Trademark

Trial Measures for Evaluating and Protecting Brands in the Commercial Field

Article 1 The present Measures are formulated For the purpose of promoting the transformation of trade growth mode, effectively increasing trade efficiency, promoting the implementation of brand strategies as well as regulating and enforcing evaluation and protection of brands in the commercial field.

 

Article 2 The Ministry of Commerce shall, within its scope of powers endowed by the State Council, be in charge of uniformly carrying out the work in respect of evaluation and protection of brands in the commercial field.

 

Article 3 The competent administrations of commerce in each province, autonomous region, municipality directly under the Central Government, city specifically designated in the state plan and Xinjiang Production and Construction Corps (hereinafter referred to as local competent administrations of commerce), national industrial associations and import-export chambers (hereinafter referred to as industrial organizations) shall be in charge of the work of applying and recommending the related brands of the local places and the same industries under the provisions of the present Measures and carry out the work regarding promotion, improvement, protection and social investigation of brands within their respective scope of powers.

 

Article 4 Evaluation of brands in the commercial field shall be based on the market performances of a brand in both domestic and overseas markets, represent the recognition, selection, use, appraisement and feedback of its users and embody its capacities of market competition and value creation as well as the potential of long-term development.

 

Article 5 Evaluation of brands in the commercial field shall take the voluntary application of an enterprise as the premise, employ the mechanism of application by enterprises, model evaluation through model, assessment by experts, confirmation by market and issuance by governments, as well as abide by the principles of science, impartiality, objectiveness and selection of the best.

 

Article 6 When applying for a brand in the commercial field, the following conditions shall be met:

 

(1) the applicant enterprise is set up within the territory of China in accordance with law and legally exists, participates of its own free will and agrees to comply with all provisions and requirements of the Ministry of Commerce concerning evaluation and protection of brands;

 

(2) the brand under application is created within the territory of China, its ownership belongs to the applicant enterprise, it has been used for three years or more, has been registered as a trademark or has obtained the legal protection of equal validity in the major markets domestically and overseas, and the place for its first registration as a trademark is China;

 

(3) the brand under application is a brand of enterprise, product or service with relatively strong market competitiveness, influence and fairly high popularity, whose quality has reached the leading level of China or the advanced level of the world, who has relatively strong capacities of independent innovation and sustainable development and has obtained recognition of the market, general public and vast number of users;

 

(4) the economic and social performances of the applicant enterprise is good, both the gross incomes from sales and the brand's capacity of making profits (the proportion of the net profit on the sales of products and services under the brand to the gross cost for sales) rank top in this industry;

 

(5) the related brand products and services and the applicant enterprise itself comply with the provisions of the related state laws and regulations on industry, safety, sanitation, environmental protection and social liability etc..

 

Article 7 The Ministry of Commerce shall carry out evaluation of brands regularly; issue a notice concerning evaluation of brand in the commercial field in advance specifying the scope, procedures and period for the current evaluation.

 

Article 8 An applicant enterprise shall fill in the application papers according to the facts, supply actual, valid and integrated materials for evidences and necessary channels for verification, and submit them to the competent administration of commerce of its locality or to the related industrial organizations within the fixed period.

 

The local competent administrations of commerce or industrial organizations shall examine and verify the authenticity, validity and integrity of the application materials of the participating brands in the current places or industries, propose its recommending opinions and submit the application materials to the Ministry of Commerce within the provisioned time limit.

 

Article 9 The Ministry of Commerce may, according to the demands of the evaluation work, entrust professional institutions to conduct verification, sorting out and comprehensive measurement and calculation on all indices and data of the participating brands, set up several expert working groups to verify and evaluate the participating brands and entrust professional fact-finding organs and public media to carry out social investigation on the participating brands.

 

Article 10 The Ministry of Commerce shall publicize the list of brands to be evaluated to the general public, grant corresponding brand titles and use rights of brand marks to enterprises in accordance with the publication situation and publicize the related situation to the general public.

 

Article 11 In case an enterprise, which has obtained a brand title as granted by the Ministry of Commerce, seriously injures the rights and interests of the consumers, has any great quality problem or safety accident, severely impairs intellectual property right of any other person, seriously disrupts the market order or obtains the brand title by illegal means such as falsification, the Ministry of Commerce shall revoke the related brand title of the enterprise and may not accept its application for participating in evaluation of brands for one to three years.

 

Article 12 Activities of brand evaluation in the commercial field shall accept supervision of all circles in the society. No entity or individual may, by taking advantage of this opportunity, charge any fee against any participating enterprise or conduct any profit-making activity.

 

Article 13 When any organ or personnel participating in the brand evaluation work of the Ministry of Commerce conducts the evaluation work, it/he shall follow the related provisions and procedures, and shall bear the obligation of keeping confidential the business and technical secrets for the participating enterprises.

 

Article 14 Any entity or individual, when finding any violation of laws or regulations in the work of brand evaluation in the commercial field, may complain or pick up it to the Ministry of Commerce or the local competent administrations of commerce. The complainant or informer shall provide materials in written form, show the authentic identity and provide necessary materials for evidence.

 

Article 15 In case of any infringement upon the right to enterprise title, right to the exclusive use of a registered trademark, patent right, copyright or any other intellectual property right of a brand granted by the Ministry of Commerce, any act of unfair competition against a brand granted by the Ministry of Commerce or any dispute over domain name of a brand granted by the Ministry of Commerce, it shall be dealt with under the related laws and regulations of the state.

 

Cooperating with the administrative departments concerned, the Ministry of Commerce shall intensify its efforts in protecting the brands granted by the Ministry of Commerce under the provisions of the preceding paragraph and transfer any entity or individual to the judicial authority for disposal under law, in case it/he is suspected of being involved in any crime.

 

Article 16 In case any import goods injures any intellectual property right of any brand granted by the Ministry of Commerce and harms the foreign trade order, the Ministry of Commerce shall, under the Foreign Trade Law of the People's Republic of China, take such measures as prohibition from importation.

 

In case the patent right, trademark right or copyright of any brand granted by the Ministry of Commerce is injured in any economy and technology trade exhibition, trade fair, exposition, exhibition or any other activity, the Ministry of Commerce shall, in conjunction with the related departments, dispose it under the Measures for Protecting Intellectual Property Rights During Exhibitions.

 

Article 17 The Ministry of Commerce shall set up and perfect a pre-warning system for protecting overseas intellectual property rights so as to intensify the overseas protection of the brands granted by the Ministry of Commerce.

 

Article 18 By cooperating with the business offices of the embassies located abroad, the Ministry of Commerce shall set up an overseas service platform for intellectual property rights and provide service of public information consultation for the overseas protection of the brands granted by the Ministry of Commerce.

 

Article 19 The Ministry of Commerce shall encourage and help enterprises to handle trademark registration, patent application or copyright registration relevant to the brands granted by the Ministry of Commerce in other countries and regions, and shall take proper measures to support the enterprises to protect their lawful rights and interests in other countries and regions by legal means.

 

Article 20 In case any intellectual property right of a brand granted by the Ministry of Commerce is injured or the brand suffers any unfair competition, the enterprise may complain or pick up it to the related department, the local service center for protection of intellectual property or the Ministry of Commerce. The local service center or the Ministry of Commerce shall transfer it to the related department and keep track on and feed back the disposal of the case.

 

In case any intellectual property right of a brand granted by the Ministry of Commerce is injured abroad, the enterprise may response the situation to the business office of the embassy located in this foreign country, the Ministry of Commerce or the overseas commercial complaint service center for Chinese enterprises under the Ministry of Commerce.

 

Article 21 An enterprise, which obtains a brand granted by the Ministry of Commerce, shall actively carry out intellectual property construction, increase its input in intellectual property, actively protect its lawful rights and interests, enforce management on brands and maintain the image of the brand granted by the Ministry of Commerce.

 

Article 22 In case a brand granted by the Ministry of Commerce is transferred, pledged, evaluated and contributed as investment, it shall be fairly evaluated by an evaluation organ that is correspondingly qualified and the transaction shall be reported to the Ministry of Commerce for record within 30 days as of the conclusion of corresponding contract.

 

In case the actual control power of the enterprise that obtains a brand granted by the Ministry of Commerce is transferred as a result of merger or acquisition, the related parties shall report this situation to the Ministry of Commerce.

 

Article 23 The brand mark as mentioned in Article 10 shall belong to the Ministry of Commerce. A brand enterprise may use this mark on the products and services on which a brand title has been granted and their packages, decorations, instructions, ads, and other related materials. Any brand mark may be forged, sold or falsely used by any entity or individual.

 

Article 24 In case any entity or individual charges any fee or carries out any profit-making activity in the name of brand evaluation in the commercial field with violation of the provisions of Article 12, the Ministry of Commerce shall warm it/him and order him/ it to make corrections within a fixed time limit; if the circumstance is serious, the related department shall impose administrative or criminal punishment upon him/it under law.

 

Article 25 In case any organ or person participating in the work of brand evaluation conducted by the Ministry of Commerce fails to abide by the related provisions and procedures of brand evaluation with violation of the provisions of Article 13, his/ its qualification for participating in evaluation work shall be revoked. In case any organ or person commits any fraud for selfish purposes, abuses the authority or neglects its/his duties, an administrative punishment shall be given to him/it under law; if a crime is constituted, criminal liabilities shall be investigated under law.

 

Article 26 If a transaction of brand is not evaluated or reported to the Ministry of Commerce for record with violation of the provisions in Article 22, the Ministry of Commerce shall give an admonition to the violator and order the related parties to make corrections; if the circumstance is serious, the corresponding brand title shall be canceled.

 

Article 27 In case any entity, with violation of the provisions in Article 23, extends the use scope without authorization or uses a brand mark granted by the Ministry of Commerce on other products, services and their packages, decorations, instructions, ads, and the related materials, the Ministry of Commerce shall give an admonition to it and order it to make corrections within a fixed time limit; if it fails to do so, its corresponding brand title shall be canceled.

 

In case any entity, with violation of the provisions in Article 23, forges, sells or falsely uses any brand mark granted by the Ministry of Commerce, the Ministry of Commerce shall give an admonition to it or impose upon it a fine of not more than 30,000 Yuan, order it to make corrections within a fixed time limit and subject it to corresponding legal liabilities under law.

 

Any application for participating in brand evaluation in the commercial, which is field by an entity within two years as of the occurrence of its illegal act, may not be accepted.

 

Article 28 In case any entity or individual refuses to accept the administrative punishment made by the Ministry of Commerce, it/he may apply for administrative review under laws or initiate an administrative lawsuit before a people's court.

 

Article 29 The present Measures shall enter into force as of its printing and distribution.

 

  The Ministry of Commerce 2007-01-08   

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