking to use the biological material for experimental purpose only before the grant of the patent right. Rule 27 The size of drawings or photographs of a design submitted in accordance with the provisions of Article 27 of the Patent Law shall not be smaller than 3cm * 8cm, nor larger than 15cm * 22cm. Where an application for a patent for design seeking concurrent protection of colors is filed, a drawing or photograph in color, and a drawing or photograph in white and black, shall be submitted in two copies. The applicant shall submit, in respect of the subject matter of the product incorporating the design which is in need of protection, the relevant views and stereoscopic drawings or photographs, so as to clearly show the subject matter for which protection is sought. Rule 28 Where an application for a patent for design is filed, a brief explanation of the design shall, when necessary, be indicated. The brief explanation of the design shall include the main design elements of the product incorporating the design, the colors for which protection is sought and the omission of the view thereof. The brief explanation shall not contain any commercial advertising and shall not be used to indicate the function and the uses of the product. Rule 29 Where the Patent Administrative Organ under the State Council finds it necessary, it may require the applicant for a patent for design to submit a sample or model of the product incorporating the design. The volume of the sample or model submitted shall not exceed 30cm * 30cm * 30cm, and its weight shall not surpass 15 kilos. Articles easy to get rotten or broken or articles that are dangerous may not be submitted as sample or model. Rule 30 The existing technology mentioned in Article 22, paragraph three, of the Patent Law means any technology which has been publicly disclosed in publications in the country or abroad, or has been publicly used or made known to the public by any other means in the country, before the date of filing (or the priority date where priority is claimed), that is, prior art. Rule 31 The academic or technological meeting mentioned in item (2) of Article 24 of the Patent Law means any academic or technological meeting organized by a competent department concerned of the State Council or by a national academic or technological association. Where any invention-creation for which an application for a patent is filed falls under the provisions of item (1) or item (2) of Article 24 of the Patent Law, the applicant shall, when filing the application, make a declaration and, within a time limit of two months from the date of filing, submit a certificate issued by the entity which organises the international exhibition or academic or technological meeting, stating that the invention-creation was in fact exhibited or made public there and also the date of its exhibition or making public. Where any invention-creation for which an application for a patent is filed falls under the provisions of item (3) of Article 24 of the Patent Law, the Patent Administrative Organ under the State Council may, when necessary, require the applicant to submit the relevant proof within the prescribed time limit. Where the applicant fails to make the declaration or submit the certified document pursuant to paragraph two of this Rule, or fails to submit the proof within the prescribed time limit according to paragraph three of this Rule, the provision of Article 24 of the Patent Law shall not be applicable to his or its application. Rule 32 Where the applicant is to comply with the requirements for claiming the right of priority in accordance with Article 30 of the Patent Law, he or it shall, in his or its written declaration, indicate the date of filing and the filing number of the application which was first filed (hereinafter referred to as the earlier application) and the country in which that application was filed. If the written declaration does not contain the date of filing of the earlier application and the name of that country, the declaration shall be deemed not to have been made. Where the foreign priority is claimed, the copy of the earlier application document submitted by the applicant shall be certified by the competent authority of the foreign country; where the name or the title of the applicant of the earlier application is not consistent with that of the applicant of the subsequent application in the certified material, a proof of the assignment of the right of priority shall be submitted; where the domestic priority is claimed, the copy of the earlier application document shall be prepared by the Patent Administrative Organ under the State Council. Rule 33 Any applicant may claim one or more priorities for an application for a patent; where the priorities of several earlier applications are claimed, the priority period for the application shall be counted from the earliest priority date. Where any applicant claims the right of domestic priority, if the earlier application is one for a patent for invention, he or it may file an application for a patent for invention or utility model for the same subject matter; where the earlier application is one for a patent for utility model, he or it may file an application for a patent for utility model or invention for the same subject matter. But when the later application is filed, if the subject matter of the earlier application falls under any of the following, it may not be the basis of domestic priority. (1) where it has claimed foreign or domestic priority; (2) where it has been granted a patent right; (3) where it is a divisional application filed as prescribed. Where the domestic priority is claimed, the earlier application shall be deemed to be withdrawn from the date on which the later application is filed. Rule 34 Where an application for a patent is filed or the right of foreign priority is claimed by any applicant having no habitual residence or business establishment in China, the Patent Administrative Organ under the State Council may, when finding it necessary, require the applicant to submit the following documents: (1) a certificate concerning the nationality of the applicant; (2) a certificate concerning the seat of the business establishment or the headquarters, if the applicant is an enterprise or any other organization; (3) a testimonial showing that the country, to which the applicant belongs, recognizes that Chinese entities and individuals are, under the same conditions applied to its nationals, entitled to patent right, right of priority and other related rights in that country. Rule 35 Two or more inventions or utility models belonging to a single general inventive concept which may be filed as one application in accordance with the provision of Article 31, paragraph one, of the Patent Law shall be technically inter-related and contain one or more identical or corresponding special technical features. The expression "special technical features" shall mean those technical features that define a contribution which each of those inventions, considered as a whole, makes over the prior art. Rule 36 The expression "the same class" mentioned in Article 31, paragraph two of the Patent Law means that the products incorporating the designs belong to the same subclass in the classification of products for designs. The expression "be sold or used in sets" means that the products incorporating the designs have the same designing concept and are customarily sold or used at the same time. Where two or more designs are filed as one application in accordance with the provisions of Article 31, paragraph two, of the Patent Law, the designs shall be numbered consecutively and the numbers shall be placed before the titles of the view of the product incorporating the design. Rule 37 When withdrawing an application for a patent, the applicant shall submit to the Patent Administrative Organ under the State Council a declaration, indicating the title of the invention-creation, the filing number and the date of filing. Where a declaration to withdraw an application for a patent is submitted after the printing preparation has been made by the Patent Administrative Organ under the State Council for publication of the application documents, the application shall be announced as scheduled; however, the declaration to withdraw an application for a patent shall be published on the Patent Gazette published later on. Chapter III Examination and Approval of Application for Patent Rule 38 In any of the following situations, any person who makes examination or hears a case in the procedures of preliminary examination, examination as to substance, reexamination, and invalidation shall, on his own initiative or upon the request of the parties concerned or any other interested person, be excluded from exercising his function: (1) where he is a close relative of the party concerned or his agent; (2) where he has an interest in the application for patent or the patent right; (3) where he has such other kinds of relations with the party concerned or his agent that might influence impartial examination and hearing. (4) where a member of the Patent Reexamination Board has taken part in the examination of the application. Rule 39 Upon the receipt of an application for a patent for invention or utility model consisting of a request, a description (a drawing being indispensable for utility model) and one or more claims, or an application for a patent for design consisting of a request and one or more drawings or photographs showing the design, the Patent Administrative Organ under the State Council shall accord the date of filing and a filing number and notify the applicant accordingly. Rule 40 In any of the following situations, the Patent Administrative Organ under the State Council shall declare the application unacceptable and notify the applicant accordingly: (1) where the application for a patent for invention or utility model does not contain a request, a description (the description of utility model does not contain drawings) or claims, or the application for a patent for design does not contain a request, drawings or photographs; (2) where the application is not written in Chinese; (3) where the application is not in conformity with the provisions of Rule 120, paragraph one, of these Implementing Regulations; (4) where the request does not contain the name and address of the applicant; (5) where the application is obviously not in conformity with the provisions of Article 18, or Article 19, paragraph one, of the Patent Law; (6) where the kind of protection (patent for invention, utility model or design )of the application for a patent is not clear and definite or difficult to be discerned. Rule 41 Where the description mentions that it contains "explanatory notes to the drawings" but the drawings or some of them are missing, the applicant shall, within the time limit specified by the Patent Administrative Organ under the State Council, either furnish the drawings or make a declaration for the deletion of the "explanatory notes to the drawings". If the drawings are submitted later, the date of their delivering at, or mailing to, the Patent Administrative Organ under the State Council shall be the date of filing of the application; if the mention of "explanatory notes to the drawings" is to be deleted, the initial date of filing shall be the date of filing of the application. Rule 42 Where an application for a patent contains two or more inventions, utility models or designs, the applicant may, before the expiration of the time limit specified in Rule 54, paragraph 1, of these Implementing Regulations, submit to the Patent Administrative Organ under the State Council a divisional application; however, where the application for a patent has been rejected, withdrawn or deemed withdrawn, the divisional application shall not be filed. If the Patent Administrative Organ under the State Council finds that an application for a patent is not in conformity with the provisions of Article 31 of the Patent Law and Rule 35 or Rule 36 of these Implementing Regulations, it shall invite the applicant to amend the application within the specified time limit; if the applicant does not make any response within the time limit, the application shall be deemed to have been withdrawn. The divisional application may not change the kind of protection of the initial application. Rule 43 A divisional application filed in accordance with Rule 42 of these Implementing Regulations may enjoy the initial date of filing and, if priority is validly claimed, the priority date of the initial application, provided that the divisional application does not go beyond the scope of disclosure contained in the initial applications The divisional application shall be subject to the revelant procedures in accordance with the provisions of the Patent Law and these Implementing Regulations. The filing number and the date of filing of the initial application shall be indicated in the request of a divisional application. When submitting the divisional application, the applicant shall submit a copy of the initial application document; if priority is claimed for the initial application, the applicant shall submit a copy of the priority document of the initial application as well. Rule 44 "Preliminary examination" mentioned in Articles 34 and 40 of the Patent Law means examining an application for a patent to see whether or not it contains the documents as provided for in Articles 26 or 27 of the Patent Law and other necessary documents, and whether or not those documents are in the prescribed form; such examination shall also include the following: (1) whether or not an application for a patent for invention obviously falls under Articles 5 or 25 of the Patent Law, or is obviously not in conformity with the provisions of Article 18 or Article 19, paragraph one, of the Patent Law or is obviously not in conformity with the provisions of Article 31, paragraph one, or Article 33 of the Patent Law, or Rule 2, paragraph one, Rule 18 and Rule 20 of these Implementing Regulations; (2) whether or not an application for a patent for utility model obviously falls under Articles 5 or 25 of the Patent Law, or is obviously not in conformity with the provisions of Article 18 or Article 19, paragraph one, of the Patent Law or is obviously not in conformity with the provisions of Article 26, paragraphs 3 and 4, Article 31, paragraph one, or Article 33 of the Patent Law, or Rule 2, paragraph two, or Rule 13, paragraph 1, or Rules 18 to 23, or Rule 43, paragraph one of these Implementing Regulations, or cannot obtain a patent right according to the provisions of Article 9 of the Patent Law; (3) whether or not an application for a patent for design obviously falls under Article 5 of the Patent Law, or is obviously not in conformity with the provisions of Article 18 or Article 19, paragraph one, of the Patent Law, or is obviously not in conformity with the provisions of Article 31, paragraph two, or Article 33 of the Patent Law, or Rule 2, paragraph three, or Rule 13, paragraph one, or Rule 43, paragraph one, of these Implementing Regulations, or cannot obtain a patent right according to the provisions of Article 9 of the Patent Law. The Patent Administrative Organ under the State Council shall communicate its observations after examination of the application to the applicant and invite him or it to submit his or its observations or to correct his or its application within the specified time limit. If the applicant makes no response within the time limit, the application shall be deemed to have been withdrawn. Where, after the applicant has made the observations or the corrections, the Patent Administrative Organ under the State Council still finds that the application is not in conformity with the provisions of the Articles and the Rules referred in the relevant preceding sub-paragraphs, the application shall be rejected. Rule 45 In any of the following situations, any other document relating to a patent application, not including the patent application document which is submitted to the Patent Administrative Organ under the State Council, shall be deemed not to have been submitted: (1) where the document is not presented in the prescribed form or the indications therein are not in conformity with the prescriptions; or (2) where no supporting document is submitted as prescribed. The Patent Administrative Organ under the State Council shall notify the applicant of its observation that the document is deemed not to have been submitted. Rule 46 Where the applicant requests an earlier publication of its or his application for a patent for invention, a declaration shall be made to the Patent Administrative Organ under the State Council. The Patent Administrative Organ under the State Council shall, after preliminary examination of the application and, unless it is to be rejected, publish it immediately. Rule 47 The applicant shall, when indicating in accordance with Article 27 of the Patent Law the product incorporating the design and the class to which that product belongs, refer to the classification of products for designs published by the Patent Administrative Organ under the State Council. Where no indication, or an incorrect indication, of the class to which the product incorporating the design belongs is made, the Patent Administrative Organ under the State Council shall supply the indication or make the correction. Rule 48 Any person may, from the date of publication of an application for a patent for invention till the date of announcing the grant of the patent right, submit to the Patent Administrative Organ under the State Council observations, with the reasons therefor, on the application which is not in conformity with the provisions of the Patent Law. Rule 49 Where the applicant for a patent for invention cannot furnish, for justified reasons, the documents concerning any search or the results of any examination under Article 36 of the Patent Law, it or he shall make a statement to that effect to the Patent Administrative Organ under the State Council and submit them when the said documents are available. Rule 50 The Patent Administrative Organ under the State Council shall, when proceeding on its own initiative to examine , an application for a patent for invention in, accordance with the provisions of Article 35, paragraph two, of the Patent Law, notify the applicant accordingly. Rule 51 When requesting for examination as to substance or within three months from the date of receipt of the notification from the Patent Administrative Organ under the State Council that the application for a patent for invention has entered the stage of examination as to substance, the applicant may amend the application for a patent for invention on its or his own initiative. Within two months from the date of filing, the applicant for a patent for utility model or design may amend the application for a patent for utility model or design on its or his own initiative. Where an applicant amends the document of its or his patent application for a patent after receipt of the notification of the observations from the Patent Administrative Organ under the State Council of the examination, the amendment shall be made according to the requirements in the notified observations. The Patent Administrative Organ under the State Council may, on its own initiative, correct obvious lexical or graphic errors in the patent application document, where the Patent Administrative Organ under the State Council makes the corrections on its own initiative, it shall notify the applicant of the corrections. Rule 52 When an amendment to the description or the claims in an application for a patent for invention or utility model is made, a replacement sheet in the prescribed form shall be submitted, unless the amendment concerns only the alteration, insertion or deletion of a few words. Where an amendment to the drawings or photographs of an application for a patent for design is made, a replacement sheet in the prescribed form shall be submitted. Rule 53 According to the provisions of Article 38 of the Patent Law, the situations where after examination as to substance of an application for patent for invention shall be rejected by the Patent Administrative Organ under the State Council shall comprise the following: (1) where the application does not comply with the provisions of Rule 2, paragraph one, of these Implementing Regulations; (2) where the application falls under the provisions of Articles 5 or 25 of the Patent Law; or it does not comply with the provisions of Article 22 of the Patent Law and Rule 13, paragraph one, Rule 20, paragraph one, or Rule 21, paragraph two, of these Implementing Regulations, or the applicant cannot obtain a patent right according to the provisions of Article 9 of the Patent Law; (3) where the application does not comply with the provisions of Article 26, paragraphs three or four, or Article 31, paragraph one, of the Patent Law; (4) where the amendment to the application is not in conformity with the provision of Article 33 of the Patent Law or the divisional application is not in conformity with the provision of Rule 43, paragraph one, of these Implementing Regulations. Rule 54 After the Patent Administrative Organ under the State Council issues the notification to grant the patent right, the applicant shall go through the formalities of registration within two months from the date of receipt of the notification. If the applicant goes through the formalities of registration within the said time limit, the Patent Administrative Organ under the State Council shall grant the patent right, issue the patent certificate, and announce it. If the time limit for going through the formalities of registration is not met, the applicant shall be deemed to have abandoned its or his right to obtain the patent right. Rule 55 After the decision to grant the patent right for utility model is announced, the patentee of the utility model may file a request with the Patent Administrative Organ under the State Council to make a search report for the patent for utility model. Where the search report for a patent for utility model is requested for, a request shall be filed and the patent number of the patent for utility model be indicated. Each request shall be limited to one patent for utility model only. After receipt of the request for the search report for a patent for utility model, the Patent Administrative Organ under the State Council shall examine the request. If the request is not in conformity with the specified requirements, the applicant filing the request shall be notified to make corrections within the specified time limit. Rule 56 If the request for the search rport for a patent for utility model complies with the prescription upon examination, the Patent Administrative Organ under the State Council shall promptly make the report on the search of th patent for utility model. Where, the Patent Administrative Organ under the State Council, upon the search, finds that the related patent for utility model does not comply with the provision of , Article 22 of the Patent Law concerning novelty or inventiveness, reference documents shall be cited, reasons be stated, together with a copy of the cited reference documents. Rule 57 The Patent Administrative Organ under the State Council shall promptly correct any errors in the Patent Gazette or patent documents once they are found, and announce the correction. Chapter IV. Reexamination of Patent Application and Invalidation of Patent Right Rule 58 The Patent Reexamination Board shall consist of experienced technical and legal experts designated by the Patent Administrative Organ under the State Council. The Head of the Patent Administrative Organ under the State Council shall be the Director of the Board. Rule 59 Where the applicant requests the Patent Reexamination Board to make a reexamination in accordance with the provisions of Article 41 of the Patent Law, it or he shall file a request for reexamination and state the reasons therefor. The relevant supporting documents shall be provided when necessary. Where the request for reexamination does not comply with the prescribed form, the person making the request shall rectify it within the time limit fixed by the Patent Reexamination Board. If the time limit for making rectification is not met, the request for reexamination shall be deemed not to have been filed. Rule 60 When filing the request for reexamination or responding to the notification of reexamination by the Patent Reexamination Board, the person making the request may amend the patent application document; however, the amendment shall be limited to the elimination of the defects pointed out in the decision of rejection or the notification of reexamination. The amended patent application document shall be submitted in two copies. Rule 61 The Patent Reexamination Board shall send the request for reexamination which the Board has received to the examination department of the Patent Administrative Organ under the State Council which has made the examination to make an examination. Where the examination department agrees to revoke its former decision upon the request of the person requesting reexamination, the Patent Reexamination Board shall make a decision accordingly and notify that person. Rule 62 Where the Patent Reexamination Board finds after reexamination that the request does not comply with the relevant provisions of the Patent Law and these Implementing Regulations, it shall invite the person requesting reexamination to submit his observations within the specified time limit. If the time limit for making response is not met, the request for reexamination shall be deemed to have been withdrawn; after the observations or amendment, the Patent Reexamination Board still finds that the patent application document does not comply with the relevant provisions of the Patent Law and these Implementing Regulations, it shall make its reexamination decision to uphold the initial decision of rejection. Where the Patent Reexamination Board finds after reexamination that the decision of rejection does not comply with the relevant provisions of the Patent Law and these Implementing Regulations, or, , , , finds that the amended patent application document has eliminated the defects pointed out in the decision of rejection, it shall revoke the initial decision of rejection, and the examination department which has made the examination shall proceed with the examination proceeding. Rule 63 At any time before the Patent Reexamination Board makes its decision on the request for reexamination, the person making the request may withdraw his request for reexamination. Where the person making the request for reexamination withdraws his request for reexamination before the Patent Reexamination Board makes its decisions, the reexamination proceeding terminates. Rule 64 Anyone requesting invalidation or partial invalidation of a patent right according to the provisions of Article 45 of the Patent Law shall submit the request and the necessary evidence in two copies. The request for invalidation, together with all the evidence submitted, specifically states the reasons on which the request is based and the proofs each of the reasons is based on. The reasons on which the request for invalidation is based mentioned in the proceding paragraph shall comprise that the invention-creation for which the patent right is granted does not comply with the provisions of Articles 22 or 23, Article 26, paragraph three or four, or Article 33 of the Patent Law, or Rule 2, or Rule 13, paragraph one, or Rule 20, paragraph one, or Rule 21, paragraph two, of these Implementing Regulations; or it falls under the provisions of Articles 5 or 25 of the Patent Law; or the person to whom the patent was granted cannot obtain a patent right according to the provisions of Article 9 of the Patent Law. Rule 65 Where the request for invalidation of patent right does not comply with the provisions of Rule 64 of these Implementing Regulations, the Patent Reexamination Board shall not accept it. Where the request for invalidation of a patent is submitted on the same reason and evidence after the Patent Reexamination Board makes its decision on the request for invalidation of the patent, the Patent Reexamination Board shall not accept it. Where a request is filed for invalidation of a patent for design on the ground that the patented design collides with the legistimate right another person has acquired earlier, but no effective decision or judgement is submitted which proves the handling of the collision of rights in question,the Patent Administrative Organ under the State Council shall not accept it. Where the request for invalidation of the patent right does not comply with the prescribed form, the person making the request shall rectify it within the time limit fixed by the Patent Reexamination Board. If the rectification fails to be made within the time limit, the request for invalidation shall be deemed not to have been filed. Rule 66 After the Patent Reexamination Board receives the request for invalidation, the person making the request may give additional reasons or evidence within one month from the date of submission of the request for invalidation. Where additional reasons or evidence are given after the expiration of the time limit, the Patent Reexamination Board may disregard the reasons or evidence. Rule 67 The Patent Reexamination Board shall send a copy of the request for invalidation of the patent right and copies of the relevant documents to the patentee and invite it or him to present its or his observations within a specified time limit. The patentee and the person making the request for invalidation shall respond to the notification of the transmital of documents or the notification of examination of the request for invalidation from the Patent Reexamination Board within the prescribed time limit. Where no response is made within the time limit, the hearing procedure of the Patent Reexamination Board will not be affected. Rule 68 In the process of examination of the request for invalidation, the patentee of a patent for invention or utility model may amend its or his patent claims, but may not broaden the scope of protection of the initial patent. The patentee of a patent for invention or utility model may not amend the patent description and the drawings, and the patentee of a patent for design may not amend the drawings, photographs and brief explanations thereof. Rule 69 The Patent Reexamination Board may, at the request of an interested party or as the facts of a case so require, decide to conduct oral hearing of the request for invalidation. Where the Patent Reexamination Board decides to orally hear the request for invalidation, it shall send a notification of oral hearing to the interested parties, informing the date and place of the oral hearing. The interested parties shall respond within the time limit fixed in the notification. Where the person making the request for invalidation fails to respond to the notification of the oral hearing from the Patent Reexamination Board, nor attends the oral hearing, its or his request for invalidation shall be deemed to have been withdrawn; where the patentee does not attend the oral hearing, the hearing may be held in its or his absence. Rule 70 In the proceeding for examination of the request for invalidation, the time limit fixed by the Patent Reexamination Board shall not be extended. Rule 71 The person requesting invalidation may withdraw his request before the Patent Reexamination Board makes a decision on it. Where the person requesting invalidation withdraws his request before the Patent Reexamination Board makes its decision, the procedure for the examination of the request for invalidation terminates. Chapter V Compulsory License for Exploitation of Patent Rule 72 After the expiration of three years from the grant of the patent right, any entity may, in accordance with the provisions of Article 48 of the Patent Law, request the Patent Administrative Organ under the State Council to grant a compulsory license. Any entity or individual requesting a compulsory license shall submit to the Patent Administrative Organ under the State Council a request for compulsory license and state the reasons therefor, together with relevant supporting documents. The request and supporting documents shall be in two copies respectively. The Patent Administrative Organ under the State Council shall send a copy of the request for compulsory license to the patentee. He or it shall make his or its observations within the time limit specified by the Patent Administrative Organ under the State Council. Where no response is made within the time limit, the Patent Administrative Organ under the State Council will not be affected in making a decision to grant a compulsory license. The decision of the Patent Administrative Organ under the State Council granting a compulsory license for exploitation shall provide that the exploitation shall be predominately for the supply of the domestic market; where the invention-creation covered by the compulsory license relates to a semi-conductor technology, the exploitation under the compulsory license is limited to public and non-commercial use or to the use in remedy of an action against unfair competition as determined by the judicial or administrative procedure. Rule 73 Any party requesting, in accordance with the provisions of Article 54 of the Patent Law, the Patent Administrative Organ under the State Council to adjudicate the fees for exploitation, shall submit a request for adjudication and furnish documents showing that the parties have not been able to conclude an agreement in respect of the amount of the fees. The Patent Administrative Organ under the State Council shall make an adjudication within three months from the date of receipt of the request and notify the parties accordingly. Chapter VI Rewards to Inventor or Creator of Service Invention-creation Rule 74 Any state-owned enterprise or institution granted a patent right shall award to the inventors or creators of the invention-creation a sum of money as prize within three months from the date of the announcement of the patent grant. The sum of money prize for a patent for invention shall not be less than 2000 yuan; the sum of money prize for a patent for utility model or design shall not be less than 500 yuan. Where an invention-creation was made on the basis of an inventor's or creator's proposal adopted by the entity to which he belongs, the state-owned enterprise or institution granted the right shall award to him a money prize liberally. Any enterprise holding the patent right may include the said money prize paid to such inventors or creators into its production cost; any institution holding the patent right may disburse the said money prize out of its operating expenses. Rule 75 Any stated-owned enterprise or institution granted a patent right shall, after exploiting the patent for invention-creation within the duration of the patent right, draw each year from any increase in profits after taxation a percentage of not less than 2�� due to the exploitation of the said patent for invention or the utility model, or a percentage of not less than 0.2�� due to the exploitation of the said patent for design, and award it to the inventor or creator as remuneration. The enterprise or institution shall, otherwise, by making reference to the said percentage, award a lump sum of money to the inventor or creator as remuneration. Rule 76 Where any state-owned enterprise or institution granted patent right authorizes other entities or individuals to exploit its or his patent, it shall, after taxation, draw a percentage of not less than 10�� from the fees for the authorisation of exploitation of the said patent it received and award it to the inventor or creator as remuneration. Rule 77 The other Chinese entities or institutions may award to the inventor or creator money prize and remuneration by making reference to the provisions in this Chapter. Chapter VII Protection of Patent Right Rule 78 "The administrative authority for patent affairs" mentioned in the Patent Law and these Implementing Regulations refers to the administrative authorities for patent affairs set up by the people's governments of the provinces, autonomous regions and municipalities directly under the Central Government and the people's governments of the other municipalities which have a lot of patent- related work to administer and are capable of handling the work. Rule 79 Except provided for in Article 57 of the Patent Law, the administrative authorities for patent affairs may also, on the request of an interested party, make mediation of patent-related disputes as follows: (1) disputes over the right to apply for patent and ownership of patent right; (2) disputes over the qualification of inventors or creator; (3) disputes over the rewards and remuneration for inventors or creators of service inventions; and (4) disputes over the exploitation of an invention without paying appropriate fees after the publication of the applications for patents for the invention and before the grant of the patent right. In respect of the disputes mentioned in the preceding subparagraph (4), any patentee requesting the administrative authority for patent affairs for a mediation shall submit its or his request after the grant of the patent right. Rule 80 The Patent Administrative Organ under the State Council shall provide operational guidance for the administrative authorities for patent affairs to handle and mediate patent disputes. Rule 81 Where any interested party requests for handling or mediation of a patent dispute, the request is under the jurisdiction of the administrative authority of the place which the respondent has its or his domicile or of the place where the infringing act takes place. Where two or more administrative authorities for patent affairs have the jurisdiction over a patent dispute, an interested party may file request with one of them; where the interested party files its or his request with two or more administrative authorities for patent affairs having the jurisdiction, the dispute is under the jurisdiction of the administrative authority for patent affairs which first receives the request. Where a dispute arises over the jurisdiction of the administrative authorities for patent affairs, the dispute is put under the jurisdiction designated by the administrative authority for patent affairs under the people's government at their mutually next higher level; in the absence of such an administrative authority for patent affairs, the dispute is under the jurisdiction designated by the Patent Administrative Organ under the State Council. Rule 82 Where, in the course of handling a dispute arising from patent infringement, the respondent submits a request for invalidation of the patent in question and it is received by the Patent Reexamination Board, it or he may request the administrative authority for patent affair to suspend the handling. Where the administrative authority for patent affairs finds that the grounds raised by the respondent for the suspension is obviously untenable, it may not suspend the handling. Rule 83 Where any patentee puts a patent indication on its or his patented product or the package thereof pursuant to the provision of Article 15 of the Patent Law, it or he shall make the indication in the manner prescribed by the Patent Administrative Organ under the State Council. Rule 84 The following acts are the acts of counterfeiting patents of other persons: (1) indicating, without authorisation, another person's patent number on the products which one manufactures or sells or on the package thereof; (2) using, without authorisation, another person's patent number in advertisement or other promotional material, causing the related technology to be mistaken for the patented technology of another person; (3) using, without authorisation, another person's patent number in a contract, causing the technology mentioned in the contract to be mistaken for the patented technology of another person; and (4) forging, or mutilating patent certificates, patent documents or patent application documents. Rule 85 The following acts are the acts of passing off patents of other persons: (1) manufacturing or marketing a non-patent product marked with a patent indication; (2)continuing to put a patent indication on products one manufactures or sells after invalidation of the patent right; (3) calling a non-patented technology a patented technology in advertisement or other promotional materials; (4) calling a non-patented technology a patented technology in a contract; and (5) forging, or mutilating patent certificates, patent documents or patent application documents. Rule 86 Where any interested party has requested the administrative authority for patent affairs to handle the matter of, or instituted legal proceedings in the people's court for, a dispute over the ownership of the right to apply for patent or of the patent right, it or he may request the Patent Administrative Organ under the State Council to suspend the relevant procedure. Where any party requests for suspension of the relevant procedure in accordance with the foregoing paragraph, it or he shall file the request with the Patent Administrative Organ under the State Council together with a copy of the relevant documents received by the administrative authority for patent affairs or the people's court. After the decision made by the administrative authority for patent affairs in handling the matter or the ruling made by the people's court takes effect, the interested party shall perform the formalities at the Patent Administrative Organ under the State Council for resuming the relevant procedure. If the dispute over the ownership of the right to apply for patent or of the patent right fails to be closed within one year starting from the date of suspension and continued suspension is necessary, the person making the request shall request for the continuation of the suspension within the time limit. Where no request for continuation is submitted at the expiration of the time limit, the Patent Administrative Organ under the State Council shall automatically resume the relevant procedure. Rule 87 Where the people's court decides to adopt measures to preserve the patent right in a civil case it is hearing, the Patent Administrative Organ under the State Council, when assisting in the execution of these measures, suspends the procedure relevant to the patent right preserved. Where, after the expiration of the term of preservation, the people's court does not decide to continue to adopt the preservative measures, the Patent Administrative Organ under the State Council shall automatically resume the relevant procedure. Chapter VIII Patent Register and Patent Gazette Rule 88 The Patent Administrative Organ under the State Council shall maintain a Patent Register in which the following matters relating to patent applications and any patent right shall be recorded: (1) any grant of the patent right; (2) any transfer of the right to apply for patent, or the patent right; (3) any hypothecation and preservation of the patent right and their termination; (4) any recordal of the licensing contracts for exploitation of the patent; (5) any invalidation of the patent right; (6) any cessation of the patent right ; (7) any restoration of the patent right; (8) any compulsory license for exploitation of the patent; and (9) any changes in the name, the nationality and the address of the patentee. Rule 89 The Patent Administrative Organ under the State Council shall publish the Patent Gazette at regular intervals, publishing or announcing the following: (1) the bibliographic data contained in patent applications; (2) the abstract of the description of an invention or utility model, the drawings or photographs of a design and its brief explanation; (3) any request for examination as to substance of an application for a patent for invention and any decision made by the Patent Administrative Organ under the State Council to proceed on its own initiative to examine as to substance an application for a patent for invention; (4) any declassification of secret patents; (5) any rejection, withdrawal and being deemed withdrawal of an application for a patent for invention after its publication; (6) any grant of the patent right; (7) any invalidation of the patent right; (8) any cessation of the patent right; (9) any transfer of the right to apply for patent, or the patent right; (10) any recordal of the licensing contracts for exploitation of the patent; (11) any hypothecation and preservation of the patent right and their termination; (12) any grant of compulsory license for exploitation of the patent; (13) any restoration of a patent application or patent right; (14) any change in the name or address of the patentee; (15) any notification to the interested party whose address is not known; (16) any correction made by the Patent Administrative Organ under the State Council; and (17) any other related matters. The description, its drawings and the claims of an application for a patent for invention or utility model shall be published in pamphlet form by the Patent Administrative Organ under the State Council. Chapter IX Fees Rule 90 When any person files an application for a patent with, or has other formalities to perform at, the Patent Administrative Organ under the State Council, he or it shall at the same time pay the following fees: (1) filing fee, additional application fee as prescribed and application publication fee; (2) fee for examination as to substance and fee for reexamination of application for patent for invention; (3) patent registration fee, patent publication fee, application maintenance fee and annual fee; (4) fee for a change in the bibliographic data, fee for claiming priority, fee for a request for restoration of right, fee for a request for extention of time limit and fee for a search report for the patent for utility model; and (5) fee for a request for invalidation, fee for a request for suspension of a procedure, fee for a request for compulsory license and fee for a request for adjudication on exploitation fee of compulsory license. The rates of the fees mentioned in the preceding paragraph shall be prescribed by the competent Pricing Department of the State Council in conjunction with the Patent Administrative Organ under the State Council. Rule 91 The fees provided for in the Patent Law and in these Implementing Regulations may be paid directly to the Patent Administrative Organ under the State Council or paid by way of bank or postal remittance, or in any other manner specified by the Patent Administrative Organ under the State Council. Where fees are paid by way of bank or postal remittance, the applicant or the patentee shall indicate on the money order the filing number or the patent number, and the titles of the fees to be paid; where it or he fails to comply with this provision, the fee-payment formality is deemed not to have been performed. Where fees are paid directly to the Patent Administrative Organ under the State Council, the very date on which the fees are paid is the date of payment. Where fees are paid by way of postal remittance, the date of the postmark showing the postal remittance of such fee shall be the date of payment. Where fees are paid by way of bank remittance, the date on which the transfer of such fee is actually ordered shall be the date of payment. However, where the time between such a date and the date of receipt of the order at the Patent Administrative Organ under the State Council lasts more than fifteen days, unless the date of remittance is proved by the bank or the post office, the date of receipt at the Patent Administrative Organ under the State Council shall be the date of payment. Where any patent fee is paid more than as prescribed, paid once again or wrongly paid, the person making the payment may, within one year from the date of payment, request the Patent Administrative Organ under the State Council for a refund. Rule 92 The applicant shall, after receipt of the notification of acceptance of the application, pay the filing fee, the application publication fee and the additional fee as prescribed at the latest within two months from the date of filing. If the fee is not paid or not paid in full within the time limit, the application shall be deemed to have been withdrawn. Where the applicant claims the right of priority, he or it shall pay the fee for claiming priority at the time when paying the filing fee. If the fee is not paid or not paid in full within the time limit, the claim to the right of priority shall be deemed not to have been made. Rule 93 Where a request for an examination as to substance, a restoration of right or a reexamination of patent right is made, by the party concerned, the relevant fee shall be paid within the time limit as prescribed respectively for such requests in the Patent Law and these Implementing Regulations. If the fee is not paid or not paid in full within the time limit, the request is deemed not to have been made. Rule 94 Where the applicant for a patent for invention has not been granted a patent right within two years from the date of filing, it or he shall pay a fee for the maintenance of the application from the third year. Rule 95 When the applicant goes through the formalities of patent registration, it or he shall pay the patent registration fee, the patent publication fee and the annual fee of the year in which the patent right was granted. The applicant for patent for invention shall pay all the maintenance fees of the application for each year, excluding that for the year in which the patent right was granted. If such fees are not paid in the prescribed time limit, the patent registration shall be deemed not to have been made. The subsequent annual fees shall be paid in advance within the month before the expiration of the preceding year. Rule 96 Where the annual fee of the years after the year in which the patent was granted is not paid in due time by the patentee, or the fees are not paid in full, the Patent Administrative Organ under the State Council shall notify the patentee to pay the fee or to make up the insufficiency within six months from the expiration of the time limit within which the annual fee was to be paid, and at the same time pay a surcharge; the amount of the surcharge is computed by an addition of 5 percent of the total amount of the annual fee of the same year for each month lapsed after the time limit prescribed for the payment. Where the fees are not paid within the time limit, the patent right shall be deemed lapsed from the expiration of the time limit within which the annual fee should be paid. Rule 97 The fee for a change in the bibliographic data, fee for a search report on a patent for utility model, fee for a request for suspension of procedure, fee for a request for compulsory license, fee for a request for adjudication on exploitation fee of a compulsory license and fee for a request for invalidation shall be paid as prescribed within one month from the date on which such request is filed. The fee for a request for extension of time limit shall be paid before the date on which the corresponding time limit expires. If the fee is not paid or not paid in full within the time limit, the request shall be deemed not to have been made. Rule 98 Where any applicant or patentee has difficulties in paying the various fees prescribed in these Implementing Regulations, it or he may, according to prescriptions, submit a request to the Patent Administrative Organ under the State Council, asking for a reduction or postponement of the payment. The conditions for the reduction and postponement of the payment shall be prescribed by the Patent Administrative Organ under the State Council in consultation with the competent Financial Department and the competent Pricing Department of the State Council. Chapter X Special Provisions for International Applications Rule 99 In accordance with Article 20 of the Patent Law, the Patent Administrative Organ under the State Council receives international patent applications filed under the Patent Cooperation Treaty. The Provisions of this Chapter are applicable to the requirements and procedure for international applications filed and designating China pursuant to the Patent Cooperat Treaty (hereinafter referred to as the international applications) to enter the national phase in China; where it is provided for in this Chapter, the relevant provisions of the Patent Law and the other Chapters of these Implementing Regulations shall apply. Rule 100 Any international application designating China as of the international filing date accorded under the Patent Cooperat Treaty is considered a patent application filed with the Patent Administrative Organ under the State Council, and the filing date of the international application is deemed the filing date referred to in Article 28 of the Patent Law. Where, in the international phase, an international application or the designation of China in an international application is withdrawn or deemed to have been withdrawn, the effect of the international application shall cease in China. Rule 101 Any applicant of an international application shall, within 30 months from the priority date referred to in Article 2 of the Patent Cooperation Treaty (referred to as priority date in the Chapter), perform the following procedures for international application to enter the national phase in China in the Patent Administrative Organ under the State Council; where any international application elected China within 19 months from the priority date and the election remains valid, the applicant of the international application shall, within 30 months from the priority date, perform the following procedure for an international application to enter the national phase in China in the Patent Administrative Organ under the State Council: (1) submit a declaration in writing for the international application to enter the national phase in China, in which shall be indicated the international application number,and, in Chinese, the kind of patent right to be sought, the title of the invention-creation, the name or title of the applicant, the address of the applicant and the name of the inventor. All these information shall be consistent with the records of the International Bureau; (2) pay the filing fee, additional application fee and application publication fee specified in Rule 90, paragraph one, of these Implementing Regulations; (3) for any international application filed in a language other than Chinese, the Chinese translation of the description, claims, any text matter of the drawings, and the abstract of the original international application shall be submitted; where an international application is filed in Chinese, a copy of the abstract of the international publication shall be submitted; and (4) where an international application is accompanied with drawings, a copy of the drawings shall be submitted. Where an international application is filed in Chinese, a copy of the figure for the abstract of the international publication shall be submitted. Where any applicant fails to perform the procedure for entering the national phase in China within the time limit specified in the foregoing paragraph, it or he may, after payment of the grace-period fee, do so before the expiration of the corresponding time limit of twenty-two or thirty-two months from the priority date. Rule 102 Any applicant fails to perform the procedure for entering the national phase in China within the time limit prescribed in Rule 101, paragraph two, of these Implementing Regulations or falls under any one of the provisions thereof within the time limit, the effect of its or his international application shall cease in China: (1) the international application number is not indicated in the declaration for entering the national phase in China; (2) the filing fee, application publication fee prescribed in Rule 90, paragraph one. and the grace-period fee prescribed in Rule 101, paragraph two, of these Implementing Regulations; or (3) where the international application is filed in a language other than Chinese, the Chinese translation of the description and claims of the original international application is not submitted. The provision of Rule 7, paragraph two, of these Implementing Regulations does not apply to any international application which has ceased to be valid in China. Rule 103 Where any applicant falls under any one of the following subprovisions when entering the national phase in China, the Patent Administrative Organ under the State Council shall notify the applicant to make corrections within the prescribed time limit: (1) where the Chinese translation or a copy of the abstract is not submitted; (2) where a copy of the drawings or the figure for the abstract is not submitted; (3) where indications are not given in Chinese in the declaration for entering the national phase in China of the title of the invention-creation, the name or title of the applicant, the address of the applicant and the name of the inventor; or (4) where the declaration for entering the national phase in China does not comply with the prescription in content or in form. Where the corrections are not made within the prescried time limit, the application is deemed to have been withdrawn. Rule 104 Where an international application was amended in the international phase, and the applicant requests that the examination is made on the basis of the amended application document, the applicant shall submit the amended Chinese translation of the amended application document before the Patent Administrative Organ under the State Council completes the preparation for national publication. Where the Chinese tr, anslation is not submitted within the time limit, the Pat, ent Administrative Organ under the State Council shall disregard the amendments made by the applicant in the international phase. Rule 105 Any applicant, when performing the procedure for entering the national phase in China, shall meet the following requirements: (1) where the inventor is not indicated in the international application, the name of the inventor shall be indicated in the declaration for entering the national phase in China; (2) where a procedure is performed to change the applicant at the International Bureau in the international phase, proofs that the changed applicant enjoys the right to apply for patent shall be submitted; (3) where the applicant and the applicant of the earlier application on which the right of priority is based are not the same person, or the applicant changed its or his name after filing the earlier application, the proofs shall be submitted, if necessary, that the applicant enjoys the right of priority; and (4) where the invention-creation of the international application falls under any of the provisions of Article 24 (1) or (2) of the Patent Law and a declaration thereof was made when filing the international application, a statement thereof shall be made in the declaration for entering the national phase in China, and the relevant proofs prescribed in Rule 3, paragraph 2, of these Implementing Regulations shall be submitted within two months from the date of performance of the procedure for entering the national phase in China. Where the applicant fails to meet the requirements of (1), (2) and (3) of the preceding paragraph, the Patent Administrative Organ under the State Council shall invite it or him to make correction within the prescribed time limit. Where the correction under (1) and (2) is not made, the application is deemed to have been withdrawn; where the correction under (3) is not made, the claim for the priority right is deemed not to have been made. Where the applicant fails to meet the requirement of (4) in paragraph one of this Rule, the provision of Article 24 of the Patent Law does not apply to the application. Rule 106 Where any applicant makes an indication of the deposit of a sample of biological material in accordance with the provisions of the Patent Cooperation Treaty, the applicant is deemed to have met the requirement under Rule 25 (3) of these Implementing Regulations. The applicant shall indicate the document recording the deposit of a sample of biological material and the specific place in the declaration for entering the national phase in China. Where the applicant records the deposit of a sample of the biological material in the description of the originally filed international application, but did not make the indication in the declaration for entering the national phase in China, it or he shall make rectification within four months from the date of performance of the procedure for entering the national phase in China. Where the correction is not made within the prescribed time limit, the biological material is deemed not to have been deposited. Where the applicant submits the receipt of deposit and the viability proof of a sample of the biological material to the Patent Administrative Organ under the State Council within four months from the date of performance of the procedure for entering the national phase in China, the deposit is deemed to have been filed within the time limit prescribed in Rule 25 (1) of these Implementing Regulations. Rule 107 Where the applicant claimed one or more priorities in the international phase and the right of priority remains valid when entering the national phase in China, the written declaration is deemed to have been made in accordance with the provision of Article 30 of the Patent Law. Where the applicant finds that there are writing errors or the filing number of the earlier application is not indicated in the written declaration of the right of priority submitted in the international phase, it or he may request for correction of the errors or for indicating the filing number of the earlier application when performing the procedure for entering the national phase in China. The applicant filing a request for the correction shall pay the fee for request for correction in the claim for right of priority. Where the applicant submitted a copy of the earlier application document in the international phase according to the provisions of the Patent Cooperation Treaty, it is not necessary to submit it to the Patent Administrative Organ under the State Council when performing the procedure for entering the national phase in China. Where the applicant did not submit it in the international phase, the Patent Administrative Organ under the State Council, when finding it necessary, may invite it or him to submit it within the specified time limit. Where the applicant fails to do so after the expiration of the time limit, its or his claim for priority right is deemed not to have been maded. Where the claim for right of priority is deemed not to have been made in the international phase, which has been announced by the International Bureau, the applicant may, with justified reasons, file a request with the Patent Administrative Organ under the State Council to restore its or his claim to the right of the priority. Rule 108 Where any applicant requests the Patent Administrative Organ under the State Council for early processing and examining its or his international application prior to the expiration of 30 months starting from the priority date, it or he shall, in addition to performing the procedure for entering the national phase in China, file a request pursuant to Article 23 (2)of the Patent Cooperation Treaty. Where the International Bureau does not transmit the international application to the Patent Administrative Organ under the State Council, the applicant shall submit a certified copy of the international application. Rule 109 In respect of any international application for patent right for utility model, the applicant may file a request with the Patent Administrative Organ under the State Council for amending the description, the drawings and the claims within one month from the date of performing the procedure for entering the national phase in China. To any international application for patent for invention, the provision of Rule 51, paragraph one, of these Implementing Regulations applies. Rule 110 Where any applicant finds any error in the Chinese translation of the description, the claims or any text matter of the drawings, it or he may submit the correction based on the original text of the international application within the prescribed time limit as follows: (1) before the preparation for national publication is completed by the Patent Administrative Organ under the State Council; and (2) within three months from the date of receipt of the notification of an application for a patent for invention to enter into the substantive examination proceeding issued by the Patent Administrative Organ under the State Council. The applicant correcting the translation errors shall file a request in writing, submit the correction sheet of the translation and pay the prescribed translation correction fee. Where the applicant is required to correct the translation in the notification of the Patent Administrative Organ under the State Council, it or he shall perform the formality within the time limit prescribed in (2) of this Rule; where the prescribed formality is not performed within the time limit, the application is deemed to have been withdrawn. Rule 111 For an international application for patent for invention, the Patent Administrative Organ under the State Council, upon preliminary examination, finds it to be in conformality with the relevant provisions of the Patent Law and these Implementing Regula- tions and shall publish the application in the Patent Gazette; where the international application is filed in a language other than Chinese, the Chinese translation of the application document shall be published. For the international application for patent for invention published in Chinese internationally by the International Bureau, the provision of Article 13 of the Patent Law applies from the date of international publication; for the international application published internationally in a language other than Chinese by the International Bureau, the same provision applies from the date of publication by the Patent Administrative Organ under the State Council. For the purpose of international application, the publication or announcement mentioned in Articles 21 and 22 of the Patent Law means the publication specified in paragraph one of this Rule. Rule 112 When any international application contains two or more inventions or utility models the applicant may, after performing the procedure for entering the national phase in China, file a divisional application pursuant to the provision of Rule 42, paragraph one, of these Implementing Regulations. Where, in the international phase, the International Searching Authority or the International Preliminary Examination Authority finds that an international application does not comply with the requirement of unity under the Patent Cooperation Treaty and the applicant fails to pay the additional fee as prescribed, resulting in some part of the international application not being subjected to the international search or the international preliminary examination, or where the applicant, entering the national phase in China, requests that the said parts be taken as the basis for the examination, and the Patent Administrative Organ under the State Council finds the International Searching Authority or the International Preliminary Examination Authority is right in the judgement of the unity of the invention in question, it shall notify the applicant to pay the unity restoration fee within the prescribed time limit. If the fee is not paid or not paid in full within the time limit, the part of the international application which has not been searched or subjected to the international preliminary examination is deemed to have been withdrawn. Rule 113 Where the applicant submits the documents and pays the fees according to the provision of Rule 101 of these Implementing Regulations, the date on which the Patent Administrative Organ under the State Council receives the documents is the submitting date and the date of receipt of the fees is the date of payment. Where there is a delay in the postal delivery of the submitted documents and the applicant proves that the documents are sent by mail , five days before the expiration of the time limit specified in Rule 101 of these Implementing Regulations within one month from the date on which the delay is found, the documents are deemed to have been received on the date of the expiration of the time limit. However, the applicant shall not furnish the proof later than six months after the expiration of the time limit specified in Rule 101 of these Implementing Regulations. The applicant may submit, by fax, the documents required in Rule 101 of these Implementing Regulations. Where the applicant submits them by fax, the date on which the Patent Administrative Organ under the State Council receives the fax is the submitting date. The applicant shall submit the original of the faxed documents to the Patent Administrative Organ under the State Council within fourteen days from the date of submission by fax. If the original is not submitted after the expiration of the time limit, the documents are deemed not to have been submitted. Rule 114 Where the right of priority is claimed in the international application, the applicant shall pay the fee for claiming the right of priority when performing the procedure for entering the national phase in China; if the fee is not paid or not paid in full, the Patent Administrative Organ under the State Council shall notify the applicant to make the payment within the specified time limit; if the fee is still not paid or not paid in full after the expiration of the time limit, the claim for right of priority is deemed to have not been made. Rule 115 Where any international application is refused by the relevant international authority to be accorded the international filing date or is declared to have been withdrawn, the applicant may, within two months from the date of receipt of the notification, request the International Bureau to transmit copies of any documents in the file of the international application to the Patent Administrative Organ under the State Council and perform the procedure as specified in Rule 101 of these Implementing Regulations in the Patent Administrative Organ under the State Council within the time limit. The Patent Administrative Organ under the State Council shall, after receipt of the documents transmitted by the International Bureau, make review as to whether the decision made by the international authority is right or not. Rule 116 Where, owing to any translation errors, any patent right granted on the basis of an international application makes its scope of protection determined in accordance with the provision of Article 56 of the Patent Law go beyond the scope expressed in the original text of the international application, the scope of protection limited according to the original text prevails. Where the scope of protection is made less than the scope stated in the original text of the international application, the scope of protection established when granting the right prevails. Chapter XI Supplementary Provisions Rule 117 Any person may, after approval by the Patent Administrative Organ under the State Council, inspect or copy the files of the published or announced patent applications and the Patent Register. Any person may request the Patent Administrative Organ under the State Council to issue a copy of extracts from the Patent Register. The files of patent applications which have been withdrawn or deemed to have been withdrawn or which have been rejected, shall not be preserved after expiration of two years from the date on which they cease to be valid. Where the patent right ceases or has been abandoned or invalidated in whole, the files shall not be preserved after expiration of three years from the date on which the patent right ceases to be valid. Rule 118 Any patent application which is filed with, and any formalities which are performed at the Patent Administrative Organ under the State Council, shall be made in the form prescribed by the Patent Administrative Organ under the State Council and signed or sealed by the applicant, the patentee, any other interested person or his or its representative. Where any patent agency is appointed, it shall be sealed by such agency. Where a change of the name of the inventor, the name, nationality and address of the applicant or the patentee, or the name and address of the patent agency and the name of the patent agent is requested, a request for a change in the bibliographic data shall be made to the Patent Administrative Organ under the State Council, together with the relevant supporting documents. Rule 119 The documents relating to a patent application or patent right which are mailed to the Patent Administrative Organ under the State Council shall be mailed by registered letter, not by parcel. When any document (not including any patent application filed for the first time) is submitted to and any formalities are performed in the Patent Administrative Organ under the State Council, the filing number or the patent number, the title of the invention-creation and the name of the applicant or the patentee shall be indicated. Only documents relating to the same application shall be included in one letter. Rule 120 Any sheets constituting an application for patent shall be typed or printed. All the characters shall be in black ink, neat and clear and free from any alterations. Drawings shall be made in black ink with the aid of drafting instruments. The lines shall be uniformly thick and well-defined, and free from alterations. The request, description, claim, drawings and abstract shall be numbered separately in Arabic numerals and arranged in numerical order. The written language shall run from left to right. Only one side of each sheet sh, al, l , b, e used. Rule 121 The Patent Administrative Organ under the State Council shall formulate the Guidelines for Patent Examination in accordance with the Patent Law and these Implementing Regulations. Rule 122 These Implementing Regulations shall enter into force on 1 July 2001. The Implementing Regulations of the Patent Law of the People's Republic of China revised with approval by the State Council on 12 December 1992 and promulgated by the Patent Administrative Organ under the State Council on 21 December the same day shall be simultaneously abolished.
Patent Law of the People's Republic of China
Patent Law of the People's Republic of China Promulgator: the Standing Committee of the National People's Congress Promulgation Date: 2000-08-25 Status: Valid Effective Date: 2001-07-01 (Adopted at the 4th Meeting of the Standing Committee of the Sixth National People's Congress on March 12, 1984. Amended in accordance with the Decision of the Standing Committee of the Seventh National People's Congress on Amending the Patent Law of the People's Republic of China at its 27th Meeting on September 4, 1992. Amended again in accordance with the Decision of the Standing Committee of the Ninth National People's Congress on Amending the Patent Law of the People's Republic of China, adopted at its 17th Meeting on August 25, 2000.) TABLE OF CONTENTS Chapter I: General Provisions Chapter II: Requirements for Grant of Patent Right Chapter III: Application for Patent Chapter IV: Examination and Approval of Application for Patent Chapter V: Duration, Cessation and Invalidation of Patent Right Chapter VI: Compulsory License for Exploitation of Patent Chapter VII: Protection of Patent Right Chapter VIII: Supplementary Provisions Chapter I: General Provisions Article 1. This Law is enacted to protect patent rights for inventions-creations, to encourage invention-creation, to foster the spreading and application of inventions-creations, and to promote the development and innovation of science and technology, for meeting the needs of the construction of socialist modernization. Article 2. In this Law, "inventions-creations" mean inventions, utility models and designs. Article3. The Patent Administration Department Under the State Council is responsible for the patent work throughout the country. It receives and examines patent applications and grants patent rights for inventions-creations in accordance with law. The administrative authority for patent affairs under the people's governments of provinces, autonomous regions and municipalities directly under the Central Government are responsible for the administrative work concerning patents in their respective administrative areas. Article 4. Where an invention-creation for which a patent is applied for relates to the security or other vital interests of the State and is required to be kept secret, the application shall be treated in accordance with the relevant prescriptions of the State. Articles 5. No patent right shall be granted for any invention-creation that is contrary to the laws of the State or social morality or that is detrimental to public interest. Article 6. An invention-creation, made by a person in execution of the tasks of the entity to which he belongs, or made by him mainly by using the material and technical means of the entity is a service invention-creation. For a service intention-creation, the right to apply for a patent belongs to the entity. After the application is approved, the entity shall be the patentee. For a non-service invention-creation, the right to apply for a patent belongs to the inventor or creator. After the application is approved, the inventor or creator shall be the patentee. In respect of an invention-creation made by a person using the material and technical means of an entity to which he belongs, where the entity and the inventor or creator have entered into a contract in which the right to apply for and own a patent is provided for, such a provision shall apply. Article 7. No entity or individual shall prevent the inventor or creator from filing an application for a patent for a non-service invention-creation. Article 8. For an invention-creation jointly made by two or more entities or individuals, or made by an entity or individual in execution of a commission given to it or him by another entity or individual, the right to apply for a patent belongs, unless otherwise agreed upon, to the entity or individual that made, or to the entities or individuals that jointly made, the invention-creation. After the application is approved, the entity or individual that applied for it shall be the patentee. Article 9. Where two or more applicants file applications for patent for the identical invention-creation, the patent right shall be granted to the applicant whose application was filed first. Article 10. The right to apply for a patent and the patent right may be assigned. Any assignment, by a Chinese entity or individual, of the right to apply for a patent, or of the patent right, to a foreigner must be approved by the competent department concerned of the State Council. Where the right to apply for a patent or the patent right is assigned, the parties shall conclude a written contract and register it with the Patent Administration Department Under the State Council. The Patent Administration Department Under the State Council shall announce the registration. The assignment shall take effect as of the date of registration. Article 11. After the grant of the patent right for an invention or utility model, except where otherwise provided for in this Law, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make, use, offer to sell, sell or import the patented product; or use the patented process, and use, offer to sell, sell or import the product directly obtained by the patented process, for production or business purposes. After the grant of the patent right for a design, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make, sell or import the product incorporating its or his patented design, for production or business purposes. Article 12. Any entity or individua1 exploiting the patent of another shall conclude with the patentee a written license contract for exploitation and pay the patentee a fee for the exploitation of the patent. The licensee has no right to authorize any entity or individual, other than that referred to in the contract for exploitation, to exploit the patent. Article 13. After the publication of the application for a patent for invention, the applicant may require the entity or individual exploiting the invention to pay an appropriate fee. Article 14. Where any patent for invention, belonging to any state-owned enterprises or institution, is of great significance to the interest of the State or to the public interest, the competent departments concerned under the State Council and the people's governments of provinces, autonomous regions or municipa1ities directly under the Central Government may, after approval by the State Council, decide that the patented invention be spread and applied within the approved limits, and allow designated entities to exploit that invention. The exploiting entity shall, according to the regulations of the State, pay a fee for exploitation to the patentee. Any patent for invention belonging to a Chinese individual or an entity under collective ownership, which is of great significance to the interest of the State or to the public interest and is in need of spreading and application, may be treated alike by making reference to the provisions of the preceding paragraph. Article l5. The patentee has the right to affix a patent marking and to indicate the number of the patent on the patented product or on the packing of that product. Article 16. The entity that is granted a patent right shall award to the inventor or creator of a service invention-creation a reward and, upon exploitation of the patented invention-creation, shall pay the inventor or creator a reasonable remuneration based on the extent of spreading and application and the economic benefits yielded. Article l7. The inventor or creator has the right to be named as such in the patent document. Article 18. Where any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in China files an application for a patent in China, the application shall be treated under this Law in accordance with any agreement concluded between the country to which the applicant belongs and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of reciprocity. Article l9. Where any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in China applies for a patent, or has other patent matters to attend to, in China, it or he shall appoint a patent agency designated by the Patent Administrative Department Under the State Council to act as his or its agent. Where any Chinese entity or individual applies for a patent or has other patent matters to attend to in the country, it or he may appoint a patent agency to act as its or his agent. The patent agency shall comply with the provisions of laws and administrative regulations and handle patent applications and other patent matters according to the instructions of its clients. In respect of the contents of its clients' inventions-creations, except for those that have been published or announced, the agency shall bear the responsibility of keeping them confidential. The administrative regulations governing the patent agency shall be formulated by the State Council. Article 20. Where any Chinese entity or individual intends to file an application in a foreign country for a patent for invention-creation made in China, it or he shall file first an application for patent with the Patent Administration Department Under the State Council, appoint a patent agency designated by the said department to act as its or his agent, and comply with, the provisions of Article 4 of this Law. Any Chinese entity or individual may file an international application for patent in accordance with any international treaty concerned to which China is party. The applicant filing an international application for patent shall comply with the provisions of the preceding paragraph. The Patent Administration Department Under the State Council shall handle any international application for patent in accordance with the international treaty concerned to which China is party, this Law and the relevant regulations of the State Council. Article 21. The Patent Administration Department Under the State Council and its Patent Reexamination Board shall handle any patent application and patent-related request according to law and in conformity with the requirements for being objective, fair, correct and timely. Until the publication or announcement of the application for a patent, staff members of the Patent Administration Department Under the State Council and other persons involved have the duty to keep its contents secret. Chapter II: Requirements for Grant of Patent Right Article 22. Any invention or utility model for which patent right may be granted must possess novelty, inventiveness and practical app1icability. Novelty means that, before the date of filing, no identical invention or utility model has been publicly disclosed in publications in the country or abroad or has been publicly used or made known to the public by any other means in the country, nor has any other person filed previously with the Patent Administration Department Under the State Council an application which described the identical invention or utility mode1 and was published after the said date of filing. Inventiveness means that, as compared with the technology existing before the date of filing, the invention has prominent substantive features and represents a notable progress and that the utility model has substantive features and represents progress. Practical applicability means that the invention or utility model can be made or used and can produce effective results. Article 23. Any design for which patent right may be granted must not be identical with and simi1ar to any design which, before the date of filing, has been publicly disclosed in publications in the country or abroad or has been publicly used in the country, and must not be in conflict with any prior right of any other person. Article 24. An invention-creation for which a patent is applied for does not lose its novelty where, within six months before the date of filing, one of the following events occurred: (l) where it was first exhibited at an international exhibition sponsored or recognized by the Chinese Government; (2) where it was first made public at a prescribed academic or technological meeting; (3) where it was disc1osed by any person without the consent of the applicant. Article 25 For any of the following, no patent right shall be granted: (1) scientific discoveries; (2) rules and methods for mental activities; (3) methods for the diagnosis or for the treatment of diseases; (4) animal and plant varieties; (5) substances obtained by means of nuclear transformation. For processes used in producing products referred to in items (4) of the preceding paragraph, patent right may be granted in accordance with the provisions of this Law. Chapter III: Application for Patent Article 26. Where an application for a patent for invention or utility model is filed, a request, a description and its abstract, and claims shall be submitted. The request shall state the title of the invention or utility model, the name of the inventor or creator, the name and the address of the applicant and other related matters. The description shall set forth the invention or utility model in a manner sufficiently clear and complete so as to enable a person ski11ed in the re1evant field of techno1ogy to carry it out; where necessary, drawings are required. The abstract shall state briefly the main technical points of the invention or utility model. The claims shall be supported by the description and shall state the extent of the patent protection asked for. Article 27. Where an app1ication for a patent for design is filed, a request, drawings or photographs of the design shall be submitted, and the product incorporating the design and the class to which that product be1ongs shall be indicated. Article 28. The date on which the Patent Administration Department Under the State Council receives the app1ication shall be the date of filing. If the app1ication is sent by mai1, the date of mailing indicated by the postmark shall be the date of filing. Article 29. Where , within twelve months from the date on which any applicant first filed in a foreign country an application for a patent for invention or utility model, or within six months from the date on which any applicant first filed in a foreign country an application for a patent for design, he or it files in China an application for a patent for the same subject matter, he or it may, in accordance with any agreement concluded between the said foreign country and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of mutual recognition of the right of priority, enjoy a right of priority. Where, within twelve months from the date on which any applicant first filed in China an application for a patent for invention or utility model, he or it files with the Patent Administration Department Under the State Council an application for a patent for the same subject matter, he or it may enjoy a right of priority. Article 30. Any applicant who claims the right of priority shall make a written declaration when the application is filed, and submit, within three months, a copy of the patent application document which was first filed; if the applicant fails to make the written declaration or to meet the time limit for submitting the patent application document, the claim to the right of priority shall be deemed not to have been made. Article 3l. An application for a patent for invention or utility model shall be limited to one invention or uti1ity mode1. Two or more inventions or utility mode1s belonging to a single genera1 inventive concept may be filed as one application. An app1ication for a patent for design shall be limited to one design incorporated in one product. Two or more designs which are incorporated in products belonging to the same c1ass and are sold or used in sets may be filed as one application. Article 32. An applicant may withdraw his or its application for a patent at any time before the patent right is granted. Article 33. An applicant may amend his or its application for a patent, but the amendment to the application for a patent for invention or utility model may not go beyond the scope of the disclosure contained in the initial description and claims, and the amendment to the application for a patent for design may not go beyond the scope of the disclosure as shown in the initial drawings or photographs. Chapter IV: Examination and Approval of Application for Patent Article 34. Where, after receiving an application for a patent for invention, the Patent Administration Department Under the State Council, upon preliminary examination, finds the application to be in conformity with the requirements of this Law, it shall publish the application promptly after the expiration of eighteen months from the date of filing. Upon the request of the applicant, the Patent Administration Department Under the State Council publishes the application earlier. Article 35. Upon the request of the applicant for a patent for invention, made at any time within three years from the date of filing, the Patent Administration Department Under the State Council will proceed to examine the application as to its substance. If, without any justified reason, the applicant fails to meet the time limit for requesting examination as to substance, the application shall be deemed to have been withdrawn. The Patent Administration Department Under the State Council may, on its own initiative, proceed to examine any application for a patent for invention as to its substance when it deems it necessary. Article 36. When the applicant for a patent for invention requests examination as to substance, he or it shall furnish pre-filing date reference materials concerning the invention. For an application for a patent for invention that has been already filed in a foreign country, the Patent Administration Department Under the State Council may ask the app1icant to furnish within a specified time limit documents concerning any search made for the purpose of examining that application, or concerning the results of any examination made, in that country. If, at the expiration of the specified time limit, without any justified reason, the said documents are not furnished, the application shall be deemed to have been withdrawn. Article 37. Where the Patent Administration Department Under the State Council, after it has made the examination as to substance of the application for a patent for invention, finds that the application is not in conformity with the provisions of this Law, it shall notify the applicant and request him or it to submit, within a specified time limit, his or its observations or to amend the application. If, without any justified reason, the time limit for making response is not met, the application shall be deemed to have been withdrawn. Article 38. Where, after the applicant has made the observations or amendments, the Patent Administration Department Under the State Council finds that the application for a patent for invention is still not in conformity with the provisions of this Law, the application shall be rejected. Article 39. Where it is found after examination as to substance that there is no cause for rejection of the application for a patent for invention, the Patent Administration Department Under the State Council shall make a decision to grant the patent right for invention, issue the certificate of patent for invention, and register and announce it. The patent right for invention shall take effect as of the date of the announcement. Article 40. Where it is found after preliminary examination that there is no cause for rejection of the application for a patent for utility model or design, the Patent Administration Department Under the State Council shall make a decision to grant the patent right for utility model or the patent right for design, issue the relevant patent certificate, and register and announce it. The patent right for utility model or design shall take effect as of the date of the announcement. Article 41. The Patent Administration Department Under the State Council shall set up a Patent Reexamination Board. Where an applicant for patent is not satisfied with the decision of the said department rejecting the application, the applicant may, within three months from the date of receipt of the notification, request the Patent Reexamination Board to make a reexamination. The Patent Reexamination Board shall, after reexamination, make a decision and notify the applicant for patent. Where the applicant for patent is not satisfied with the decision of the Patent Reexamination Board, it or he may, within three months from the date of receipt of the notification, institute legal proceedings in the people��s court. Chapter V: Duration, Cessation and Invalidation of Patent Right Article 42. The duration of patent right for inventions shall be twenty years, the duration of patent right for utility models and patent right for designs shall be ten years, counted from the date of filing. Article 43. The patentee shall pay an annual fee beginning with the year in which the patent right was granted. Article 44. In any of the following cases, the patent right shall cease before the expiration of its duration: (1) where an annual fee is not paid as prescribed; (2) where the patentee abandons his or its patent right by a written declaration. Any cessation of the patent right shall be registered and announced by the Patent Administration Department Under the State Council. Article 45. Where, starting from the date of the announcement of the grant of the patent right by the Patent Administration Department Under the State Council, any entity or individual considers that the grant of the said patent right is not in conformity with the relevant provisions of this Law, it or he may request the Patent Reexamination Board to declare the patent right invalid. Article 46. The Patent Reexamination Board shall examine the request for invalidation of the patent right promptly, make a decision on it and notify the person who made the request and the patentee. The decision declaring the patent right invalid shall be registered and announced by the Patent Administration Department Under the State Council. Where the patentee or the person who made the request for invalidation is not satisfied with the decision of the Patent Reexamination Board declaring the patent right invalid or upholding the patent right, such party may, within three months from receipt of the notification of the decision, institute legal proceedings in the people's court. The people's court shall notify the person that is the opponent party of that party in the invalidation procedure to appear as a third party in the legal proceedings. Article 47. Any patent right which has been declared invalid shall be deemed to be non-existent from the beginning. The decision declaring the patent right invalid shall have no retroactive effect on any judgement or ruling of patent infringement which has been pronounced and enforced by the people��s court, on any decision concerning the handling of a dispute over patent infringement which has been complied with or compulsorily executed, or on any contract of patent license or of assignment of patent right which has been performed, prior to the declaration of the patent right invalid; however, the damage caused to other persons in bad faith on the part of the patentee shall be compensated. If, pursuant to the provisions of the preceding paragraph, the patentee or the assignor of the patent right makes no repayment to the licensee or the assignee of the patent right of the fee for the exploitation of the patent or of the price for the assignment of the patent right, which is obviously contrary to the principle of equity, the patentee or the assignor of the patent right shall repay the whole or part of the fee for the exploitation of the patent or of the price for the assignment of the patent right to the licensee or the assignee of the patent right. Chapter VI: Compulsory License for Exploitation of Patent Article 48. Where any entity which is qualified to exploit the invention or utility model has made requests for authorization from the patentee of an invention or utility model to exploit its or his patent on reasonable terms and conditions and such efforts have not been successful within a reasonable period of time, the Patent Administration Department Under the State Council may, upon the request of that entity, grant a compulsory license to exploit the patent for invention or utility model. Article 49. Where a national emergency or any extraordinary state of affairs occurs, or where the public interest so requires, the Patent Administration Department Under the State Council may grant a compulsory license to exploit the patent for invention or utility model. Article 50. Where the invention or utility model for which the patent right has been granted involves important technical advance of considerable economic significance in relation to another invention or utility model for which a patent right has been granted earlier and the exploitation of the later invention or utility model depends on the exploitation of the earlier invention or utility model, the Patent Administration Department Under the State Council may, upon the request of the later patentee, grant a compulsory license to exploit the earlier invention or utility model. Where, according to the preceding paragraph, a compulsory license is granted, the Patent Administration Department Under the State Council may, upon the request of the earlier patentee, also grant a compulsory license to exploit the later invention or utility model. Article 51. The entity or individual requesting, in accordance with the provisions of this Law, a compulsory license for exploitation shall furnish proof that it or he has not been able to conclude with the patentee a license contract for exploitation on reasonable terms and conditions. Article 52. The decision made by the Patent Administration Department Under the State Council granting a compulsory license for exploitation shall be notified promptly to the patentee concerned, and shall be registered and announced. In the decision granting the compulsory license for exploitation, the scope and duration of the exploitation shall be specified on the basis of the reasons justifying the grant. If and when the circumstances which led to such compulsory license cease to exist and are unlikely to recur, the Patent Administration Department Under the State Council may, after review upon the request of the patentee, terminate the compulsory license. Article 53. Any entity or individual that is granted a compulsory license for exploitation shall not have an exclusive right to exploit and shall not have the right to authorize exploitation by any others. Article 54. The entity or individual that is granted a compulsory license for exploitation shall pay to the patentee a reasonable exploitation fee, the amount of which shall be fixed by both parties in consultations. Where the parties fail to reach an agreement, the Patent Administration Department Under the State Council shall adjudicate. Article 55. Where the patentee is not satisfied with the decision of the Patent Administration Department Under the State Council granting a compulsory license for exploitation, or where the patentee or the entity or individual that is granted the compulsory license for exploitation is not satisfied with the ruling made by the Patent Administration Department Under the State Council regarding the fee payable for exploitation, it or he may, within three months from the receipt of the date of notification, institute legal proceedings in the people's court. Chapter VII: Protection of Patent Right Article 56. The extent of protection of the patent right for invention or utility model shall be determined by the terms of the claims. The description and the appended drawings may be used to interpret the claims. The extent of protection of the patent right for design shall be determined by the product incorporating the patented design as shown in the drawings or photographs. Article 57. Where a dispute arises as a result of the exploitation of a patent without the authorization of the patentee, that is, the infringement of the patent right of the patentee, it shall be settled through consultation by the parties. Where the parties are not willing to consult with each other or where the consultation fails, the patentee or any interested party may institute 1egal proceedings in the people's court, or request the administrative authority for patent affairs to hand1e the matter. When the administrative authority for patent affairs handling the matter considers that the infringement is established, it may order the infringer to stop the infringing act immediately. If the infringer is not satisfied with the order, he may, within 15 days from the date of receipt of the notification of the order, institutes legal proceedings in the people's court in accordance with the Administrative Procedure Law of the People's Republic of China. If, within the said time limit, such proceedings are not instituted and the order is not complied with, the administrative authority for patent affairs may approach the peop1e's court for compulsory execution. The said authority handling the matter may, upon the request of the parties, mediate in the amount of compensation for the damage caused by the infringement of the patent right. If the mediation fails, the parties may institute legal proceedings in the people's court in accordance with the Civil Procedure Law of the People's Republic of China. When any infringement dispute relates to a patent for invention for a process for the manufacture of a new product, any entity or individual manufacturing the identical product shall furnish proof to show that the process used in the manufacture of its or his product is different from the patented process. Where the infringement relates to a patent for utility model, the people's court or the administrative authority for patent affairs may ask the patentee to furnish a search report made by the Patent Administration Department Under the State Council. Article 58. Where any person passes off the patent of another person as his own, he shall, in addition to bearing his civil liability according to law, be ordered by the administrative authority for patent affairs to amend his act, and the order shall be announced. His illegal earnings shall be confiscated and, in addition, he may be imposed a fine of not more than three times his illegal earnings and, if there is no illegal earnings, a fine of not more than RMB 50 000 yuan. Where the infringement constitutes a crime, he shall be prosecuted for his criminal liability. Article 59. Where any person passes any non-patented product off as patented product or passes any non-patented process off as patented process, he shall be ordered by the administrative authority for patent affairs to amend his act, and the order shall be announced, and he may be imposed a fine of not no more than RMB 50 000 yuan. Article 60. The amount of compensation for the damage caused by the infringement of the patent right shall be assessed on the basis of the losses suffered by the patentee or the profits which the infringer has earned through the infringement. If it is difficult to determine the losses which the patentee has suffered or the profits which the infringer has earned, the amount may be assessed by reference to the appropriate multiple of the amount of the exploitation fee of that patent under contractual license. Article 61. Where any patentee or interested party has evidence to prove that another person is infringing or will soon infringe its or his patent right and that if such infringing act is not checked or prevented from occurring in time, it is likely to cause irreparable harm to it or him, it or he may, before any legal proceedings are instituted, request the people��s court to adopt measures for ordering the suspension of relevant acts and the preservation of property. The people's court, when dealing with the request mentioned in the preceding paragraph, shall apply the provisions of Article 93 through Article 96 and of Article 99 of the Civil Procedure Law of the People's Republic of China. Article 62. Prescription for instituting legal proceedings concerning the infringement of patent right is two years counted from the date on which the patentee or any interested party obtains or should have obtained knowledge of the infringing act. Where no appropriate fee for exploitation of the invention, subject of an application for patent for invention, is paid during the period from the publication of the application to the grant of patent right, prescription for instituting legal proceedings by the patentee to demand the said fee is two years counted from the date on which the patentee obtains or should have obtained knowledge of the exploitation of his invention by another person. However, where the patentee has already obtained or should have obtained knowledge before the date of the grant of the patent right, the prescription shall be counted from the date of the grant. Article 63. None of the following shall be deemed an infringement of the patent right: (l) Where, after the sale of a patented product that was made or imported by the patentee or with the authorization of the patentee, or of a product that was directly obtained by using the patented process, any other person uses, offers to sell or sells that product; (2) Where, before the date of filing of the application for patent, any person who has already made the identical product, used the identical process, or made necessary preparations for its making or using, continues to make or use it within the original scope only; (3) Where any foreign means of transport which temporarily passes through the territory, territorial waters or territorial airspace of China uses the patent concerned, in accordance with any agreement concluded between the country to which the foreign means of transport belongs and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of reciprocity, for its own needs, in its devices and installations; (4) Where any person uses the patent concerned solely for the purposes of scientific research and experimentation. Any person who, for production and business purposes, uses or sells a patented product or a product that was directly obtained by using a patented process, without knowing that it was made and sold without the authorization of the patentee, shall not be liable to compensate for the damage of the patentee if he can prove that he obtains the product from a legitimate source. Article 64. Where any person, in violation of the provisions of Article 20 of this Law, files in a foreign country an application for a patent that divulges an important secret of the State, he shall be subject to disciplinary sanction by the entity to which he belongs or by the competent authority concerned at the higher level. Where a crime is established, the person concerned shall be prosecuted for his criminal liability according to the law. Article 65. Where any person usurps the right of an inventor or creator to apply for a patent for a non-service invention-creation, or usurps any other right or interest of an inventor or creator, prescribed by this Law, he shall be subject to disciplinary sanction by the entity to which he belongs or by the competent authority at the higher level. Article 66. The administrative authority for patent affairs may not take part in recommending any patented product for sale to the public or any such commercial activities. Where the administrative authority for patent affairs violates the provisions of the preceding paragraph, it shall be ordered by the authority at the next higher level or the supervisory authority to correct its mistakes and eliminate the bad effects. The illegal earnings, if any, shall be confiscated. Where the circumstances are serious, the persons who are directly in charge and the other persons who are directly responsible shall be given disciplinary sanction in accordance with law. Article 67. Where any State functionary working for patent administration or any other State functionary concerned neglects his duty, abuses his power, or engages in malpractice for personal gain, which constitutes a crime, shall be prosecuted for his criminal liability in accordance with law. If the case is not serious enough to constitute a crime, he shall be given disciplinary sanction in accordance with law. Chapter VIII: Supplementary Provisions Article 68. Any application for a patent filed with, and any other proceedings before, the Patent Administration Department Under the State Council shall be subject to the payment of a fee as prescribed. Article 69. This Law shall enter into force on April l, 1985.

Copyright

Copyright Law of the People's Republic of China
Copyright Law of the People's Republic of China (Adopted at the Fifteenth Session of the Standing Committee of the Seventh National People's Congress on 7 September 1990, and revised in accordance with the Decision on the Amendment of the Copyright Law of the People's Republic of China adopted at the 24th Session of the Standing Committee of the Ninth National People's Congress on 27 October 2001.) Chapter I General Provisions Article 1 This Law is enacted, in accordance with the Constitution, for the purposes of protecting the copyright of authors in their literary, artistic and scientific works and the copyright-related rights and interests, of encouraging the creation and dissemination of works which would contribute to the construction of socialist spiritual and material civilization, and of promoting the development and prosperity of the socialist culture and science. Article 2 Works of Chinese citizens, legal entities or other organizations, whether published or not, shall enjoy copyright in accordance with this Law. Any work of a foreigner or stateless person which is eligible to enjoy copyright under an agreement concluded between the country to which the foreigner belongs or in which he has habitual residence and China, or under an internationa1 treaty to which both countries are party, shall be protected in accordance with this Law. Works of foreigners or stateless persons first published in the territory of the People's Republic of China shall enjoy copyright in accordance with this Law. Any work of a foreigner who belongs to a country which has not concluded an agreement with China, or which is not a party to an international treaty with China or a stateless person first published in an country which is a party to an international treaty with China, or in such a member state or nonmember state, shall be protected in accordance with this Law. Article 3 For the purposes of this Law, the term "works" includes works of literature, art, natural science, social science, engineering technology and the like which are expressed in the following forms: (1) written works; (2) oral works; (3) musical, dramatic, quyi', choreographic and acrobatic works; (4) works of fine art and architecture; (5) photographic works; (6) cinematographic works and works created by virtue of an analogous method of film production; (7) drawings of engineering designs, and product designs; maps, sketches and other graphic works and model works; (8) computer software; (9) other works as provided for in laws and administrative regulations. Article 4 Works the publication or distribution of which is prohibited by law shall not be protected by this Law. Copyright owners, in exercising their copyright, shall not violate the Constitution or laws or prejudice the public interests. Article 5 This Law shal1 not be applicable to: (l) laws; regulations; resolutions, decisions and orders of State organs; other documents of a legislative, administrative or judicial nature; and their official translations; (2) news on current affairs; and (3) calendars, numerical tables and forms of general use, and formulas. Article 6 Regulations for the protection of copyright in expressions of folklore shall be established separately by the State Council. Article 7 The copyright administration department under the State Council shall be responsible for the nationwide administration of copyright. The copyright administration department of the People's Government of each province, autonomous region and municipality directly under the Central Government shall be responsible for the administration of copyright in its administrative region. Article 8 The copyright owners and copyright-related right holders may authorize an organization for collective administration of copyright to exercise the copyright or any copyright-related right. After authorization, the organization for collective administration of copyright may, in its own name, claim the right for the copyright owners and copyright-related right holders, and participate, as an interested party, in litigation or arbitration relating to the copyright or copyright-related right. The organization for collective administration of copyright is a non-profit organization. Provisions for the mode of its establishment, rights and obligations, collection and distribution of the royalties of copyright licensing, and supervision and administration thereof shall be separately established by the State Council. Chapter II Copyright Section 1 Copyright Owners and Their Right Article 9 The term "copyright owners" shall include: (1) authors; (2) other citizens, legal entities and other organizations enjoying copyright in accordance with this Law. Article 10 The term "copyright" shall include the following personality rights and property rights: (l) the right of publication, that is, the right to decide whether to make a work available to the public; (2) the right of authorship, that is, the right to claim authorship and to have the author's name mentioned in connection with the work; (3) the right of alteration, that is, the right to alter or authorize others to alter one's work; (4) the right of integrity, that is, the right to protect one's work against distortion and mutilation; (5) the right of reproduction, that is, the right to produce one or more copies of a work by printing, photocopying, lithographing, making a sound recording or video recording, duplicating a recording, or duplicating a photographic work or by any other means; (6) the right of distribution, that is, the right to make available to the public the original or reproductions of a work though sale or other transfer of ownership; (7) the right of rental, that is, the right to authorize, with payment, others to temporarily use cinematographic works, works created by virtue of an analogous method of film production, and computer software, except any computer software that is not the main subject matter of rental; (8) the right of exhibition, that is, the right to publicly display the original or reproduction of a work of fine art and photography; (9) the right of performance, that is, the right to publicly perform a work and publicly broadcast the performance of a work by various means; (10) the right of showing, that is, the right to show to the public a work, of fine art, photography, cinematography and any work created by analogous methods of film production through film projectors, over-head projectors or any other technical devices; (11) the right of broadcast, that is, the right to publicly broadcast or communicate to the public a work by wireless means, to communicate to the public a broadcast work by wire or relay means, and to communicate to the public a broadcast work by a loudspeaker or by any other analogous tool used to transmit symbols, sounds or pictures; (12) the right of communication of information on networks, that is, the right to communicate to the public a work, by wire or wireless means in such a way that members of the public may access these works from a place and at a time individually chosen by them; (13) the right of making cinematographic work, that is, the right to fixate a work on a carrier by way of film production or by virtue of an analogous method of film production; (14) the right of adaptation, that is, the right to change a work to create a new work of originality; (15) the right of translation, that is, the right to translate a work in one language into one in another language; (16) the right of compilation, that is, the right to compile works or parts of works into a new work by reason of the selection or arrangement; and (17) any other rights a copyright owner is entitled to enjoy. A copyright owner may authorize another person to exercise the rights under the preceding paragraphs (5) to (17), and receive remuneration pursuant to an agreement or this Law. A copyright owner may assign, in part or in whole, the rights under the preceding paragraphs (5) to (17), and receive remuneration pursuant to an agreement or this Law. Section 2 Ownership of Copyright Article 11 Except where otherwise provided in this Law, the copyright in a work shall belong to its author. The author of a work is the citizen who has created the Work. Where a work is created according to the intention and under the supervision and responsibility of a legal entity or other organization, such legal entity or organization shall be deemed to be the author of the work. The citizen, legal entity or other organization whose name is mentioned in connection with a work shall, in the absence of proof to the contrary, be deemed to be the author of the work. Article 12 Where a work is created by adaptation, translation, annotation or arrangement of a preexisting work, the copyright in the work thus created shall be enjoyed by the adapter, translator, annotator or arranger, Provided that the exercise of such copyright shall not prejudice the copyright in the original work. Article 13 Where a work is created jointly by two or more co-authors, the copyright in the work shall be enjoyed jointly by those co-authors. Co-authorship may not be claimed by anyone who has not participated in the creation of the work. If a work of joint authorship can be separated into independent parts and exploited separately, each co-author shall be entitled to independent copyright in the parts that he has created, provided that the exercise of such copyright shall not prejudice the copyright in the joint work as a whole. Article 14 A work created by compilation of several works, parts of works, data that do not constitute a work or other materials and having originality in the selection or arrangement of its contents is a work of compilation. The copyright in a work of compilation shall be enjoyed by the compiler, provided that the exercise of such copyright shall not prejudice the copyright in the preexisting works. Article 15 The copyright in a cinematographic work and any work created by an analogous method of fl1m production shall be enjoyed by the producer of the work, but the scriptwriter, director, cameraman, lyricist, composer, and other authors thereof shall enjoy the right of authorship in the work, and have the right to receive remuneration pursuant to the contract concluded with the producer. The authors of the screenplay, musical works and other works that are incorporated in a cinematographic work and work created by virtue of an analogous method of film production and can be exploited separately shall be entitled to exercise their copyright independently. Article 16 A work created by a citizen in the fulfillment of tasks assigned to him by a legal entity or other organization shall be deemed to be a work created in the course of employment. The copyright in such work shall be enjoyed by the author, subject to the provisions of the second paragraph of this Article, provided that the legal entity or other organization shall have a priority right to exploit the work within the scope of its professional activities. During the two years after the completion of the work, the author shall not, without the consent of the legal entity or other organization, authorize a third party to exploit the work in the same way as the legal entity or other organization does. In any of the following cases the author of a work created in the course of employment shall enjoy the right of authorship, while the legal entity or other organization shall enjoy the other rights included in the copyright and may reward the author: (1) drawings of engineering designs and product designs and maps, computer software and other works created in the course of employment mainly with the material and technical resource of the legal entity or other organization and under its responsibility; (2) works created in the course of employment where the copyright is, in accordance with laws, administrative regulations or contracts, enjoyed by the legal entity or other organization. Article 17 The ownership of the copyright in a commissioned work shall be agreed upon in a contract between the commissioning and the commissioned parties. In the absence of a contract or of an explicit agreement in the contract, the copyright in such a work shall belong to the commissioned party. Article 18 The transfer of ownership of the original copy of a work of fine art, or other works, shall not be deemed to include the transfer of the copyright in such work, provided that the right to exhibit the original copy of a work of fine art shall be enjoyed by the owner of such original copy. Article 19 Where the copyright in a work belongs to a citizen, the right of exploitation and the rights under Article 10, paragraphs (5) to (17), of this Law in respect of the work shall, after his death, during the term of protection provided for in this Law, be transferred in accordance with the provisions of the Inheritance Law. Where the copyright in a work belongs to a legal entity or other organization, the rights under Articles l0, paragraphs (5) to (l7), of this Law, shall, after the change or the termination of the status of the legal entity or other organization, during the term of protection provided for in this Law, be enjoyed by the succeeding legal entity or other organization which has taken over the former's rights and obligations, or, in the absence of such successor entity or other organization, by the State. Section 3 Term of Protection for Rights Article 20 The rights of authorship, alteration and integrity of an author shall be unlimited in time. Article 21 The term of protection for the right of publication and the rights referred to in Article l0, paragraphs (5) to (17), of this Law in respect of a work of a citizen shall be the lifetime of the author and fifty years after his death, and expires on 31 December of the fiftieth year after the death of the author. In the case of a work of joint authorship, such term shall expire on 31 December of the fiftieth year after the death of the last surviving author. The term of protection for the right of publication and the rights provided for in Article 10, paragraphs (5) to (17), of this Law in respect of a work where the copyright belongs to a legal entity or other organization or in respect of a work created in the course of employment where the legal entity or other organization enjoys the copyright (except the right of authorship), shall be fifty years, and expires on 31 December of the fiftieth year after the first Publication of such work, provided that any such work that has not been published within t1tty years after the completion of its creation shall no longer be protected under this Law. The term of protection for the right of publication or protection for the right of publication or the rights referred to in Article l0, paragraphs (5) to (17), of this Law in respect of a cinematographic work, a work created by virtue of an analogous method of film production or a photographic work shall be fifty years, and expires on 3l December of the fiftieth year after the first publication of such work, provided that any such work that has not been published within fifty years after the completion of its creation shall no longer be protected under this Law. Section 4 Limitations on Rights Article 22 In the following cases, a work may be exploited without permission from, and without payment of remuneration to, the copyright owner, provided that the name of the author and the title of the work shall be mentioned and the other rights enjoyed by the copyright owner by virtue of this Law shall not be prejudiced: (l) use of a published work for the purposes of the user's own private study, research or self-entertainment; (2) appropriate quotation from a published work in one's own work for the purposes of introduction to, or comments on, a work, or demonstration of a point; (3) reuse or citation, for any unavoidable reason, of a published work in newspapers, periodicals, at radio stations, television stations or any other media for the purpose of reporting current events; (4) reprinting by newspapers or periodicals, or rebroadcasting by radio stations, television stations, or any other media, of articles on current issues relating to politics, economics or religion published by other newspapers, periodicals, or broadcast by other radio stations, television stations or any other media except where the author has declared that the reprinting and rebroadcasting is not permitted; (5) publication in newspapers or periodicals, or broadcasting by radio stations, television stations or any other media, of a speech delivered at a public gathering, except where the author has declared that the publication or broadcasting is not permitted; (6) translation, or reproduction in a small quantity of copies, of a published work for use by teachers or scientific researchers, in classroom teaching or scientific research, provided that the translation or reproduction shall not be published or distributed; (7) use of a published work, within proper scope, by a State organ for the purpose of fulfilling its official duties; (8) reproduction of a work in its collections by a library, archive, memorial hall, museum, art gallery or any similar institution, for the purposes of the display, or preservation of a copy, of the work; (9) free-of-charge live performance of a published work and said performance neither collects any fees from the members of the public nor pays remuneration to the performers; (10) copying, drawing, photographing or video recording of an artistic work located or on display in an outdoor public place; (11) translation of a published work of a Chinese citizen, legal entity or any other organization from the Han language into any minority nationality language for publication and distribution within the country; and (12) transliteration of a published work into Braille and publication of the work so transliterated. The above limitations on rights shall be applicable also to the rights of publishers, performers, producers of sound recordings and video recordings, radio stations and television stations. Article 23 In compiling and publishing textbooks for implementing the nine-year compulsory education and the national educational program, parts of published works, short written works, music works or single copies of works of painting or photographic works may be compiled into textbooks without the authorization from the authors, except where the authors have declared in advance the use thereof is not permitted, with remuneration paid according to the regulations, the name of the author and the title of the work indicated and without prejudice to other rights enjoyed by the copyright owners according to this Law. The above limitations on rights shall be applicable also to the rights of publishers, performers, producers of sound recordings and video recordings, radio stations and television stations. Chapter III Copyright Licensing and Assignment Contracts Article 24 Subject to provisions in this Law according to which no permission is needed, anyone who exploits a work created by others shall conclude a contract with, or otherwise obtain permission from, the copyright owner. A licensing contract shall include the following basic clauses: (l) the category of right licensed for exploitation of the work covered by the license; (2) the exclusive or non-exclusive nature of the right to exploit the work covered by the license; (3) the geographic area and term of the license; (4) the standard of remuneration and the method of payment;' (5) the liability in case of breach of the contract; and (6) any other matter that the contracting parties consider necessary. Article 25 Assignment of a right referred to in Article 10, paragraphs (5) to (17), of this Law shall require conclusion of a contract in writing. A contract of assignment shall include the following basic clauses: (1) title of the work; (2) category and geographic area of the assigned right; (3) assignment price; (4) date and manner of payment of the assignment price; (5) liabilities for breach of the contract; and (6) any other matters that the contracting parties consider necessary. Article 26 The other party shall not, without permission from the copyright owner, exercise any right that the copyright owner has not expressly licensed or assigned in the licensing and assignment contract. Article 27 The standard of remuneration for the exploitation of a work may be fixed by the interested parties or may be paid according to the standard established by the copyright administration department under the State Council in collaboration with other departments concerned. Where the interested parties have not expressly fixed it, remuneration may also be paid in accordance with the standard established by the copyright administration department under the State Council in collaboration with other departments concerned. Article 28 Publishers, performers, producers of sound recordings and video recordings, radio stations, television stations and other entities who or which have obtained, pursuant to the relevant provisions of this Law, the right to exploit the copyright of others, shall not prejudice the authors' rights of authorship, alteration or integrity, or their right to remuneration. Chapter IV Publication, Performance, Sound Recording, Video Recording and Broadcasting Section 1 Publication of Books, Newspapers and Periodicals Article 29 A book publisher who publishes a book shall conclude a publishing contract with, and pay remuneration to, the copyright owner. Article 30 A book publisher shall have the exclusive right to publish the work delivered to him by the copyright owner for publication. The exclusive right to publish a work enjoyed by the book publisher specified in the contract shall be protected by law, and the work may not be published by others. Article 31 The copyright owner shall deliver the work within the term specified in the contract. The book publisher shall publish the work in accordance with the quality requirements and within the term specified in the contract. The book publisher shall bear the civil liability specified in Article 53 of this Law if he fails to publish the work within the term specified in the contract. The book publisher shall notify, and pay remuneration to, the copyright owner when the work is to be reprinted or republished. If the publisher refuses to reprint or republish the work when stocks of the book are exhausted, the copyright owner shall have the right to terminate the contrast. Article 32 Where a copyright owner has submitted the manuscript of his work to a newspaper or a periodical publisher for publication and has not received, within 15 days from the newspaper publisher or within 30 days from the periodical publisher, counted from the date of submission of the manuscript, any notification of the said publisher's decision to publish the work, the copyright owner may submit the manuscript of the same work to another newspaper or periodical publisher for publication, unless the two parties have agreed otherwise. Except where the copyright owner has declared that reprinting or excerpting is not permitted, other newspaper or periodical publishers may, after the publication of the work by a newspaper or periodical, reprint the work or print an abstract of it or print it as reference material, but such other publishers shall pay remuneration to the copyright owner as prescribed in regulations. Article 33 A book publisher may alter or abridge a work with the permission of the copyright owner. A newspaper or periodical publisher may make editorial modifications and abridgements in a work, but shall not make modifications in the contents of the work unless permission has been obtained from the author. Article 34 When publishing works created by adaptation, translation, annotation, arrangement or compilation of preexisting works, the publisher shall both have the permission from, and pay remuneration to, the owners of the copyright in the works created by means of adaptation, translation, annotation, arrangement or compilation and the owners of the copyright in the original works. Article 35 A publisher has the right to license or prohibit any other person to use the typographical arrangement of books or periodicals he has published. The term of protection for the right provided for in the preceding paragraph shall be ten years, and expires on 3l December of the tenth year after the first publication of the books or periodicals using the typographical arrangement. Section 2 Performance Article 36 A performer (an individual performer or a performing entity) who for a performance exploits a work created by another person shall obtain permission from, and pay remuneration to, the copyright owner. Where a performing organizer organizes a performance, the Organizer shall obtain permission from, and pay remuneration to, the copyright owner. When exploiting, for performance, works created by adaptation, translation, annotation, arrangement or compilation of preexisting works, the performer shall both have the permission from, and pay remuneration to, the owners of the copyright in the works created by means of adaptation, translation, annotation, arrangement or compilation and the owners of the copyright in the original works. Article 37 A performer shall, in relation to his performance, enjoy the right (l) to claim performer ship; (2) to protect the image inherent in his performance from distortion; (3) to authorize others to make live broadcasts and public transmission of its or his performance and to receive remuneration; (4) to authorize others to make sound recordings and video recordings, and to receive remuneration therefore. (5) to authorize others to reproduce or distribute sound recordings and video recordings incorporating his performance, and to receive remuneration therefore; and (6) to authorize others to communicate his performance to the public on information network, and to receive remuneration therefore. The person so authorized who exploits the work in the way referred to in the preceding paragraphs (3) to (6) shall obtain permission from, and pay remuneration to, the copyright owner. Article 38 The term of protection for the rights provided for in Article 37, paragraphs (1) and (2), of this Law shall not be subject to any limitation. The term of protection for the rights provided for in Article 37, paragraphs (3) to (6), of this Law shall be fifty years, and expires on 31 December of the fiftieth year after the performance was made. Section 3 Sound Recordings and Video Recordings Article 39 A producer of sound recordings or video recording who, for the production of a sound recording or video recording, exploits a work created by another person, shall obtain permission from, and pay remuneration to, the copyright owner. A producer of sound recordings or video recordings who exploits a work created by adaptation, translation, annotation or arrangement of a preexisting work shall both obtain permission from, and pay remuneration to the owner of the copyright in the work created by adaptation, translation, annotation or arrangement and to the owner of the copyright in the original work. A producer of sound recordings who exploits a music work another person has duly made into a sound recording to produce sound recordings, may not obtain permission from, but shall pay remuneration to the copyright owner as prescribed by regulat1ons, such Work shall not be exploited where the copyright owner has declared that such exploitation is not permitted. Article 40 When producing a sound recording or video recording, the producer shall conclude a contract with, and pay remuneration to, the performers. Article 41 A producer of sound recordings or video recordings shall have the right to authorize others to reproduce, distribute, rent and communicate to the public on an information network such sound recordings or video recordings and the right to obtain remuneration therefore. The term of protection of such rights shall be fifty years, and expires on 3l December of the fiftieth year after the recording was first produced. Any one who is authorized to reproduce, distribute and communicate to the public on an information network a sound recording or video recording shall also obtain permission from, and pay remuneration to, the copyright owner and the performer as presented by regulations. Section 4 Broadcasting by Radio Stations or Television Stations Article 42 A radio station or television station that broadcasts an unpublished work created by another person, shall obtain permission from, and pay remuneration to, the copyright owner. A radio station or television station that broadcasts a published work created by another person does not need a permission from, but shall pay remuneration to, the copyright owner. Article 43 A radio station or television station that broadcasts a published sound recording, does not need a permission from, but shall pay remuneration to, the copyright owner, except that the interested parties have agreed otherwise. The specific procedures for treating the matter shall be established by the State Council. Article 44 A radio station or television station shall have the right to prohibit the following acts without authorization therefrom: (1) to rebroadcast its broadcast radio or television program; and (2) to fix its broadcast radio or television program on a sound recording or video recording carrier and to reproduce the sound recording or video recording carrier. The term of protection for the right referred to in the preceding paragraph shall be fifty years, and expires on 31 December of the fiftieth year after the radio or television program was first broadcast. Article 45 A television station that broadcasts a cinematographic work, a work created by virtue of an analogous method of film production or a video graphic work produced by another person shall obtain permission from, and pay remuneration to, the producer of the cinematographic or video graphic work; the station that broadcasts a video graphic work produced by another person shall obtain permission of, and pay remuneration to, the copyright owner. Chapter V Legal Liabilities and Enforcement Measures Article 46 Anyone who commits any of the following acts of infringement shall bear civil liability for such remedies as ceasing the infringing act, eliminating the effects of the act, making an apology or paying compensation for damages, depending on the circumstances: (1) publishing a work without the permission of the copyright owner; (2) publishing a work of joint authorship as a work created solely by oneself, without the permission of the other co-authors; (3) having one's name mentioned in connection with a work created by another, in order to seek personal fame and gain, where one has not taken part in the creation of the work; (4) distorting or mutilating a work created by another; (5) plagiarizing a work of another person; (6) exploiting by exhibition, film production or any analogous method of film production, or by adaptation, translation, annotation, or by other means, without the permission of the copyright owner, unless otherwise provided in this Law; (7) exploiting a work created by another person without paying remuneration as prescribed by regulations; (8) rending a work, sound recording or video recording, without the permission of the copyright owner of a cinematographic work, a work created by virtue of an analogous method of film production, computer software, sound recording or video recording or the owner of a copyright-related right unless otherwise provided in this Law. (9) exploiting the typographic arrangement of a book or periodical without the permission of the publisher. (10) broadcasting live a performance or communicating the live performance to the public, or recording his performance without the permission of the performer; or (11) committing any other act of infringement of copyright and of other rights and interests relating to copyright. Article 47 Anyone who commits any of the following acts of infringement shall bear civil liability for such remedies as ceasing the infringing act, eliminating the effects of the act, making an apology or paying damages, depending on the circumstances' and may, in addition, be subjected by a copyright administration department to such administrative penalties as ceasing the infringing act, confiscating unlawful income from the act, confiscating and destroying infringing reproductions and imposing a fine; where the circumstances are serious, the copyright administration department may also confiscate the materials, tools, and equipment mainly used for making the infringing reproductions; and if the act constitutes a crime, the infringer shall be prosecuted for his criminal liability: (1) reproducing, distributing, performing, showing, broadcasting, compiling or communicating to the public on an information network a work created by another person, without the permission of the copyright owner, unless otherwise provided in this Law; (2) publishing a book where the exclusive right of publication belongs to another person; (3) reproducing and distributing a sound recording or video recording of a performance, or communicating to the public his performance on an information network without the permission of the performer, unless otherwise provided in the Law; (4) reproducing and distributing or communicating to the public on an information network a sound recording or video recording produced by another person, without the permission of the producer, unless otherwise provided in the Law; (5) broadcasting and reproducing a radio or television program produced by a radio station or television station without the permission of the radio station or television station, unless otherwise provided in this Law; (6) intentionally circumventing or destroying the technological measures taken by a right holder for protecting the copyright or copyright-related rights in his work, sound recording or video recording, without the permission of the copyright owner, or the owner of the copyright-related rights, unless otherwise provided in law or in administrative regulations; (7) intentionally deleting or altering the electronic right management information of a work, sound recording or video recording, without the permission of the copyright owner or the owner of a copyright-related right, unless otherwise provided in law or in administrative regulations; or (8) producing or selling a work where the signature of another is counterfeited. Article 48 Where a copyright or a copyright-re1ated right is infringed, the infringer shall compensate for the actually injury suffered by the right holder; where the actual injury is difficult to compute, the damages shall be paid on the basis of the unlawful income of the infringer. The amount of damages shall also include the appropriate fees paid by the right holder to stop the infringing act. Where the right holder's actual injury or infringer's Unlawful income cannot be determined, the People's Court shall Judge the damages not exceeding RMB 500, 00 depending on the circumstances of the infringing act. Article 49 A copyright owner or owner of a copyright-related right who has evidence to establish that another person is committing or will commit an act of infringing his right, which could cause irreparable injury to his legitimate rights and interests if the act is not stopped immediately, may apply to the People's Court for ordering cessation of the related act and for taking the measures for property preservation before instituting legal proceedings. The provisions of Articles 93 to 96 and 99 of the Civil Procedure Law of the People's Republic of China shall apply when the People's Court handles the application referred to in the preceding paragraph. Article 50 For the purpose of preventing an infringing act and under the circumstance where the evidence could be lost or is difficult to obtain at1erwards, the copyright owner or the owner of a copyright-related right may apply to the People's Court for evidence preservation before initiating legal proceedings. The People's Court must make the decision within forty-eight hours after it accepts an application; the measures of preservation shall be taken without delay if it is decided to do so. The People's Court may order the applicant to provide a guaranty, if the latter fails to do so, the Court shall reject the application. Where the applicant fails to institute legal proceedings within fifteen days after the People's Court adopted the measures of preservation, the latter shall terminate the measures of preservation. Article 51 The People's Court hearing a case may confiscate the unlawful income, infringing reproductions and materials used for committing the illegal act of infringement of copyright or copyright-related rights. Article 52 The publisher or producer of a reproduction who cannot prove that his publication or production has been authorized, the distributor of a reproduction or the renter of the reproduction of a cinematographic work, a work created by virtue of an analogous method of film production, computer software, sound recording or video recording who cannot prove that his distributed or rented reproduction has been from a lawful source, shall bear legal liability. Article 53 A party who fails to fulfill his contractual obligations, or executes them in a manner that is not in conformity with the agreed conditions of the contract, shall bear civil liability in accordance with the relevant provisions of the General Principles of the Civil Law of the People's Republic of China, the Contract Law of the People's Republic of China and other relevant laws and regulations. Article 54 A dispute over copyright may be settle by mediation. lt may also be submitted for arbitration to a copyright arbitration body under a written arbitration agreement concluded between the parties or under the arbitration clause in the contract. Any party may institute proceedings directly in the People's Court in the absence of a written arbitration agreement or in the absence of an arbitration clause in the contract. Article 55 Any party who is not satisfied with an administrative penalty may institute proceedings in the People's Court within three months from the date of receipt of the written decision on the penalty. If a party neither institutes legal proceedings nor implements the decision within the time limit, the copyright administration department concerned may apply to the People's Court for enforcement. Chapter Vl Supplementary Provisions Article 56 For the purposes of this Law, the terms "zhuzuoquan"2 is "banquan"2. Article 57 "publication" referred to in Article 2 of this Law means the reproduction and distribution of a work. Article 58 Regulations for the protection of computer software and the right of communication of information on network shall be established separately by the State Council. Article 59 The rights of copyright owners, publishers, performers, producers of sound recordings and video recordings, radio stations and television' stations as provided for in this Law, of which the term of protection specified in this Law has not yet expired on the date of this Law's entry into force, shall be protected in accordance with this Law. Any infringements of copyright and the copyright-related rights or breaches of contract committed prior to the entry into force of this Law shall be dealt with under the relevant regulations or policies in force at the time when the act was committed. Article 60 This Law shall enter into force on June 1, l99l. ---------------------------------- 1 Quyi refers to such traditional art forms as ballad singing, story telling, comic dialogues, clapper talks and cross talks. 2 Zhuzuoquan corresponds to "author's right", but literally translated as "right in a work"; "banquan" is the literal translation of "copyright".
Implementing Regulations of the Copyright Law of the People's Republic of China
Implementing Regulations of the Copyright Law of the People's Republic of China Promulgator: the State Council Promulgation Date: 2002-08-02 Status: Valid Effective Date: 2002-09-15 (Promulgated on 2 August 2002 and entering into force on 15 September 2002) Article 1. These Implementing Regulations (hereinafter referred to as these Regulations) are formulated pursuant to the Copyright Law of the People's Republic of China (hereinafter referred to as the Copyright Law). Article 2. The term "works" used in the Copyright Law shall mean original intellectual creations in the literary, artistic and scientific domain, insofar as they are capable of being reproduced in a certain tangible form. Article 3. The term "creation" mentioned in the Copyright Law shall mean intellectual activities from which literary, artistic and scientific works are directly derived. The provision of administrative support, consultations, material means or other supporting services for others in their creative activities shall not be deemed as acts of creation. Article 4. The works as mentioned in the Copyright Law and these Regulations shall mean the following: (1) written works are works expressed in written form, such as novels, poems, essays and theses; (2) oral works are works which are created in spoken words, such as impromptu speeches, lectures and court debates; (3) musical works are such works as songs and symphonic works, with or without accompanying words, which can be sung or performed; (4) dramatic works are such works as dramas, operas and local art forms which are used for stage performance; (5) "quyi" works include such works as "xiangsheng" (cross talk), "kuaishu" (clapper talk), "dagu" (ballad singing with drum accompaniment) and "pingshu" (story-telling based on classical novels), which are all used mainly for being performed in a way involving recitation, singing or both; (6) choreographic works are works which express ideas and emotions through successive body movements, gestures and facial movements and expressions; (7) works of acrobatic art are acrobatic, magic and circus works, which are, or can be, expressed in body movements and artistry. (8) works of fine art are two-dimensional or three-dimensional works created in lines, colours or other media which, when being viewed, impart aesthetic effect, such as works of painting, calligraphy and sculpture; (9) architectural works are aesthetic works, which are, and can be, expressed in architectural or constructional form; (10) photographic works are artistic works created by recording images of existing things of people on light-sensitive materials or other media with the aid of devices; (11) cinematographic works and works created by virtue of analogous methods of film production are works which are recorded on some medium consisting of a series of images, with or without accompanying sounds, and which can be projected with the aid of suitable devices or communicated by other means; (12) graphic works are drawings of engineering designs and product deigns for the purpose of actual construction or manufacture, and maps and sketches showing geographic phenomena and demonstrating the fundamentals or structure of a thing or an object; (13) model works are three-dimensional works made according to the shape and structure, and in a certain scale, of an object for the purpose of exhibition, experimentation, observation or measurement. Article 5. The terms as mentioned in the Copyright Law and in these Regulations shall mean the following: (1) news on current events refers to the mere facts or happenings reported by the mass media, such as newspapers, periodicals and radio and television stations; (2) sound recordings refer to the recordation of any sounds of performance and other sounds; (3) video recordings refer to the recordation of a series of related images, with or without accompanying sounds, other than cinematographic works or works created by virtue of analogous methods of film production; (4) producer of a sound recording refers to the first person who makes the sound recordings; (5) producer of a video recording refers to the first person who makes the video recordings; (6) performer refers to an actor, performing organization or any other person who performs literary and artistic works. Article 6. Copyright shall be generated on the date when the creation of a work is completed. Article 7. Copyright in the works of foreigners or stateless persons first published in the territory of China as provided for in Article 2, paragraph three, of the Copyright Law shall be under the protection beginning on the date of publication. Article 8. Where works of foreigners or stateless persons first published outside the territory of China and published in the territory of China within thirty days, the works shall be deemed to have been simultaneously published in the territory of China. Article 9. Where a jointly created work can not be used separately, the copyright shall be jointly enjoyed by, and exercised through consultation among, the co-authors. Where they fail to reach an agreement, nor do they have justified reasons for the failure, any party should not hinder any of the other parties from exercising all the rights, except the right of assignment. However, the income made shall be fairly distributed between or among the co-authors. Article 10. Where the copyright owner has authorized others to make cinematographic works and works created by virtue of analogous methods of film production, it is deemed that he has permitted them to make necessary alteration of his works, insofar as such alteration does not distort or mutilate the original work. Article 11. The "assigned tasks" in the provision of Article 16, paragraph one of the Copyright Law, which relates to works created in the course of employment, shall refer to duties which citizens should perform in the legal entity or organization. The "material and technical resources" used for the creation of works in the course of employment in the provision of Article 16, paragraph two of the Copyright Law refer to fund, equipment or reference material which the legal entity or organization has provided the citizens to accomplish the creation. Article 12. During the two years after the completion of a work created in the course of employment, the author, with the consent of the legal entity or organization, authorizes a third party to exploit the work in the same way as the legal entity and receives remuneration, the remuneration shall be distributed between the author and the entity or organization at an agreed ratio. The time limit of two years after the completion of the creation of a work shall be calculated from the date on which the author thereof delivers the work to the entity. Article 13. In the case of a work of an unknown author, the copyright, except the right of authorship, shall be exercised by the owner of the original of the work. Where the author has been identified, the copyright shall be exercised by the author or his heir in title. Article 14. In the case where one of the co-authors of a work of joint authorship dies without heir in title or other behested beneficiary of the rights owned by him according to Article 10, paragraph one (5~17), of the Copyright Law, the rights shall be exercised by the other co-authors. Article 15. The right of authorship, the right of revision and the right of integrity shall, after the death of the author, be protected by the heir in title and other behested beneficiary. In the absence of an heir in title or other behested beneficiary, the right of authorship, the right of revision and the right of integrity shall be protected by the copyright administrative departments. Article 16. The exploitation of works the copyright of which is owned by the State shall be administered by the copyright administrative department under the State Council. Article 17. In the case of posthumous works, the right of publication may be exercised by the author's heir in title or other behested beneficiary within a period of fifty years after the death of the author, unless the author had expressly stated otherwise. In the absence of an heir in title or other behested beneficiary, the said right shall be exercised by the owner of the original of the work. Article 18. In the case of a work of an unknown author, the term of protection in relation to the rights provided for in Article 10, paragraph one (5~17), of the Copyright Law, shall be fifty years ending on December 31 of the fiftieth year after the first publication of the work. Article 21 of the Copyright Law shall be applicable after the author of the work has been identified. Article 19. Any person who exploits a work created by another person shall indicate the name of the author and title of the work, except otherwise agreed between interested parties or otherwise impossible to do so due to the special characteristic of the way the work is exploited. Article 20. A published work as mentioned in the Copyright Law refers to a work which has been made available to the public by the copyright owner himself or by authorization. Article 21. Where any person exploits, according to the relevant provisions of the Copyright Law, a published work that may be exploited without the authorization of the copyright owner, he shall not affect the normal exploitation of the work, nor unreasonably prejudice the legitimate interests of the copyright owner. Article 22. The standard of remuneration for exploitation of works under Article 23, Article 32, paragraph two, and Article 39, paragraph three, of the Copyright Law shall be formulated and published by the copyright administrative department under the State Council in conjunction with the competent price administrative department under the State Council. Article 23. Licensing contracts shall be concluded with copyright owners when exploiting works of other persons. Where the right licensed is an exclusive licensing right, the contracts shall be made in writing, except in cases where works are to be published by newspapers and periodicals. Article 24. The contents of the exclusive licensing right provided for in Article 24 of the Copyright Law shall be agreed in contract. Where no such contractual agreement is made or the agreement is not clear, it shall be deemed that the licensee has the right to exclude any other person, including the copyright owner, to exploit the work in the same way. Except otherwise agreed, a licensee who licenses a third party to exercise the same right must be authorised by the copyright owner. Article 25. Any person, who concludes an exclusive licensing contract or assignment contract with a copyright owner, may submit, for filing, the contractual documents to the copyright administrative department. Article 26. Rights and interests related to copyright, as mentioned in the Copyright Law and these Regulations, mean the right enjoyed by publishers in the layout design of their publications, the right enjoyed by performers in their performances, the right enjoyed by producers of audio and video recordings in their products and the right enjoyed by radio and television stations in their broadcasts. Article 27. Publishers, performers, producers of audio and video recordings and radio and television stations, in the course of exercising their rights, shall not prejudice the rights of the copyright owners of the works being used and of the original works. Article 28. Where it is agreed in a book publishing contract that the publisher enjoys the exclusive publishing right, but the contents of the right is not clearly defined, it shall be deemed that the publisher enjoys the exclusive right to publish in the same language of the original edition or revised edition of the book within the term of validity of the contract and in the geographic area agreed under the contract. Article 29. The state of being out of print in relation to a work mentioned in Article 31 of the Copyright Law shall be established where two orders sent by the author to the publisher, are not fulfilled within six months. Article 30. To declare that the reprinting of his work in whole or in part is not permitted pursuant to Article 32, paragraph two, of the Copyright Law, the copyright owner shall make a statement to that effect at the same time when the work is first published in a newspaper or a periodical. Article 31. To declare that the producing of sound recording products of his work is not permitted pursuant to Article 39, paragraph three, of the Copyright Law, the copyright owner shall make a statement to this effect at the same time when the sound-recording products of the work are legitimately produced. Article 32. Any person who exploits a work of another person according to the provisions of Article 23, Article 32, paragraph two, and Article 39, paragraph three, of the Copyright Law shall pay remuneration to the copyright owner within two months from the date of exploitation of the work. Article 33. Performance by foreign or stateless performers in the territory of China shall be protected by the Copyright Law. The right enjoyed by foreign or stateless performers in their performance pursuant to the international treaties to which China has acceded shall be protected by the Copyright Law. Article 34. Audio and video recordings produced and distributed in the territory of China by foreign or stateless producers shall be protected by the Copyright Law. The right enjoyed by foreign or stateless producers in their audio and video recordings produced and distributed in the territory of China shall be protected by the Copyright Law. Article 35. The right enjoyed by foreign radio and television organizations in their broadcasts pursuant to the international treaties to which China has acceded shall be protected by the Copyright Law. Article 36. In respect of infringement of copyright, with injury to the social and public interests, as enumerated in Article 47 of the Copyright Law, the copyright administrative departments may impose a fine not exceeding three times the amount of illegal business turnover. Where it is difficult to calculate the amount of illegal business turnover, it may impose a fine of no more than RMB 100,000 yuan. Article 37. The copyright administrative departments under the local governments shall be responsible for investigating and handling infringements of copyright, with injury to the social and public interests, as enumerated in Article 47 of the Copyright Law. The copyright administrative department under the State Council may investigate and handle copyright infringements that are of nationwide influence. Article 38. These Implementing Regulations shall enter into force on 15 September 2002. The Implementing Regulations of the Copyright Law of the People��s Republic of China as approved by the State Council on 24 May 1991 and promulgated by the National Copyright Administration on 30 May 1991 shall be simultaneously abrogated.
Regulations for Protection of Computer Software
Regulations for Protection of Computer Software Promulgator: the State Council Promulgation Date: 2001-12-20 Status: Valid Effective Date: 2002-01-01 Chapter I General Provisions Article 1 These Regulations are hereby formulated in accordance with the provisions of the Copyright Law of the People's Republic of China with a view to protecting the rights and interests of copyright owners of computer software, regulating the interests generated in the development, dissemination and use of computer software, encouraging the development and circulation of computer software and promoting the development of the software industry and informationisation of the national economy. Article 2 Computer software (hereinafter referred to as software) as mentioned in these Regulations refers to computer programs and their relevant documents. Article 3 The meanings of the following terms in these Regulations are: (1) A computer program refers to a coded instruction sequence which is written for the purpose of obtaining a certain result and which may be executed by devices with information processing capabilities such as computers, or a symbolic instruction sequence or symbolic statement sequence which may be automatically converted into a coded instruction sequence. The source program and object program of the same computer program are of one work. (2) Documents refer to literal data and charts used to describe the contents, composition, design, function norms, state of development, test results and method of use, such as program design specifications, flowcharts, and users' manuals. (3) Software developers refer to legal entities or other organisations actually organising and carrying out development work, and assuming responsibility for the developed software; or natural persons independently accomplishing software development by relying on their own facilities and assuming responsibility for the software. (4) Software copyright owners refer to natural persons, legal entities or other organisations enjoying the copyright of software in accordance with the provisions of these Regulations. Article 4 Software protected under these Regulations must be developed independently by the developers and already fixed on certain tangible objects. Article 5 In respect of the software he or it has developed, regardless of whether or where the said software has been made public, a Chinese citizen, legal entity or any other organisation shall enjoy the copyright in accordance with these Regulations. Where the software of a foreign person or stateless person is first made public in China, he shall enjoy the copyright in accordance with these Regulations. The copyright of the software of foreign persons or stateless persons shall be protected under these Regulations in accordance with agreements concluded between the countries to which the developers belong or in which their have they habitual residence and China or according to international conventions China has acceded to. Article 6 The protection of software under these Regulations shall not be extended to ideas, handling processes, operating methods or mathematical conceptions used in software development. Article 7 Software copyright owners may register their software with a software registry organ designated by the Copyright Administration Department under the State Council. The certificates issued by the registry organs are the preliminary regulatory proof of the registration. Registration of software requires payment of fees. The rate of fees for software registration shall be provided for by the Copyright Administration Department under the State Council in conjunction with the competent pricing department under the State Council. Chapter II Copyright of Software Article 8 A software copyright owner shall enjoy the following rights: (1) The right of making public, i.e., the right to decide whether to make the software available to the public; (2) The right of authorship, i.e., the right to make known his identity as developer and the right to have his name indicated on his software; (3) The right of alteration, i.e., the right to make addition to, deletion from or modification of, instructions and/or statement sequence; (4) The right of reproduction, i.e., the right to produce one or more copies of the software; (5) The right of distribution, i.e., the right to make the original copy or reproductions of the software available to the public by virtue of sale or donation; (6) The right of rental, i.e., the right to permit, with remuneration paid to the authoriser, others to temporarily use software unless the software is not the main subject matter of the rental; (7) The right of communication on information networks, i.e., the right to communicate software to the public by wire or by wireless means in such a way that members of the public may access to the software at a time and from a place individually chosen by them; (8) The right of translation, i.e., the right to translate the original software from one natural language and/or writing system into another natural language and/or writing system; and (9) Other rights the software copyright owners are entitled to. The software copyright owner may authorise others to exercise his software copyright and has the right to receive remuneration therefor. The software copyright owner may wholly or partially assign his software copyright and has the right to receive remuneration therefor. Article 9 The copyright of items of software shall be owned by the respective software developers, except that these Regulations provide otherwise for. In the absence of evidence to the contrary, the natural person, legal entity or other organisation whose name is indicated on the software is the developer thereof. Article 10 In respect of an item of software developed by two or more natural persons legal entities or other organisations in cooperation, the ownership of the copyright in the software shall be stipulated by the conclusion of a written agreement between the developers who have cooperated in the development of the software. Where there is no written agreement, nor is there explicit stipulation made in the agreement or where the software developed in cooperation may be partitioned and used, the developers may separately enjoy the copyright to the respective parts developed by them, but the exercise of such copyright may not be extended to the copyright of the jointly developed software as a whole. Where the software developed in cooperation cannot be partitioned and used in parts, the copyright shall be owned by the cooperating developers after reaching unanimity through consultation. Where unanimity cannot be reached through consultation, nor is there any justification, none of the parties shall prevent the other party or parties from exercising the rights except the right of assignment, but the proceeds shall be appropriately distributed to all cooperating developers. Article 11 The ownership of the copyright of an item of software developed on commission shall be stipulated by the conclusion of a written agreement between the commissioning party and the commissioned party. Where there is no written agreement, nor is an explicit stipulation made in the agreement, the copyright shall go to the commissioned party. Article 12 The ownership and exercise of the copyright of an item of software developed in fulfilling a task assigned by a governmental department shall be stipulated by a letter of assignment or by a contract. Where no explicit stipulation is made in the letter of assignment or in the contract, the copyright of the software shall go to the legal entity or other organisation accepting the assignment. Article 13 Where an item of software developed by a natural person during his service the legal entity or other organisation falls into any of the following provisions, the copyright of the software shall be owned by the legal entity or other organisation, and the legal entity or other organisation may reward the natural person who has developed the software: (1) The software is developed in accordance with development objective explicitly assigned in line of duty; (2) The developed software is a foreseeable or natural result of his carrying on activities in the line of duty; or (3) The software is one that is developed mainly by utilising the fund, special equipment, undisclosed special information or other material and technical facilities of a legal entity or other organisation and for which the legal entity or other organisation is responsible for. Article 14 The copyright in software is generated on the date of accomplishment of the development of the software. The term of protection for a natural person's software copyright shall be the lifetime of the natural person and fifty years after his death, and expires on 31 December of the fiftieth year after the death of the natural person; in the case of software of joint development, such term shall expire on 31 December of the fiftieth year after the death of the last surviving natural person. The term of protection for a legal entity or other organisation's software copyright shall be fifty years, and expires on 31 December of the fiftieth year after the software is made public for the first time. However, any item of software that has not been made public for fifty years since the date on which the development thereof is accomplished shall no longer be protected under these Regulations. Article 15 Where the copyright of an item of software belongs to a natural person and the copyright is still within the term of protection after the death of the natural person, the successor to the software copyright shall succeed to the rights, except the right of authorship, as stipulated in Article 8 of these Regulations in accordance with the relevant provisions of the Law of Succession of the People's Republic of China. Where the copyright in an item of software belongs to a legal entity or other organisation, its copyright shall, after the change or termination of the status of the legal entity or other organisation, during the term of protection provided for in these Regulations, be enjoyed by the succeeding legal entity or other organisation which has taken over the former's rights and obligations, or, in the absence of such a successor legal entity or other organisation, by the State. Article 16 An owner of legitimate duplicates of an item of software enjoys the following rights: (1) to load the software into a computer or device capable of information processing according to the need of use; (2) to make backup duplicates for filing to prepare for damaged duplicates. However, such backup duplicates shall not be supplied in any way to others for their use. Once a holder loses its/his right to hold the software lawfully, he or it shall be responsible to destroy the said backup duplicates. (3) to make necessary revisions of the software in order to use it in an actual environment of computer application or to improve its function and performance. However, except otherwise agreed, it or he shall not supply the revised version to any third party without the consent of the copyright owner of the software. Article 17 Items of software may be used by way of installation, display, transmission or storage, etc. for the purposes of study and research of the concepts and principle underlying the design of the software without the consent of, or remuneration to, the copyright owner of the software. Chapter III Licensing and Assignment of Software Copyright Article 18 To license another person to exercise software copyright, a licensing contract shall be concluded. The licensee shall not exercise the right the software copyright owner has not explicitly licensed in the licensing contract. Article 19 To license another person to exclusively exercise software copyright, the interested parties shall conclude a licensing contract in writing. Where no contract is concluded in writing, or where exclusive licensing is not explicitly agreed in the contract, the licensed right shall be deemed to be a non-exclusive right. Article 20 Where a software copyright is to be assigned, the interested parties shall conclude a contract in writing. Article 21 Any contract concluded for licensing another person to exclusively exercise software copyright, or for assigning a software copyright, may be registered with a registry organ designated by the Copyright Administrative Department under the State Council. Article 22 Where a Chinese citizen, legal entity or other organisation licenses or assigns his or its software copyright, he or it shall comply with the relevant provisions of the Regulations of the People's Republic of China on Technology Import and Export Administration. Chapter IV Legal Liabilities Article 23 Except otherwise provided for in the Copyright Law of the People's Republic of China or these Regulations, where any of the following acts of infringement occurs, the infringer shall, according to circumstances, bear such civil liabilities as stopping the infringement, eliminating the ill effects, making an apology and compensating for the damages: (1) to make public or register an item of software without the consent of the software copyright owner; (2) to make public or register, as one's own, an item of software developed by another person; (3) to make public or register, as a work completed on one's own, an item of software developed in cooperation with others without the consent of the cooperators; (4) to have one's own name indicated on an item of software developed by another person or to change the name indicated on an item of software developed by another person; (5) to alter or translate an item of software without the consent of the software copyright owner; or (6) to commit any other act of infringement of software copyright. Article 24 Except otherwise provided for in the Copyright Law of the People's Republic of China, these Regulations or other laws and administrative regulations, where any of the following acts of infringement occurs, the infringer shall, according to circumstances, bear such civil liabilities as stopping the infringement, eliminating the ill effects, making an apology and compensating for the damages; where, meanwhile, the public interests are prejudiced, the Copyright Administrative Department shall order cessation of the infringing act, confiscate unlawful income from the act, confiscate and destroy infringing duplicates, and may impose a fine; if the circumstances are serious, the Copyright Administration Department may also confiscate the materials, tools and equipment mainly used for making the infringing duplicates; if the act violates the criminal law, the infringer shall be prosecuted for his or its criminal liabilities as imposed on the crime of copyright infringement or the crime of selling infringing duplicates under the Criminal Law: (1) duplicating or partially duplicating the software of a copyright owner; (2) distributing, renting, or communicating to the public on an information network, the software of a copyright owner; (3) intentionally circumventing or destroying the technological measures taken by a copyright owner for protecting the copyright in his or its software; (4) intentionally deleting or altering the electronic right management information of software; or (5) assigning, or licensing others to exercise, the copyright in the software of a copyright owner. Where the preceding act (1) or (2) is committed, a fine of RMB 100 yuan apiece, or of an amount no more than five times the amount of the value of the goods, may be imposed; where the preceding act (3), (4) or (5) is committed, a fine of no more than RMB 50,000 yuan may be imposed. Article 25 The amount of damages for an infringement of software copyright shall be fixed in accordance with the provisions of Article 48 of the Copyright Law of the People's Republic of China. Article 26 A software copyright owner who has evidence to establish that another person is committing or, will commit, an act of infringement of his right, which could cause irreparable injury to his legitimate rights and interests if the act is not stopped immediately may, according to the provision of Article 49 of the Copyright Law of the People's Republic of China, apply to the People's Court for ordering cessation of the related act and for tacking the measures for property preservation before instituting legal proceedings.Article 27 For the purpose of preventing an infringing act and under the circumstance where the evidence may be lost or is difficult to obtain afterwards, the software copyright owner may, according to the provision of Article 50 of the Copyright Law of the People's Republic of China, apply to the People's Court for evidence preservation before instituting legal proceedings. Article 28 The publisher or producer of duplicates of an item of software cannot prove that his publication or production has been authorised, or the distributor or the renter of the reproduction of an item of software who cannot prove that the reproductions he or it has distributed or rented is from a legitimate source, shall bear legal liability. Article 29 Software developed by a software developer is similar to an item of existing software due to limited alternatives of expression available does not constitute an infringement of the existing software copyright. Article 30 The holder of duplicate of an item of software who does no know, nor has any reasonable ground to know, that the item of software is an infringing duplicate shall not be liable for damages. However, he or it shall stop using and destroy the infringing duplicate. If stopping the use of, or destroying, the infringing duplicate causes great losses to the user of the duplicate, the user of the duplicate may go on using it after paying the software copyright owner the appropriate fees. Article 31 A contractual dispute over software copyright infringement may be settled through mediation. The parties may apply to the arbitration organ for arbitration of a contractual dispute over software copyright in accordance with the arbitration clause in the contract or a written arbitration agreement subsequently concluded. Where the parties have not inserted an arbitration clause in the contract, nor have they subsequently concluded a written arbitration agreement, either of the parties may directly institute proceedings in the People's Court. Chapter V Supplementary Provisions Article 32 Acts of infringement which occur before these Regulations enter into force shall be dealt with in accordance with the relevant State regulations in effect at the time said acts of infringement occur. Article 33 These Regulations shall enter into force as of 1 January 2002. The Regulations on Computer Software Protection issued by the State Council on 4 June 1991 is simultaneously abrogated.