Haworth & Lexon Law Newsletter
No.8, 2002 (Total:No.12) August 20th, 2002
Edited by Haworth & Lexon
★ Implementing Regulations of Trademark Law Promote the Registration and Protection of Trademark
★ Latest Laws and Regulations
1 The Supreme People’s Court issued “Certain Issues Concerning Handling Enterprises Bankruptcy Case”;
1 The Reply of the Supreme People’s Court on Whether or Not the Injured Parties in a product Tort Case Can Make the Product’s Trademark Holder a Defendant in Civil Litigation
1 Provisions of the Supreme People’s Court on Certain Issues Concerning Evidence in Administrative Cases
1 The Notice on Issues Related to the Launch of Pilot Projects for the Establishment of Foreign-Invested Logistics Enterprises
1 The Implementing Regulations for the Law of the People’s Republic of China on Administration of Physic
The State Council promulgated Regulations on the Implementation of the Trademark Law of the People’s Republic of China on August 3, which shall come into force on Sept.15 2002 The Implementing Regulations promote the application for trademark registration and the protection of registered trademarks in the followings:
I. More unity in handling trademark matters
According to Article 8 of the Regulations, The Chinese language shall be used when applying for trademark registration and handling other trademark matters. Thus, different meanings can be avoided in the application for trademark registration.
II. More practical in applying for trademark registration
1.the definition of the application date
Article 18 says, The Trademark Office will regard the date when they receive the applying documents as the application date. If the documents filled in right form and complete procedures, the Trademark Office will accept the application and notify the applicant in written.
2.regulations on applying for one trademark jointly
According to the Implementing Regulations, a representative should be appointed in the application when the trademark registration is applied for jointly. If not, the first one on the applicant list will be regarded as the representative.
3.regulations on applying on the same day for the registration of identical or similar trademarks by two or more applicants
Where two or more applicants apply on the same day for the registration of identical or similar trademarks for identical or similar commodities, each applicant shall, within 30 days of the date of receipt of the notification of the Trademark Office, submit proof of the use of trademark before the application. Where the trademark has been used on the same day or has not been used by both parties, the applicants shall, within 30 days of the date of receipt of the notification of the Trademark Office, consult each other on their own and submit the written agreement to the Trademark Office. If the applicants do not wish to consult each other or no agreement is reached, the Trademark Office shall notify the applicants that the result will be decided by the method of drawing lots. If the applicant does not come to draw lots, he will be regarded as giving up.
III. More rational in the trademarks review and adjudication
1.The challenge System
The officials of the Trademark Office and the Trademark Review and Adjudication Board should parry when meet the conditions set out in the law. The parry can also be asked by the applicants or other party concerned.
2.The concerned party should be informed 15 days before the public review and adjudication.
The Trademark Review and Adjudication Board shall, base on the petition of a party or actual needs, decide to conduct public review and adjudication on an application for trademark review and adjudication. The Trademark Review and Adjudication Board shall inform the party 15 days before the public review and adjudication.
IV. More detailed rules in judging the trademark infringement
The Implementing Regulations explain the Article 52 of the China’s Trademark Law that the following behavior will also be referred to trademark infringement.
1.Using the trademarks identical or similar to others’ registered trademarks as the names or decoration for identical or similar commodities to mislead the public
2. Providing the conditions for store, transportation, mailing, concealment and so on intentionally for those who violate the exclusive right to trademarks
V. More severely in punishing those who violate the exclusive right of trademarks
1.The penalty can be no more than 3 times as much as the illegal gains. If the illegal gains can’t be calculated, the penalty can be less than 100,000 RMB.
2.Where a Trademark Registration Certificate is forged or altered, criminal liability shall be pursued.
VI. Adding the method of dealing with the conflict between the exclusive right of trademarks and the right of trade name, and containing the illegal competition
According to Article 53 of the Regulations, if the owner of the trademark believes that the registration of an enterprise with the usage of his well-known trademark as the trade name of the enterprise will cheat or mislead the public, he can apply to the Enterprises Registration Office for revoking the registration. The Office should handle it in accordance with the Registration Regulations.
Latest News and Regulations
......The Supreme People’s Court issued “Certain Issues Concerning Handling Enterprises Bankruptcy Case”on July 18, 2002 and will take into forth on Spet.1, 2002. The Regulations provide detailed stipulations on the jurisdiction of the bankruptcy case, the application and receipt of bankruptcy, the bankruptcy reconciliation, the bankruptcy declaration, the creditor conference, the liquidating group, the bankruptcy credit, the distribution of the bankruptcy property, the bankruptcy fees and so on. According to the Regulations, the application for bankruptcy won’t be accepted in the situations as follows: ?/FONT>The debtor conceals or transfers the property and applies for bankruptcy in order to evade from debt. ?/SPAN>The creditor applies for bankruptcy in order to slander the reputation of the debtor, intending to impair the fair competition. Where state-owned enterprise applies to court for bankruptcy, it should submit the documents indicating that its superior sector has ratified the application. Moreover, the debtor can apply to the court for reconciliation before the end of the bankruptcy procedure and the court can also give suggestions. The labor’s request for compensation is also stipulated in the Regulations. Lawyers, accountants and the liquidating institutes can be the members of the liquidating group and they can also be engaged to do some liquidating work. The Regulations state that the right to substitute compensation is also within the scope of bankruptcy property, but the public welfare facilities of the debtor such as kindergartens, schools and hospitals are not referred to as bankruptcy property and should be dealt with according to the related national regulations.
The Reply of the Supreme People’s Court on Whether or Not the Injured Parties in a product Tort Case Can Make the Product’s Trademark Holder a Defendant in Civil Litigation was issued on July 4, 2002. It came into forth on July 28, 2002. The reply says that anyone who makes his name, title, trademark or other discernible marks seen on products, which indicates that he is the manufacturer, is the manufacturer of the Article 122 of Civil Law and the Law of Product Quality of the People’s Republic of China. In a product tort case, the injured party can make him a defendant. But it’s still not sure whether the product’s trademark holder should take substantial responsibility.
Provisions of the Supreme People’s Court on Certain Issues Concerning Evidence in Administrative Cases will take effect on Oct.1, 2002. The deadline for the plaintiffs, defendants and the third parties to submit proofs is stipulated in the Regulations. The proofs which are submitted beyond the deadline won’t be adopted by the Court. The Regulations also list the proofs that can’t be regarded as the legal basis of the sued administrative action. According to the Regulations, the defendant has to submit all the proofs which are the basis of the administrative action within the approved time, otherwise, it will be regarded as evidence or there are no proofs for the sued administrative action. The proofs submitted by the defendant also won’t be adopted if the defendant doesn’t come to the court without reasonable causes, unless the parties have exchanged the evidences before the court hearing. Furthermore, in order to protect the witnesses and the authenticating officials and their relatives, the Regulations state that the court should keep their address as a secret.
The Notice on Issues Related to the Launch of Pilot Projects for the Establishment of Foreign-Invested Logistics Enterprises was issued by the Ministry of Foreign Trade and Economic Cooperation on June 20, 2002. The Notice permits the establishment of joint venture logistics enterprises in the pilot areas of Beijing, Tianjin, Shanghai, Chongqing, Zhejiang, Jiangsu, Guangdong and the Shenzhen Special Economic Zone. The Notice states that foreign-invested logistics enterprises must be foreign-invested enterprises established by foreign investors using the Chinese-foreign equity joint venture or Chinese-foreign cooperative joint venture. The Notice lays regulations on the qualifications of the foreign investors and the foreign-invested logistics enterprises, and the managing limits for the foreign-invested logistics enterprises. Furthermore, the time limits for the foreign-invested logistics enterprises should be no more than 20 years, unless the ratification authorities ratify that the enterprises can extend the time limits. The Notice can also be applied to investors from HongKong, Macao and Taiwan.
The Implementing Regulations for the Law of the People’s Republic of China on Administration of Physic was issued on August 4, 2002 and will take effect on Sept.15 this year. The administration of the medicine manufacture enterprises, the medicine managing enterprises, the pharmaceutics of medical institutes, the medicine package, the medicine price and the advertisement, the supervision of the medicine and the legal responsibility concerned are stipulated in the regulations. The Medicine Manufacture Certificate will be conferred to the medicine manufacture enterprises who meet the qualification of the ratification authorities, and the Medicine Managing Certificate for the medicine managing enterprises qualified, the Medical Institutes Pharmaceutical Certificate for the medical institutes qualified. The Implementing Regulations also stipulates the regulation for the clinical test. As for the import medicine, the Regulations state that the medicine should be applied for registration in accordance with the regulations of the medicine administration and supervision authorities. The medicine manufactured by foreign enterprises with the Import Medicine Registration Certificate and the medicine manufactured by enterprises of HongKong, Macao and Taiwan with the Medicine Registration Certificate can be imported.