On April 23, 2019, the 10th meeting of the Standing Committee of the 13th National People's Congress has adopted the decision to amend China’s current Trademark Law, which will come into effect on November 1, 2019. This is the fourth amendment of the Trademark Law since 1993, 2001 and 2013. Following are major amendments:
1. Article 4, Paragraph 1, is amended as follows:
Any natural person, legal person or other organization that intends to acquire the exclusive right to use a trademark for hiss goods or services in production and business operations shall apply for registration of the trademark to the Trademark Office. An application for registration of a trademark in bad faith, whose purpose is not for use, shall be rejected.
2. Article 19, Paragraph 3, is amended as follows:
If a trademark agency knows or shall know that the trademark for which the client intends to apply belongs to any of the circumstances prescribed in Article 4, Article 15 and Article 32 of this law, the trademark agency shall not accept the entrustment.
3. Article 33 is amended as follows:
The prior right owner or any interested party may, within three months from the date of Publication, file an opposition to the Trademark Office against an accepted and published application for registration of a trademark if he finds that the application is in violation of Paragraph 2 and Paragraph 3 of Article 13, Article 15, Paragraph 1 of Article 16, Article 30, Article 31 or Article 32 of this Law, or any person finds that the application is in violation of Article 4, Article 10, Article 11, Article 12 or Paragraph 4 of Article 19 of this Law. If no opposition is filed within the Publication period, the trademark shall be registered, a certificate of registration shall be issued, and the registration shall be published.
4. Article 44, Paragraph 1 is amended as follows:
Where a registered trademark is in violation of Article 4, Article 10, Article 11, Article 12 or Paragraph 4 of Article 19 of this Law, or the registration of a trademark has been acquired by fraud or any other unfair means, the Trademark Office shall declare the registered trademark invalid; any other organization or individual may request the Trademark Review and Adjudication Board to declare such a registered trademark invalid.
5. Article 63, Paragraph 1 is amended as follows:
……Where the infringement of the exclusive right to use a registered trademark is committed in bad faith and the circumstance is serious, the amount of damage shall be more than one time but less than five times of the amount assessed by referring to the above calculation. ……
Article 63, Paragraph 3 is amended as follows:
Where it is difficult to determine the losses suffered by the right holder, the profits the infringer has earned and the fees of licensing a registered trademark, the people's court grant a compensation not exceeding RMB 5,000,000 Yuan, according to the circumstances of the act of infringement.
Article 63, Paragraph 4 is added as follows:
With handling trademark disputes, the people's court shall, at the request of the right holder, order the destruction of commodities belonging to counterfeit registered trademarks, except under special circumstances; order the destruction of materials and tools mainly used to manufacture counterfeit registered trademarks without compensation; or, under special circumstances, order the prohibition of the aforementioned materials and tools from entering commercial channels without compensation.
Article 63, Paragraph 5 is added as follows:
Commodities counterfeiting registered trademarks shall not enter commercial channels after only removing counterfeit registered trademarks.
6. Article 68, Paragraph 1, (3) is amended as follows:
To violate Article 4 or Paragraph 3 or Paragraph 4 of Article 19 of this Law.
Article 68, Paragraph 4 is added as follows:
Those who apply for trademark registration in bad faith shall be given administrative penalties such as warning and fines according to the circumstances; those who file trademark lawsuits in bad faith shall be punished by the people's court according to law.