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Interpretation on the Application of Punitive Damages in the Trial of Civil Disputes over Intellectual Property Infringement

Preamble     
In order to lawfully punish serious infringements of intellectual property rights in accordance with the law and strictly implement the punitive damages system for intellectual property rights, this Interpretation is formulated in accordance with the Civil Code , the Copyright Law , the Trademark Law , the Patent Law of People's Republic of China, the Anti-Unfair Competition Law , the Seed Law , the Civil Procedure Law, and other relevant legal provisions of the People's Republic of China, and in combination with judicial practice.

Article 1

Where the plaintiff claims that the defendant willfully infringes the intellectual property rights legally owned by the plaintiff and the circumstances are serious, and requests that the defendant be ordered to bear punitive damages liability, the people's court shall try the case in accordance with the law.

Article 2

Where the plaintiff claims punitive damages, the plaintiff shall specify the amount of damages, the method of calculation, and the facts and grounds on which the claim is based.

Article 3

Where the plaintiff adds a claim for punitive damages before the end of the debate in the court of first-instance, the people's court shall grant it; Where a claim for punitive damages is added during the second-instance proceedings, the people's court may conduct mediation based on the principle of voluntariness of the parties. If the mediation fails, the claim shall not be supported.

Article 4
Where the plaintiff, in an intellectual property infringement lawsuit, claims ordinary damages but not punitive damages, and still fails to do so after the people’s court has provided clarification, any subsequent separate lawsuit seeking punitive damages based on the same infringing fact after the conclusion of the previous lawsuit shall not accepted by the people’s court.

Article 5

Where the plaintiff claims punitive damages against a defendant for willful unfair competition conduct other than trade secret infringement, the people’s court shall not support such claim, unless otherwise provided by law.

Article 6

For the determination of willful infringement of intellectual property rights, the people’s court shall comprehensively consider factors such as the type of the intellectual property right, the status of the right as well as its reputation, and the relationship between the defendant and the plaintiff or the interested parties.

Where the defendant falls under any of the following circumstances, the people's court may determine that the defendant has the intent to willfully infringe the intellectual property rights, unless the party provides contrary evidence sufficient to refute such determination:

(1) where the defendant, even after being duly notified by the plaintiff or an interested party, continues the infringing conduct;

(2) where the defendant, or his/her/its legal representative or manager is the legal representative, manager, or actual controller of the plaintiff or an interested party, and knew or should have known of the infringed intellectual property rights;

(3) where the defendant has an employment, labor service, cooperation, licensing, distribution, agency, representative, or any other relationship with the plaintiff or an interested party, and has had access to the infringed intellectual property rights based on the aforementioned relationship;

(4) where the defendant has business dealings with, or has engaged in negotiations for reaching a contract, etc, with the plaintiff or an interested party, and has had access to the infringed intellectual property rights based on the aforementioned relationship;

(5) where defendant engages in piracy, counterfeiting of registered trademarks or counterfeiting others’ patents;

(6) where the defendant, after reaching a settlement with the plaintiff and agreeing to cease the infringement, commits the same or similar infringing conduct again;

(7) where the defendant conceals the actual controlling relationship by establishing affiliated companies, changing legal representatives or controlling shareholders, operating through nominee companies, or other means, or signing liability waivers in order to evade legal liability for infringing the intellectual property rights at issue;

(8) Other circumstances that may be considered willful.

Article 7

For the determination of serious circumstance of intellectual property infringement, the people's court shall comprehensively consider factors such as the means and frequency of the infringement, the duration, geographical scope, scale and consequences of the infringing act, and the infringer’s awareness of and basic attitude towards the infringement.

Where the defendant falls under any of the following circumstances, the people's court shall determine that the circumstance is serious:

(1) Committing the same or similar infringing act again after having been administratively punished or held legally liable by a court judgment for infringement;

(2) Refusing to fulfill a preservation order without justifiable reason;

(3) Forging, destroying or concealing evidence of infringement;

(4) Committing infringement of intellectual property rights as a business, such as by taking infringing acts as its principal business activity, or relying on infringement gain as its principal source of profit;

(5) Making enormous profits from the infringement or causing serious damage to the rights holder’s goodwill, market share, etc.;

(6) Endangering or possibly endangering national interests or the public interest with the infringing act;

(7) Other circumstances that should be considered as serious.

Article 8

When determining the amount of punitive damages, the people's court shall, in accordance with relevant laws, take the amount of the plaintiff’s actual losses, the amount of the defendant’s illegal gains or the benefits obtained due to the infringement as the calculation basis. Calculation basis does not include the reasonable expenses paid by the plaintiff to stop the infringement; Where the law provides otherwise, such provisions shall prevail.

If the amount of actual loss, the amount of illegal gains or the benefits obtained due to the infringement are all difficult to calculate, the people's court shall reasonably determine the basis for calculating the amount of the punitive damages by reference to the license fee for the right in accordance with the law.

The statutory damages cannot serve as the basis for calculating the amount of punitive damages.

Article 9
Where the defendant’s illegal gains or profits from infringement are used as the basis for calculating punitive damages, the basis may be determined by reference to the operating profits. Where the defendant engages in intellectual property infringement as a business, the basis may be determined by reference to the sales profits. Where the profit margin cannot be determined, the calculation may be made by reference to the average profit margin in the same industry during the same period published by statistical authorities or industry associations, etc., or the profit margin of the right holder.

Article 10

If the people's court, in accordance with the law, orders the defendant to provide account books and materials, etc., relating to the infringing act that are in the control of the defendant, but the defendant refuses to provide them without justifiable reasons or provides false books and materials, etc., the people's court may, in accordance with the law, determine the calculation basis for punitive damages based on the plaintiff’s claims and evidences on file. Where the circumstances fall under Article 114 of the Civil Procedure Law, legal liability shall be pursued in accordance with the law. Where the law provides otherwise, such provisions shall prevail.

Article 11

When determining the multiplier of punitive damages, the people's court shall comprehensively consider factors such as the degree of the defendant’s subjective fault and the seriousness of the infringement. The multiplier of punitive damages shall be determined within the statutory range and may not necessarily be an integer.

Article 12

The total amount of damages determined by the people’s court through the application of punitive damages shall not exceed five times the calculation basis. Reasonable expenses paid by the right holder to stop the infringement shall be calculated separately from this total amount.

Article 13

Where, for the same infringing act, the defendant has already been imposed to an administrative fine or a criminal fine that has been fully enforced, the people’s court shall take this into account when determining the multiplier of punitive damages.

Article 14

This interpretation shall come into force on May 1, 2026.

Postscript

Upon the implementation of this interpretation, the “Interpretation of the Supreme People’s Court on the Application of Punitive Damages in the Trial of Civil Cases over Intellectual Property Infringement”(Judicial Interpretation [2021]No.4) shall be repealed simultaneously.

For cases where a final judgment has been rendered before the implementation of this interpretation, if a party applies for retrial or a retrial is ordered under the trial supervision procedure after the implementation of this interpretation, this interpretation shall not apply.

This is a reference translation prepared by Shangcheng.

©2026　北京尚誠知識産権代理有限公司　

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Copyright Law of the People(amended up to Nov. 11, 2020)

(Adopted at the 15th Meeting of the Standing Committee of the Seventh National People's Congress on September 7, 1990; amended for the first time in accordance with the Decision on Amending the Copyright Law of the People's Republic of China at the 24th Meeting of the Standing Committee of the Ninth National People's Congress on October 27, 2001; amended for the second time in accordance with the Decision on Amending the Copyright Law of the People's Republic of China at the 13th Meeting of the Standing Committee of the Eleventh National People's Congress on February 26, 2010; and amended for the third time in accordance with the Decision on Amending the Copyright Law of the People's Republic of China at the 23rd Meeting of the Standing Committee of the Thirteenth National People's Congress on November 11, 2020)

Contents

Chapter I General Provisions

Chapter II Copyright

Section 1 Copyright Owners and Their Rights

Section 2 Ownership of Copyright

Section 3 Term of Protection of Rights

Section 4 Limitations on Rights

Chapter III Copyright Licensing and Transfer Contracts

Chapter IV Copyright-related Rights

Section 1 Publication of Books, Newspapers and Periodicals

Section 2 Performance

Section 3 Sound Recording and Video Recording

Section 4 Broadcasting by a Radio Station or Television Station

Chapter V Protection of Copyright and Copyright-related Rights

Chapter VI Supplementary Provisions

Chapter I

General Provisions

Article 1 This Law is enacted, in accordance with the Constitution, for the purpose of protecting the copyright of authors in their literary, artistic and scientific works and the rights and interests related to copyright, encouraging the creation and dissemination of works conducive to the building of a socialist society that is advanced ethically and materially, and promoting the development and flourishing of socialist culture and sciences.

Article 2 Works of Chinese citizens, legal persons or unincorporated organizations, whether published or not, shall have copyright in accordance with this Law.

The copyright enjoyed by foreigners or stateless persons in any of their works under an agreement concluded between China and the country to which the authors belong or in which they have their habitual residences, or under an international treaty to which both countries are parties, shall be protected by this Law.

Any work of foreigners and stateless persons published for the first time within the territory of China shall have copyright in accordance with this Law.

Any work of an author from a country that has not concluded any agreement with China or does not join an international treaty to which China is a party and any work of a stateless person, which is published for the first time in a member country of an international treaty to which China is a party, or simultaneously published in a member country of the treaty and in a non-member country, shall be protected by this Law.

Article 3 For purposes of this Law, the term "works" means intellectual achievements in the fields of literature, art and science, which are original and can be expressed in a certain form, including:

(1) written works;

(2) oral works;

(3) musical, dramatic, quyi, choreographic and acrobatic art works;

(4) works of the fine arts and architecture;

(5) photographic works;

(6) audiovisual works;

(7) graphic works such as drawings of engineering designs, product designs, maps and sketches, and model works;

(8) computer software; and

(9) other intellectual achievements conforming to the characteristics of the works.

Article 4 Copyright owners and copyright-related right owners may not violate the Constitution and laws, and may not harm public interests when exercising their rights. The State shall supervise and administrate the publication and dissemination of works in accordance with the law.

Article 5 This Law shall not apply to:

(1) laws and regulations, resolutions, decisions and orders of State organs, other documents of a legislative, administrative or judicial nature and the official translations thereof;

(2) mere information about facts or happenings; and

(3) calendars, numerical tables and forms of general use, and formulas.

Article 6 Measures for the protection of copyright in works of folk literature and art shall be formulated separately by the State Council.

Article 7 The competent department of copyright of the State shall be responsible for the administration of copyright nationwide; the local competent departments of copyright at or above the county level shall be responsible for the administration of copyright in their respective administrative areas.

Article 8 Copyright owners and copyright-related right owners may authorize collective administration organizations of copyrights to exercise their copyright or copyright-related rights. A collective administration organization of copyrights established in accordance with the law is a not-for-profit legal person, which may, upon authorization, claim rights in its own name for the copyright owners or the copyright-related right owners and participate as a party in litigation, arbitration or mediation activities concerning the copyright or copyright-related rights.

Collective administration organizations of copyrights shall collect royalties from users based on the authorization. The standard for the collection of royalties shall be determined by the collective administration organizations of copyrights and representatives of the users through consultation; if consultation fails, the parties may file an application to the competent department of copyright of the State for a ruling; if the said parties are not satisfied with the ruling, they may bring a lawsuit in the people's court, or the parties may directly bring a lawsuit in the people's court.

Collective administration organizations of copyrights shall regularly publicize to the public the collection and transfer of royalties, the withdrawal and use of management fees, and undistributed royalties and other overall situation, and establish a rights information inquiry system for the inquiry of right owners and users. The competent department of copyright of the State shall supervise and administrate the collective administration organizations of copyrights in accordance with the law.

The way to establish collective administration organizations of copyrights, their rights and obligations, collection and distribution of royalties, and supervision and administration of them shall be prescribed separately by the State Council.

Chapter II

Copyright

Section 1

Copyright Owners and Their Rights

Article 9 Copyright owners include:

(1) authors; and

(2) other natural persons, legal persons and unincorporated organizations enjoying copyright in accordance with this Law.

Article 10 Copyright includes the following personal rights and property rights:

(1) 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, rubbing, sound recording, video recording, ripping, duplicating a photographic work, digitizing, or by other means;

(6) the right of distribution, that is, the right to provide the original copy or reproduced copies of a work to the public by sale or donation;

(7) the right of rental, that is, the right to non-gratuitously permit others to temporarily use an audiovisual work, or the original or copies of a computer software, except where the software itself is not the main object of the lease;

(8) the right of exhibition, that is, the right to publicly display the original copy or reproduced copies of a work of fine arts or of a photographic work;

(9) the right of performance, that is, the right to publicly perform a work, and to publicly communicate the performance of a work by various means;

(10) the right of projection, that is, the right to publicly reproduce works of fine arts,

photographic works, audiovisual works, or other works, by a projector, slide projector or any other technical equipment;

(11) the right of broadcasting, that is, the right to publicly disseminate or rebroadcast works by wire or by wireless means, and to disseminate broadcast works to the public by loudspeaker or any other similar instruments for transmitting signs, sounds or images, but excluding the right mentioned in Subparagraph (12) of this paragraph;

(12) the right of communication through information network, that is, the right to make a work available to the public by wire or by wireless means, so that the public may have access to the work at time and place chosen by them;

(13) the right of cinematography, that is, the right to fix a work on the medium by producing an audiovisual work;

(14) the right of adaptation, that is, the right to modify a work to create a new one with originality;

(15) the right of translation, that is, the right to transform the work from one language into another language;

(16) the right of compilation, that is, the right to compile, by selection or arrangement, the works or fragments of works into a new work; and

(17) other rights which shall be enjoyed by the copyright owners.

Copyright owners may authorize others to exercise the rights provided in Subparagraphs (5) to (17) of the preceding paragraph and receive remuneration in accordance with the agreements or the relevant provisions of this Law.

Copyright owners may transfer, wholly or in part, the rights provided in Subparagraphs (5) to (17) of the first paragraph of this Article and receive remuneration in accordance with the agreements or the relevant provisions of this Law.

Section 2

Ownership of Copyright

Article 11 Unless otherwise provided by this Law, the copyright in a work shall belong to its author.

The author of a work is a natural person who creates the work.

Where a work is created under the auspices of, representing the will, and under the responsibility of a legal person or unincorporated organization, such a legal person or unincorporated organization shall be deemed the author of the work.

Article 12 The natural person, legal person or unincorporated organization whose name is affixed to a work shall be the author of the work and have corresponding rights in the work, unless there is proof to the contrary.

Authors and other copyright owners may register their works with the registration organs recognized by the competent department of copyright of the State.

The provisions of the preceding two paragraphs shall apply mutatis mutandis to the copyright-related rights.

Article 13 The copyright of a work created by adaptation, translation, annotation or arrangement of a preexisting work shall be enjoyed by the adapter, translator, annotator or arranger, provided that the exercise of such copyright does not infringe upon the copyright in the original work.

Article 14 Where a work is created jointly by two or more authors, the copyright in the work shall be enjoyed jointly by the co-authors. A person who does not participate in the creation shall not be a co-author.

The copyright of a joint work shall be exercised by the co-authors through consensus;

where consensus cannot be reached and there are no justifiable reasons, no party shall prevent the other parties from exercising rights other than transferring, permitting others' exclusive use of and pledging the copyright, but the proceeds obtained shall be reasonably distributed to all co-authors.

Where a joint work can be used separately, each co-author may be entitled to independent copyright in the part that he creates, provided that the exercise of such copyright does not infringe upon the copyright in the joint work as a whole.

Article 15 A work created by compilation of several works, fragments of works or of data or other materials which do not constitute a work is a compilation when the selection or arrangement of the contents thereof reflect the originality. The copyright in such compilation shall be enjoyed by the compiler, provided that the exercise of such copyright does not infringe upon the copyright in the original works.

Article 16 Whoever use a work created by adaptation, translation, annotation, arrangement or compilation of a preexisting work for publication, performance, or production of a sound or video recording, shall obtain permission from and pay remuneration to the copyright owner of the work and the copyright owner of the original work.

Article 17 The copyright of a cinematographic work or a television play work, which are audiovisual works, shall be enjoyed by the producer, but the scriptwriter, director, cameraman, lyricist, composer and other authors shall enjoy the right of authorship and shall be entitled to remuneration in accordance with the contracts concluded with the producer.

The ownership of the copyright in audiovisual works other than those prescribed in the preceding paragraph shall be agreed upon by the parties concerned; where there is no agreement or the agreement is unclear, the copyright shall be enjoyed by the producer, but the author shall enjoy the right of authorship and the right to remuneration. The authors of the scripts, music and other audiovisual works that may be used separately shall be entitled to exercise their copyright separately.

Article 18 A work created by a natural person in the fulfillment of tasks assigned to him by a legal person or unincorporated organization is a work for hire. Unless otherwise provided in the second paragraph of this Article, the copyright in such a work shall be enjoyed by the author; but the legal person or unincorporated organization shall have priority to use the work within the scope of its professional activities. Within two years after the completion of the work, the author shall not, without the consent of the legal person or unincorporated organization, authorize a third party to use the work in the same manner as the legal person or unincorporated organization does.

In any of the following cases, the author of a work for hire shall enjoy the right of authorship, while the legal person or unincorporated organization shall enjoy other rights included in the copyright and may reward the author:

(1) drawings of engineering designs and product designs, maps, sketch maps, computer software and other works for hire which are created mainly with the material and technical resources of the legal person or unincorporated organization and under its responsibility;

(2) works for hire created by employees of newspaper, periodical presses, news agencies, radio stations and television stations; or

(3) works for hire of which the copyright is enjoyed by the legal person or unincorporated organization in accordance with laws, administrative regulations or contracts.

Article 19 The ownership of the copyright in a commissioned work shall be stipulated in a contract between the commissioning party and the commissioned party. Where there is no explicit stipulation in the contract or no contract is concluded, the copyright in such a work shall belong to the commissioned party.

Article 20 The transfer of ownership of the original work shall not change ownership of the copyright of the work, but the right to exhibit the original work of fine art or of a photographic work shall be enjoyed by the owner of the original work.

Where an author transfers the ownership of the original copy of an unpublished work of fine art or photographic work, the transferee's exhibition of the original copy does not constitute an infringement upon the author's right of publication.

Article 21 Where the copyright in a work belongs to a natural person, his rights in respect of the work as provided in Subparagraphs (5) to (17) of the first paragraph of Article 10 of this Law shall, after his death and during the term of protection provided in this Law, be transferred in accordance with the law.

Where the copyright of a work belongs to a legal person or unincorporated organization, the rights provided in Subparagraphs (5) to (17) of the first paragraph of Article 10 of this Law shall, after the change or termination of the status of the legal person or unincorporated organization and during the term of protection provided in this Law, be enjoyed by the succeeding legal person or unincorporated organization which takes over its rights and obligations; where there is no succeeding legal person or unincorporated organization to take over the said legal person or unincorporated organization's rights and obligations, the copyright shall be enjoyed by the State.

Section 3

Term of Protection of Rights

Article 22 The term of protection of an author's right of authorship, alteration and integrity shall be unlimited.

Article 23 In respect of a work of a natural person, the term of protection for the right of publication and the rights as provided in Subparagraphs (5) to (17) of the first paragraph of Article 10 of this Law shall be the life of the author and fifty years after his death, expiring on December 31 of the fiftieth year after his death. In the case of a joint work, the term shall expire on December 31 of the fiftieth year after the death of the last surviving author.

For a work of a legal person or unincorporated organization, and a work for hire whose copyright (excluding the right of authorship) is enjoyed by a legal person or unincorporated organization, the term of protection for the right of publication shall be fifty years, expiring on December 31 of the fiftieth year after the completion of its creation; and the term of protection for the rights as provided in Subparagraphs (5) to (17) of the first paragraph of Article 10 of this Law shall be fifty years, expiring on December 31 of the fiftieth year after the first publication of such a work; but if a work is not published within fifty years after the completion of its creation, it shall no longer be protected by this Law.

For an audiovisual work, the term of protection for the right of publication shall be fifty years, expiring on December 31 of the fiftieth year after the completion of its creation; and the term of protection for the rights as provided in Subparagraphs (5) to (17) of the first paragraph of Article 10 of this Law shall be fifty years, expiring on December 31 of the fiftieth year after the first publication of such a work; but if a work is not published within fifty years after the completion of its creation, it shall no longer be protected by this Law.

Section 4

Limitations on Rights

Article 24 In the following cases, a work may be used without permission of, and without payment of remuneration to the copyright owner, provided that the name or appellation of the author and the title of the work are indicated, the normal use of the work is not affected and the legitimate rights and interests enjoyed by the copyright owner are not unreasonably prejudiced:

(1) use of a published work of another for purposes of personal study, research or appreciation;

(2) appropriate quotation from a published work of another in one's own work for the purpose of introducing or commenting a certain work, or illustrating a point;

(3) unavoidable reproduction or quotation from a published work in newspapers, periodicals, radio stations, television stations or other media for the purpose of reporting news;

(4) publication or broadcasting by newspapers, periodicals, radio stations, television stations or other media of current event articles on issues of politics, economy and religion, which have been published by other newspapers or periodicals, or broadcast by other radio stations or television stations, except where the copyright owner declares that such publication or broadcasting is not permitted;

(5) publication or broadcasting by newspapers, periodicals, radio stations, television stations or other media of a speech delivered at a public gathering, except where the author declares that such publication or broadcasting is not permitted;

(6) translation, adaptation, compilation, broadcasting, or reproduction in a small quantity of copies, of a published work by teachers or scientific researchers for use in classroom teaching or scientific research, provided that such a work shall not be published or distributed;

(7) use of a published work by a State organ to a reasonable scope 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, cultural center or similar institution for the purpose of display, or preservation of a copy of the work;

(9) free performance of a published work for non-profit purposes, for which the public does not pay any fees and no remuneration is made to the performers;

(10) copying, drawing, photographing or video-recording of a work of art put up or displayed in public places;

(11) translation of a published work of a Chinese citizen, legal person or unincorporated organization from the standard spoken and written Chinese language into minority nationality languages for publication and distribution in the country;

(12) provision of published works to dyslexics in a barrier-free way through which they can perceive; and

(13) other circumstances as provided by laws and administrative regulations.

The provisions of the preceding paragraph shall apply to the copyright-related rights.

Article 25 Those who compile and publish textbooks for the purpose of implementing compulsory education or State education planning may, without permission of copyright owners, compile published fragments of works, short written works, musical works, a single work of fine art, photographic works, or graphic works in the textbooks, but shall pay remunerations to copyright owners according to the provisions, and indicate the names or appellations of authors and titles of works, and shall not infringe upon other rights enjoyed by the copyright owners in accordance with this Law.

The provisions of the preceding paragraph shall apply to the copyright-related rights.

Chapter III

Copyright Licensing and Transfer Contracts

Article 26 Anyone who uses a work of another shall conclude a licensing contract with the copyright owner, except where no license is required as provided in this Law.

A licensing contract shall include the following main contents:

(1) types of rights licensed for use;

(2) the exclusive or non-exclusive nature of the right to exploit the work covered by the license;

(3) territorial scope and the term of the license;

(4) rates of remuneration and the means of payment;

(5) liability for breach of contract; and

(6) other contents that both parties deem necessary to be agreed upon.

Article 27 Anyone who transfers any of the rights provided in Subparagraphs (5) to (17) of the first paragraph of Article 10 of this Law shall conclude a written contract.

A copyright transfer contract shall include the following main contents:

(1) title of the work;

(2) type and territorial scope of the transferred right;

(3) transfer fee;

(4) date and means of payment of the transfer fee;

(5) liability for breach of contract; and

(6) other contents that both parties deem necessary to be agreed upon.

Article 28 Where property rights under a copyright are pledged, both the pledger and the pledgee shall undergo pledge registration in accordance with the law.

Article 29 Without the consent of the copyright owner, the other party may not exercise any right that the copyright owner has not explicitly licensed or transferred in the licensing and transfer contract.

Article 30 The remuneration standards for the use of a work may be agreed upon by the parties and may also be paid in accordance with the standards fixed by the competent department of copyright of the State in conjunction with the relevant departments. Where the agreement between the parties is unclear, the remuneration shall be paid in accordance with the standards fixed by the competent department of copyright of the State in conjunction with the relevant departments.

Article 31 Publishers, performers, producers of sound and video recordings, radio stations, television stations and other entities that use works of others in accordance with the relevant provisions of this Law may not infringe upon the rights of authorship, alteration, and integrity, and the right to remuneration of the authors.

Chapter IV

Copyright-related Rights

Section 1

Publication of Books, Newspapers and Periodicals

Article 32 To publish a book, the book publisher shall conclude a publishing contract with and pay remuneration to the copyright owner.

Article 33 With respect to a work delivered to a book publisher by the copyright owner for publication, the exclusive right to publish the work enjoyed by the book publisher as stipulated in the contract shall be protected by law, and the work may not be published by others.

Article 34 A copyright owner shall deliver the work within the term stipulated in the contract. A book publisher shall publish the work in compliance with the publication quality and time limit as stipulated in the contract.

A book publisher that fails to publish the work within the time limit as stipulated in the contract shall bear civil liability according to the provisions of Article 61 of this Law.

Where a book publisher reprints or republishes a work, it shall notify and pay remuneration to the copyright owner. Where the publisher refuses to reprint or republish the work after the stock of books is exhausted, the copyright owner has the right to terminate the contract.

Article 35 Where a copyright owner has submitted the manuscript of his work to a newspaper or periodical publisher for publication and has not received any notification of the said newspaper's or publisher's decision to publish the work within 15 days from the newspaper or within 30 days from the periodical publisher, counted from the date of submission of the manuscript, the copyright owner may submit the manuscript of the same work to another newspaper or periodical publisher for publication, unless otherwise agreed by the parties.

Except where the copyright owner declares that no reprinting or excerpting of his work is permitted, other newspaper or periodical publishers may, after the work is published by a newspaper or periodical publisher, reprint the work or print an abstract of it or print it as reference material, but shall pay remuneration to the copyright owner according to the provisions.

Article 36 A book publisher may, with the permission of the author, modify or abridge the work.

A newspaper or periodical publisher may make editorial modifications and abridgments in the language of a work. Any modification in the contents of the work shall be subject to permission of the author.

Article 37 A publisher shall be entitled to license others to use or prohibit others from using the format design of a book or periodical it has published.

The term of protection for the right specified in the preceding paragraph shall be ten years, expiring on December 31 of the tenth year after the first publication of the book or periodical in which the format design is used.

Section 2

Performance

Article 38 A performer who uses, for a performance, a work created by another shall obtain permission from and pay remuneration to the copyright owner. Where a performance organizer organizes a performance, the organizer shall obtain permission from and pay remuneration to the copyright owner.

Article 39 A performer shall, in respect of his performance, enjoy the following rights:

(1) to claim performership;

(2) to protect his performance image from distortion;

(3) to permit others to make live broadcasts or to publicly transmit his live performance, and receive remuneration therefor;

(4) to permit others to make sound and video recordings, and receive remuneration therefor;

(5) to permit others to reproduce, distribute and lease the sound and video recordings of his performance, and receive remuneration therefor; and

(6) to permit others make his performance available to the public through information network, and receive remuneration therefor.

A licensee that is permitted to use a work in the manner provided in Subparagraphs (3) to (6) of the preceding paragraph shall, in addition, obtain permission from and pay remuneration to the copyright owner.

Article 40 A performance by a performer for the purpose of accomplishing the tasks assigned by his performing entity is a performance for hire, in which the performer shall enjoy the rights to claim performership and to protect his performance image from distortion, and the ownership of other rights shall be agreed upon by the parties. Where the parties have not reached an agreement or the agreement is unclear, the right to performance for hire shall be enjoyed by the performing entity.

Where the right to performance for hire is enjoyed by performers, the performing entity may use the performance free of charge within the scope of its business.

Article 41 The term of protection for the rights provided in Subparagraphs (1) and (2) of the first paragraph of Article 39 of this Law shall not be limited.

The term of protection for the rights provided in Subparagraphs (3) to (6) of the first paragraph of Article 39 of this Law shall be fifty years, expiring on December 31 of the fiftieth year after the performance takes place.

Section 3

Sound Recording and Video Recording

Article 42 A producer of sound recordings or video recordings that uses, for making a sound recording or video recording, a work created by another shall obtain permission from and pay remuneration to the copyright owner.

A producer of sound recordings that uses, for making a sound recording, a musical work which has been lawfully recorded as a sound recording by another, may do so without obtaining permission from the copyright owner, but shall pay remuneration to the copyright owner according to the provisions; such a work shall not be used where the copyright owner declares that such use is not permitted.

Article 43 When making a sound recording or video recording of a performance, the producer shall conclude a contract with and pay remuneration to the performer.

Article 44 The producer of sound recordings or video recordings shall enjoy the right to permit others to reproduce, distribute or lease the sound recordings or video recordings and disseminate them to the public through information network and to receive remuneration therefor. The term of protection for such right shall be fifty years, expiring on December 31 of the fiftieth year after the completion of the recording for the first time.

A licensee that reproduces, distributes, and disseminates sound recordings or video recordings to the public through information network shall obtain permission from and pay remuneration to both the copyright owner and the performer; a licensee that leases sound recordings or video recordings shall also obtain permission from, and pay remuneration to the performer.

Article 45 Where sound recordings are disseminated through wired or wireless means, or broadcast to the public through technical equipment for transmitting sound, remuneration shall be paid to the sound recording producer.

Section 4

Broadcasting by a Radio Station or Television Station

Article 46 A radio station or television station that broadcasts an unpublished work created by others shall obtain permission from and pay remuneration to the copyright owners.

A radio station or television station that broadcasts a published work created by others do not need to obtain permission from the copyright owners, but shall pay remuneration to the copyright owners according to the provisions.

Article 47 A radio station and television station shall have the right to prohibit the following acts performed without its permission:

(1) rebroadcasting the radio or television programs broadcast by it by wire or by wireless means;

(2) recording and reproducing the radio or television programs broadcast by it; and

(3) disseminating the radio or television programs broadcast by it to the public through information network.

The exercise of the rights prescribed in the preceding paragraph by a radio station and television station shall not affect, restrict or prejudice others' exercise of copyright or copyright-related rights.

The term of protection for the rights prescribed in the first paragraph of this Article shall be fifty years, expiring on December 31 of the fiftieth year after the broadcasting of a radio or television program for the first time.

Article 48 A television station that broadcasts audiovisual works or video recordings produced by others shall obtain permission from and pay remuneration to the copyright owners of the audiovisual works or the video producers; in the case of broadcasting video recordings produced by others, the television station shall also obtain permission from and pay remuneration to the copyright owners.

Chapter V

Protection of Copyright and Copyright-related Rights

Article 49 In order to protect copyright and copyright-related rights, the right owner may take technical measures.

Without permission of the right owner, no organization or individual shall intentionally circumvent or destroy the technological measures, or manufacture, import or provide the relevant devices or components to the public for the purpose of circumventing or destroying the technological measures, or intentionally provide technical services for others to circumvent or destroy the technological measures, except for the circumstances under which such circumvention is permitted by laws or administrative regulations.

For the purposes of this Law, the term "technological measures" refers to the effective technologies, devices, or components that are used to prevent or restrict the viewing or appreciation of works, performances, sound and video recordings, or the provision of works, performances, sound and video recordings to the public through information network without the permission of the right owners.

Article 50 Technological measures may be circumvented under the following circumstances, provided that technologies, devices or components used to circumvent technological measures are not provided to others, and that other rights enjoyed by the right owners in accordance with the law are not infringed:

(1) providing a small amount of published works to teachers or scientific researchers for use in classroom teaching or scientific research, in the case that such works are not accessible through normal channels;

(2) providing, not for profit, published works to dyslexics in a barrier-free way through which they can perceive, in the case that such works are not accessible through normal channels;

(3) fulfillment of official duties by a State organ in accordance with the administrative, supervisory and judicial procedures;

(4) testing the security performance of computers and their systems or networks; and

(5) conducting encryption research or research on reverse engineering of computer software.

The provisions of the preceding paragraph shall apply to restrictions on copyright-related rights.

Article 51 The following acts shall not be carried out without permission of the right owner:

(1) intentionally deleting or altering the rights management information on works, format designs, performances, sound or video recordings, or radio or television programs, except for those which cannot be avoided due to technical reasons; and

(2) making available to the public works, format designs, performances, sound or video recordings, or radio or television programs when the provider knows or should know that the rights management information attached thereto has been deleted or altered without permission.

Article 52 Anyone who commits any of the following infringing acts shall, depending on the circumstances, bear civil liability such as ceasing the infringement, eliminating the effects of the act, making an apology or paying compensation for loss:

(1) publishing a work without permission of the copyright owner;

(2) publishing a work of joint authorship as a work created solely by oneself, without permission of the other co-authors;

(3) having one's name mentioned in another's work, without participating in the creation of the work in order to seek personal fame and gain;

(4) distorting or tampering with works of others;

(5) plagiarizing works of others;

(6) using a work by means of exhibition or production of an audiovisual work, or by means of adaptation, translation, annotation or similar means without permission of the copyright owner, unless otherwise provided in this Law;

(7) using a work of another without paying remuneration as one should;

(8) leasing an audiovisual work, computer software, or the original or a copy of a sound or video recording, without permission of the copyright owner, the performer or the producer of the recording, unless otherwise provided in this Law;

(9) using the format design of a published book or periodical, without permission of the publisher;

(10) live broadcasting, publicly transmitting or recording a performance, without permission of the performer; or

(11) committing other acts infringing upon the copyright and the copyright-related rights.

Article 53 Anyone who commits any of the following infringing acts shall, depending on the circumstances, bear civil liability prescribed in Article 52 of this Law; where public rights and interests are concurrently impaired by the infringement, the competent department of copyright shall order the infringer to stop infringement, give him a warning, confiscate his unlawful gains, and confiscate and harmlessly destroy the infringing copies and the materials, tools and instruments mainly used to produce the infringing copies, and may, where the illegal turnover exceeds 50,000 yuan, concurrently impose a fine of not less than one time but not more than five times the illegal turnover; where there is no illegal turnover or the illegal turnover is difficult to calculate or is less than 50,000 yuan, a fine of not more than 250,000 yuan may be imposed concurrently; where a crime is constituted, criminal liability shall be investigated in accordance with the law:

(1) without permission of the copyright owner, reproducing, distributing, performing, projecting, broadcasting, compiling a work or disseminating a work to the public through information network, unless otherwise provided in this Law;

(2) publishing a book whose exclusive right of publication is enjoyed by another;

(3) without permission of the performer, reproducing or distributing sound or video recordings of his performance, or making the performance available to the public through information network, unless otherwise provided in this Law;

(4) without permission of the producer, reproducing, distributing, disseminating sound or video recordings produced by him to the public through information network, unless otherwise provided in this Law;

(5) without permission, broadcasting, reproducing or disseminating radio or television programs to the public through information network, unless otherwise provided in this Law;

(6) without permission of the copyright owner or copyright-related right owner, intentionally circumventing or destroying the technological measures, intentionally manufacturing, importing or providing to others the devices or components mainly used for the purpose of circumventing or destroying the technological measures, or intentionally providing technical services to others to circumvent or destroy the technological measures, unless otherwise provided in laws or administrative regulations;

(7) without permission of the copyright owner or copyright-related right owner, intentionally deleting or altering the rights management information on works, format designs, performances, sound or video recordings, or radio or television programs, or disseminating to the public the works, format designs, performances, sound or video recordings, or radio or television programs when the provider knows or should know that the rights management information has been deleted or altered, unless otherwise provided in laws or administrative regulations; or

(8) producing or selling a work the authorship of which is counterfeited.

Article 54 In case of infringement upon the copyright or the copyright-related rights, the infringer shall make compensation on the basis of the actual loss suffered by the right owner or based on the illegal gains of the infringer; where the actual loss of the right owner or the illegal gains of the infringer are difficult to be calculated, compensation may be made by reference to the amount of royalties for that right. In case of intentional infringement upon the copyright or the copyright-related rights, if the circumstances are serious, compensation may be made not less than one time but not more than five times the amount determined according to the abovementioned methods.

Where the actual loss of the right owner, the illegal gains of the infringer or the royalties are difficult to be calculated, the people's court shall, in light of the circumstances of the infringement, decide on a compensation not less than 500 yuan but not more than 5,000,000 yuan.

The amount of compensation shall also include the reasonable expenses paid by the right owner for stopping infringement.

Where the right owner has met the necessary burden of proof in order to determine the amount of compensation, the people's court may order the infringer to provide the account books and materials related to the infringing act in the case that the account books and materials are mainly in the control of the infringer; if the infringer refuses to provide or provides the false account books and materials, the people's court may determine the amount of compensation by reference to the claims and evidence provided by the right owner.

When trying a case concerning a copyright dispute, the people's court shall, at the request of the right owner, order the destruction of the infringing copies, except in special circumstances; order the destruction of the material, tools and instruments mainly used to produce infringing copies without compensation; or in special circumstances, the prohibition of the aforesaid material, tools and instruments, among others, from entering commercial channels without compensation.

Article 55 When investigating and dealing with the acts suspected of infringing upon copyright and copyright-related rights, the competent department of copyright may question the parties and investigate the circumstances related to the suspected illegal acts; conduct on-site inspections of the premises and articles involved in the suspected illegal acts; consult and duplicate contracts, invoices, account books and other materials related to the suspected illegal acts; and seal up or seize the premises and articles involved in the suspected illegal acts.

When the competent department of copyright exercises the functions and powers prescribed in the preceding paragraph in accordance with the law, the parties shall assist and cooperate, and shall not refuse or obstruct the exercise of such functions and powers.

Article 56 Where a copyright owner or a copyright-related right owner has evidence to prove that another person is committing, or is about to commit, an infringement upon his rights or an act hindering the realization of his rights, and failure to stop such acts in a timely manner will cause irreparable damage to his legitimate rights and interests, he may, before bringing a lawsuit, apply to a people's court in accordance with the law for taking such measures as preserving property, ordering performance of a specific act, or prohibiting a specific act.

Article 57 In order to prevent infringement, a copyright owner or a copyright-related right owner may, before bringing a lawsuit, apply to a people's court in accordance with the law for evidence preservation, where the evidence may be destroyed or lost or is difficult to be obtained later.

Article 58 When trying a case concerning the infringement upon copyright or the copyright-related rights, the people's court may confiscate the illegal gains, the infringing copies and money and property used for illegal activities.

Article 59 Where a publisher or producer of copies fails to prove that its publication or production is legally authorized, or a distributor of reproductions or a lessor of copies of an audiovisual work, computer software, sound recording or video recording fails to prove the legal source of the copies for distribution or lease, it shall bear legal liability.

During the litigation process, where the defendant-infringer claims that he is not liable for the infringement, he shall present evidence to prove that he has obtained the permission of the right owner, or that he falls under the circumstances under which use is allowed without permission of the right owner as provided in this Law.

Article 60 A copyright dispute may be settled through mediation, or be submitted to an arbitration institution for arbitration under a written arbitration agreement between the parties or under the arbitration clause in the copyright contract.

Where there is neither a written arbitration agreement between the parties nor an arbitration clause in the copyright contract, that parties may directly bring a lawsuit in a people's court.

Article 61 The provisions of the relevant laws shall apply where the parties bear civil liability for failure to perform contractual obligations or failure to perform contractual obligations in conformity with the agreement, and where the parties exercise their litigation rights or apply for preservation, etc.

Chapter VI

Supplementary Provisions

Article 62 The term "copyright" as mentioned in this Law shall have the same meaning as "author's right".

Article 63 The term "publication" as mentioned in Article 2 of this Law means reproduction and distribution of works.

Article 64 Measures for the protection of computer software and the right of communication through information network shall be formulated separately by the State Council.

Article 65 Where the protection period for photographic works, right of publication, and rights prescribed in Subparagraphs (5) to (17) of the first paragraph of Article 10 has expired before June 1, 2021, but they are still within the protection period according to the first paragraph of Article 23 of this Law, they shall no longer be protected.

Article 66 The rights of copyright owners, publishers, performers, producers of sound recordings and video recordings, radio stations and television stations as provided in this Law of which the term of protection specified in this Law has not yet expired on the date this Law goes into effect, shall be protected in accordance with this Law.

Any act of infringement or breach of contract committed prior to the implementation of this Law shall be dealt with according to the relevant provisions in force at the time when such an act of infringement or breach of contract was committed.

Article 67 This Law shall go into effect on June 1, 1991.

Source: WIPO https://www.wipo.int/wipolex/en/legislation/details/21065

The post Copyright Law of the People’s Republic of China (amended up to November 11, 2020) first appeared on 北京尚誠知識産権代理有限公司.

Patent Law of the People's Republic of China (amended up to October 17, 2020)

（Translation for Reference Only）

Updated: Oct 13,2022

(Adopted at the 4th Meeting of the Standing Committee of the Sixth National People's Congress on March 12, 1984; amended for the first time in accordance with the Decision on Amending the Patent Law of the People's Republic of China at the 27th Meeting of the Standing Committee of the Seventh National People's Congress on September 4, 1992; amended for the second time in accordance with the Decision on Amending the Patent Law of the People's Republic of China at the 17th Meeting of the Standing Committee of the Ninth National People's Congress on August 25, 2000; amended for the third time in accordance with the Decision on Amending the Patent Law of the People's Republic of China at the 6th Meeting of the Standing Committee of the Eleventh National People's Congress on December 27, 2008; amended for the fourth time in accordance with the Decision on Amending the Patent Law of the People's Republic of China at the 22nd Meeting of the Standing Committee of the Thirteenth National People's Congress on October 17, 2020)

Contents

Chapter I  General Provisions

Chapter II  Requirements for Granting Patent Rights

Chapter III  Applications for Patents

Chapter IV  Examination and Approval of Patent Applications

Chapter V  Terms, Termination and Invalidation of Patent Rights

Chapter VI  Special License for the Exploitation of a Patent

Chapter VII  Protection of Patent Rights

Chapter VIII  Supplementary Provisions

Chapter I

 General Provisions

Article 1. This Law is enacted to protect the lawful rights and interests of patentees, to encourage invention-creation, to promote the exploitation of invention-creation, to enhance innovation capability, and to promote the advancement of science and technology and the development of economy and society.

Article 2. For the purposes of this Law, "invention-creations" mean inventions, utility models and designs.

"Invention" means any new technical solution proposed for a product, a process or the improvement thereof.

"Utility model" means any new technical solution proposed for the shape, the structure, or their combination, of a product, which is fit for practical use.

"Design" means, with respect to an overall or partial product, any new design of the shape, the pattern, or their combination, or the combination of the colour with shape or pattern, which is rich in an aesthetic appeal and is fit for industrial application.

Article 3. The patent administration department under the State Council shall be responsible for the administration of the patent-related work throughout the country. It shall accept and examine patent applications in a uniform way, and grant patent rights in accordance with law.

The departments in charge of patent affairs under the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall be responsible for the administrative work concerning patents within their respective administrative areas.

Article 4. Where an invention-creation for which a patent is applied for relates to national security or other major interests of the State and confidentiality needs to be maintained, the patent application shall be handled in accordance with the relevant prescriptions of the State.

Article 5. No patent right shall be granted for any invention-creation that violates laws or social morality or that is detrimental to the public interests.

No patent right shall be granted for any invention-creation where the acquisition or utilization of the genetic resources, on which the development of the invention-creation relies, violates the provisions of laws or administrative regulations.

Article 6. An invention-creation that is accomplished in the course of performing the duties of an employee, or mainly by using the material and technical conditions of an employer, is a service invention-creation. For a service invention-creation, the right to apply for a patent belongs to the employer. After such application is approved, the employer shall be the patentee. The employer may, in accordance with the law, dispose of the right to apply for a patent for its service invention-creation and the patent right, thereby facilitating the exploitation and utilization of the relevant invention-creation.

For a non-service invention-creation, the right to apply for a patent belongs to the inventor or designer. After the application is approved, the inventor or designer shall be the patentee.

For an invention-creation that is accomplished by using the material and technical conditions of an employer, if the employer has concluded a contract with the inventor or designer providing the ownership of the right to apply for the patent or the ownership of the patent right, such provision shall prevail.

Article 7. No entity or individual may prevent the inventor or designer from filing a patent application for a non-service invention-creation.

Article 8. For an invention-creation accomplished by two or more entities or individuals in collaboration, or accomplished by an entity or an invention-creation accomplished 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 has accomplished the invention-creation, or to the entities or individuals that have accomplished the invention-creation in collaboration. After the application is approved, the entity(s) or individual(s) that has(have) filed the application shall be the patentee(s).

Article 9. For any identical invention-creation, only one patent right shall be granted. However, where the same applicant files applications for both a utility model patent and an invention patent with regard to the identical invention-creation on the same day, if the utility model patent granted earlier has not been terminated and the applicant declares to abandon the utility model patent, the invention patent may be granted.

If two or more applicants file patent applications for the identical invention-creation respectively, the patent right shall be granted to the applicant whose application was filed first.

Article 10. The right to file a patent application and a patent right may be transferred.

Where a Chinese entity or individual transfers the right to file a patent application or a patent right to a foreigner, a foreign enterprise or any other foreign organization, the transfer shall go through the formalities in accordance with the relevant laws and administrative regulations.

Where the right to file a patent application or a patent right is transferred, the parties concerned shall enter into a written contract and register it with the patent administration department under the State Council. The patent administration department under the State Council shall make an announcement about the registration. The transfer of the right to file a patent application or the patent right shall take effect as of the date of registration.

Article 11. After the grant of the patent for an invention or an utility model, except where otherwise provided for in this Law, no entity or individual may, without the authorization of the patentee, exploit the patentee's patent, that is, for production or business purposes, manufacture, 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.

After the grant of the patent for an design, no entity or individual may, without the authorization of the patentee, exploit the patentee's patent, that is, for production or business purposes, manufacture, offer to sell, sell or import the products incorporating the patentee's patented design.

Article 12. Any entity or individual exploiting the patent of another person shall enter into a license contract for exploitation with the patentee and pay the patentee a royalty 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, to exploit the patent.

Article 13. After the publication of an invention patent application, the applicant may require the entity or individual exploiting the said invention to pay an appropriate amount of royalties.

Article 14. Where the co-owners of the right to file a patent application or of the patent right have reached an agreement on the exercise of the right, the agreement shall prevail. In the absence of such an agreement, any co-owner may independently exploit the patent or license another person to exploit the patent through a non-exclusive license; any royalty for the exploitation obtained from licensing others to exploit the patent shall be distributed among the co-owners.

Except for the circumstances as provided for in the preceding paragraph, the exercise of the co-owned right to file a patent application or the co-owned patent right shall be subject to the consent of all co-owners.

Article 15. The entity that is granted a patent right shall reward the inventor or designer of a service invention-creation. After such patent is exploited, the entity shall pay the inventor or designer a reasonable remuneration based on the extent of spreading and application as well as the economic benefits yielded.

The State encourages the entity that is granted a patent right to implement property right incentives, by such means as offering of stocks, options, and dividends, so that the inventor or designer can reasonably share the benefits of innovation.

Article 16. The inventor or designer shall have the right to be named as such in the patent documents.

The patentee shall have the right to have his patent indication displayed on the patented product or on the package of that product.

Article 17. Where any foreigner, foreign enterprise or other foreign organization without a habitual residence or business office in China files a patent application in China, the application shall be handled under this Law in accordance with the agreements concluded between the country to which the applicant belongs and China, or in accordance with the international treaties to which both the countries are parties, or in accordance with this Law on the basis of the principle of reciprocity.

Article 18. Where any foreigner, foreign enterprise or other foreign organization without a habitual residence or business office in China files a patent application or handles other patent-related matters in China, he or it shall entrust a legally established patent agency with the application or such matters.

Where any Chinese entity or individual files a patent application or handles other patent-related matters in China, he or it may entrust a legally established patent agency with the application or such matters.

The patent agency shall abide by laws and administrative regulations, and handle patent applications and other patent-related matters as entrusted by its principals. In respect of the contents of the principal's invention-creations, except for those that have been published or announced for patent application, the agency shall be obligated to keep them confidential. The specific measures for administration of the patent agencies shall be formulated by the State Council.

Article 19. Where any entity or individual intends to file a patent application abroad in a foreign country for any an invention or utility model accomplished in China, it or he shall submit the matter to request the patent administration department under the State Council for confidentiality examination in advance. The procedures and duration etc. of the confidentiality examination shall be carried out in accordance with the regulations of the State Council.

Any Chinese entity or individual may file for an international patent application in accordance with the relevant international treaties to which the People's Republic of China is a party. If an applicant files an international patent application, he or it shall abide by the provisions of the preceding paragraph.

The patent administration department under the State Council shall deal with international patent applications in accordance with the relevant international treaties to which the People's Republic of China is a party, this Law and the relevant regulations of the State Council.

For an invention or utility model, if a patent application has been filed in a foreign country in violation of the provisions of the first paragraph of this Article, it shall not be granted a patent right while filing a patent application in China.

Article 20. The principle of good faith shall be followed when filing a patent application and exercising patent rights. The patent rights may not be abused to harm the public interests or the lawful rights and interests of others.

For any misuse of patent rights for eliminating or restricting competition, if it constitutes a monopolistic conduct, it shall be dealt with in accordance with the Anti-Monopoly Law of the People's Republic of China.

Article 21. The patent administration department under the State Council shall deal with any patent application and patent-related request in accordance with the law and in conformity with the requirements of objectivity, fairness, accuracy and timeliness.

The patent administration department under the State Council shall strengthen the construction of a public service system for patent-related information, release patent-related information in a complete, accurate, and timely manner, provide basic data of patents, and publish patent gazettes on a regular basis, in order to promote dissemination and utilization of patent information.

Prior to the publication or announcement of a patent application, the staff members of the patent administration department under the State Council and the related personnel shall be obligated to keep its contents confidential.

Chapter II

Requirements for Granting Patent Rights

Article 22. Any invention or utility model for which a patent right is to be granted shall meet the requirements of novelty, inventiveness and practical use.

Novelty means that, the invention or utility model does not form part of the prior art; no entity or individual has filed a patent application for the identical invention or utility model with the patent administration department under the State Council before the filing date and the content of the application is disclosed in patent application documents published or patent documents announced after the filing date.

Inventiveness means that, as compared with the prior art, the invention has prominent substantive features and represents an obvious progress, and that the utility model has substantive features and represents a progress.

Practical use means that, the invention or utility model can be manufactured or used and can produce positive results.

For the purpose of this Law, "the prior art" refers to any technology known to the public domestically and/or abroad before the filing date of patent application.

Article 23. Any design for which a patent right is to be granted shall not be a prior design; no entity or individual has filed a patent application for the identical design with the patent administration department under the State Council before the filing date and the content of the application is disclosed in patent documents announced after the filing date.

Any design for which a patent right may be granted shall significantly differ from a prior design or the combination of prior design features.

Any design for which a patent right is granted must not conflict with the lawful rights acquired by any other person before the filing date.

For the purpose of this Law, "a prior design" refers to any design known to the public domestically and/or abroad before the filing date.

Article 24. Within six months before the filing date, an invention-creation for which a patent application is filed does not lose its novelty under any of the following circumstances:

(1) where it was made public for the first time for the purpose of the public interests when a state of emergency or an extraordinary situation occurred in the country.

(2) where it was exhibited for the first time at an international exhibition sponsored or recognized by the Chinese Government;

(3) where it was published for the first time at a prescribed academic or technological conference;

(4) where its contents are divulged by another person without the consent of the applicant.

Article 25. No patent right shall be granted for any of the following:

(1) scientific discoveries;

(2) rules and methods for intellectual activities;

(3) methods for the diagnosis or treatment of diseases;

(4) animal and plant varieties;

(5) nuclear transformation methods and substances obtained by means of nuclear transformation;

(6) designs of two-dimensional printing goods, made of the pattern, the color or the combination of the two, which serve mainly as indicators.

The patent right may, in accordance with the provisions of this Law, be granted for the production methods of the products specified in Subparagraph (4) of the preceding paragraph.

Chapter III

Applications for Patents

Article 26. Where a patent application for an invention or utility model is filed, documents such as a request, a description and its abstract, and claims shall be submitted.

The request shall state the name of the invention or utility model, the name of the inventor, the name or title and the address of the applicant and other related matters.

The description shall contain a clear and comprehensive description of the invention or utility model so as to enable a person skilled in the relevant field of technology to carry it out; where necessary, drawings shall be attached to it. The abstract shall state briefly the main technical points of the invention or utility model.

The claims shall be based on the description and shall define the scope of the patent protection sought for in a clear and concise manner.

Where an invention-creation is accomplished by relying on genetic resources, the applicant shall indicate, in the patent application documents, the direct and original source of the genetic resources. Where the applicant fails to indicate the original source, he or it shall state the reasons thereof.

Article 27. Where a patent application for a design is filed, documents such as a request, drawings or photographs of the design and a brief description of the design shall be submitted.

The relevant drawings or photographs submitted by the applicant shall clearly indicate the design of the product for which patent protection is sought.

Article 28. The date on which the patent application documents are received by the patent administration department under the State Council shall be the filing date. If the application documents are delivered by post, the date of the postmark shall be the filing date.

Article 29. Where, within twelve months from the date on which any applicant first filed in a foreign country a patent application for an invention or utility model, or within six months from the date on which any applicant first filed in a foreign country a patent application for a design, he or it files in China a patent application for the same subject matter, he or it may enjoy the right of priority in accordance with the agreements concluded between the foreign country and China, or in accordance with the international treaties to which both countries are parties, or on the basis of the principle of mutual recognition of the right of priority.

Where, within twelve months from the date on which any applicant first filed in China a patent application for an invention or utility model, or within six months from the date on which any applicant first filed in China a patent application for a design, he or it files with the patent administration department under the State Council a patent application for the same subject matter, he or it may enjoy the right of priority.

Article 30. If any applicant claims the right of priority for an invention patent or a utility model patent, he or it shall make a written declaration when the patent application for an invention or utility model is filed, and submit, within sixteen months from the date on which the applicant first filed the application, a copy of the patent application documents which were filed for the first time.

If any applicant claims the right of priority for a design patent, he or it shall make a written declaration when the patent application for a design is filed, and submit, within three months, a copy of the patent application documents which were filed for the first time.

If the applicant fails to make the written declaration or to meet the time limit for submitting the copy of the patent application documents, the claim to the right of priority shall be deemed not to have been made.

Article 31. A patent application for an invention or utility model shall be limited to one invention or utility model. Two or more inventions or utility models belonging to a single general inventive concept may be filed as one application.

A patent application for a design shall be limited to one design. Two or more similar designs for the same product or two or more designs which are incorporated in products belonging to the same category and sold or used in sets may be filed as one application.

Article 32. An applicant may withdraw his or its patent application at any time before the patent right is granted.

Article 33. An applicant may amend his or its patent application documents, however, the amendment to the patent application documents for an invention or utility model may not go beyond the scope of disclosure contained in the original description and claims, and the amendment to the patent application documents for a design may not go beyond the scope of the disclosure as shown in the original drawings or photographs.

Chapter IV

Examination and Approval of Patent Applications

Article 34. Where, after receiving a patent application for an invention, the patent administration department under the State Council finds that the application meets the requirements of this Law after preliminary examination, it shall publish the application promptly after the expiration of eighteen months from the filing date. Upon the request of the applicant, the patent administration department under the State Council may publish the application earlier.

Article 35. Within three years from the filing date, the patent administration department under the State Council may conduct a substantive examination of the application upon a request made by the applicant for a patent for invention at any time. If the applicant, without any justified reason, fails to request a substantive examination at the expiration of the time limit, the application shall be deemed to have been withdrawn.

When the patent administration department under the State Council deems it necessary, it may, on its own initiative, conduct a substantive examination of any patent application for an invention.

Article 36. When the applicant for an invention patent requests a substantive examination, he or it shall submit reference materials relating to the invention existing prior to the filing date.

If a patent application for an invention that has been filed in a foreign country, the patent administration department under the State Council may ask the applicant to submit, within a specified time limit, materials concerning any search made for the purpose of examining the application in that country, or concerning the results of any examination made in that country. If, at the expiration of the specified time limit, the said materials are not submitted without any justified reason, the application shall be deemed to have been withdrawn.

Article 37. After the patent administration department under the State Council has conducted a substantive examination of the patent application for an invention, if it finds that the application is not in conformity with the provisions of this Law, it shall notify the applicant and require him or it to state opinions within a specified time limit or to amend the application. If the applicant fails to state opinions at the expiration of the specified time limit without any justified reason, the application shall be deemed to have been withdrawn.

Article 38. After the applicant states his or its opinions on or makes amendment to the patent application for an invention, the patent administration department under the State Council still finds that the patent application for an invention is not in conformity with the provisions of this Law, the application shall be rejected.

Article 39. Where no cause for rejection is found after the substantive examination of the patent application for an 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 meanwhile make a registration and announcement about it. The patent right for invention shall take effect as of the date of the announcement.

Article 40. Where no cause for rejection is found after the preliminary examination of the patent application for a 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 design, issue a corresponding patent certificate, and meanwhile make a registration and announcement about it. The patent right for utility model or design shall take effect as of the date of the announcement.

Article 41. Where a patent applicant refuses to accept the decision of the patent administration department under the State Council on rejecting the application, the applicant may, within three months from the date of receipt of the notification, request the patent administration department under the State Council to make a reexamination. The patent administration department under the State Council shall, after reexamination, make a decision and notify the patent applicant.

Where the patent applicant refuses to accept the decision of the reexamination of the patent administration department under the State Council, it or he may, within three months from the date of receipt of the notification, file a lawsuit in the people's court.

Chapter V

Terms, Termination and Invalidation of Patent Rights

Article 42. The term of patent right for inventions shall be twenty years, the term of patent right for utility models shall be ten years, and the term of patent right for designs shall be fifteen years, all commencing from the filing date.

Where a patent right for an invention is granted after the expiration of four years from the filing date and after the expiration of three years from the date of the request for substantive examination of the application, the patent administration department under the State Council shall, at the request of the patentee, extend the term of the patent to compensate for the unreasonable delay in the granting process of the invention, except for the unreasonable delay caused by the applicant.

In order to compensate for the time taken for the review and approval process before the marketing of a new pharmaceutical product, the patent administration department under the State Council shall, at the request of the patentee, extend the term of the new pharmaceutical-related invention which has been approved for marketing in China. The compensation term may not be more than five years, and the total effective term of the patent right may not be more than fourteen years from the date of marketing approval.

Article 43. The patentee shall pay an annual fees beginning with the year in which the patent right is granted.

Article 44. Under any of the following circumstances, the patent right shall be terminated before the expiration of its term:

(1) failure to pay the annual fee as required; or

(2) the patentee waiving of the patent right by a written declaration;

If a patent right terminated before the term expires, the patent administration department under the State Council shall register and announce such termination.

Article 45. Beginning from the date of the announcement of the grant of a patent right by the patent administration department under the State Council, any entity or individual considers that the grant of the patent right is not in conformity with the relevant provisions of this Law, it or he may request the patent administration department under the State Council to declare the patent right invalid.

Article 46. The patent administration department under the State Council shall, in a timely manner, examine the request for declaring invalidation of a patent right invalid, make a decision on it, and notify the person who made the request and the patentee of its decision. The decision on declaring the patent right invalid shall be registered and announced by the patent administration department under the State Council.

Where the party concerned refuses to accept the decision of the patent administration department under the State Council on declaring the patent right invalid or on upholding the patent right, he or it may file a lawsuit in the people's court within three months from the date of receipt of the notification of the decision. The people's court shall notify the person who is the opponent party in the invalidation procedure to participate in the litigation as a third party.

Article 47. Any patent right that has been declared invalid is deemed to be non-existent from the beginning.

The decision on declaring the patent right invalid shall have no retroactive effect on any judgment or mediation statement on patent infringement which has been made and enforced by the people's court, on any decision concerning the handling of a dispute over patent infringement which has been performed or compulsorily executed, or on any patent exploitation licensing contract or patent right transfer contract which has been performed--prior to the declaration of the invalidation of the patent right; however, the damage caused to other persons in bad faith by the patentee shall be compensated.

Where the monetary damage for patent infringement, the royalties for patent exploitation or the fees for the transfer of the patent right is not refunded pursuant to the provisions of the preceding paragraph, but such non-refund is obviously contrary to the principle of fairness, refund shall be made fully or partly.

Chapter VI

Special License for the Exploitation of a Patent

Article 48. The patent administration department under the State Council and the departments in charge of patent affairs of the local people's government shall, in conjunction with the relevant departments at the same level, take measures to strengthen patent public services and promote the exploitation and utilization of patents.

Article 49. Where any patent for invention of a State-owned enterprise or institution, is of great significance to the interest of the State or to the public interests, the relevant competent departments under the State Council and the people's governments of provinces, autonomous regions or municipalities directly under the Central Government may, after approval by the State Council, decide that the patented invention be spread and applied within the approved scope, and allow designated entities to exploit the invention. The exploiting entity shall, in accordance with the regulations of the State, pay a royalty to the patentee.

Article 50. Where the patentee voluntarily declares in writing to the patent administration department under the State Council that it or he is willing to license any entity or individual to exploit its or his patent, and specifies the payment method and the standard of the royalty, the patent administration department under the State Council shall make an announcement and implement an open license. Where the patentee submits an open license statement for its or his utility model and design, it or he shall attach an evaluation report of the patent.

Where the patentee withdraws the open license statement, the withdrawal shall be submitted in writing and be announced by the patent administration department under the State Council. If the open license statement is withdrawn by announcement, the validity of the open license granted earlier shall not be affected.

Article 51. Where an entity or individual notifies the patentee of its or his willing to implement an open-licensed patent in writing and pays the royalty in accordance with the announced payment method and standard for the royalty, it or he obtains the patent license.

During the implementation period of the open license, the annual fee paid by the patentee shall be reduced or exempted accordingly.

The patentee whose patent is under an open license may grant a general license after negotiating with the licensee on the royalty, however, the patentee may not grant an exclusive or sole license for that patent.

Article 52. Where a dispute arises over the implementation of an open license, the parties shall resolve it through consultation. Where the parties are unwilling to consult with each other or where the consultation fails, they may either request the patent administration department under the State Council to mediate the matter, or file a lawsuit in the people's court.

Article 53. Under any of the following circumstances, the patent administration department under the State Council may, upon the application made by an entity or individual which possesses the conditions for exploitation, grant a compulsory license to exploit an invention or utility model:

(1) where the patentee, after the expiration of three years from the date of the grant of the patent right and the expiration of four years from the filing date, has not exploited or has not sufficiently exploited the patent without any justified reason; or

(2) where the exercise of the patent right by the patentee is confirmed as a monopolistic conduct in accordance with law, and its negative impact on competition needs to be eliminated or reduced.

Article 54. Where a national emergency or any extraordinary state of affairs occurs, or where the public interests so require, the patent administration department under the State Council may grant a compulsory license to exploit the patent for invention or utility model.

Article 55. For the purposes of public health, the patent administration department under the State Council may grant a compulsory license for manufacture of a pharmaceutical product, for which a patent right has been granted, and for exporting it to the countries or regions that comply with the provisions of the relevant international treaties to which the People's Republic of China is a party.

Article 56. Where the invention or utility model, for which a patent right has been granted, involves a major technological advancement of remarkable economic significance, compared with an 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 patentee of the later patent, grant a compulsory license to exploit the earlier invention or utility model.

In the case of granting a compulsory license in accordance with the provisions of the preceding paragraph, the patent administration department under the State Council may, upon the request of the patentee of the earlier patent, also grant a compulsory license to exploit the later invention or utility model.

Article 57. Where the invention-creation involved in a compulsory license is a semi-conductor technology, the exploitation thereof shall be limited to the purpose of the public interests and to the circumstances as provided for in Subparagraph (2) of Article 53 of this Law.

Article 58. Except for the compulsory licenses granted in accordance with the provisions of Subparagraph (2) of Article 53 or Article 55 of this Law, compulsory licenses shall mainly be exercised for the supply to the domestic market.

Article 59. Any entity or individual applying for a compulsory license in accordance with the provisions of Subparagraph (1) of Article 53 or Article 56 of this Law shall provide evidence to prove that it or he has made a request for a license from the patentee to exploit the patent under reasonable terms, but has failed to obtain such a license within a reasonable period of time.

Article 60. The decision made by the patent administration department under the State Council on granting a compulsory license for exploitation shall be notified to the patentee in a timely manner and shall be registered and announced.

In the decision on 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. When the circumstances which led to such compulsory license cease to exist and no longer occur, the patent administration department under the State Council shall, at the request of the patentee, make a decision to terminate the compulsory license after examination.

Article 61. Any entity or individual that is granted a compulsory license for exploitation does not have an exclusive right to exploit, nor has it or he the right to allow others to exploit.

Article 62. The entity or individual that is granted a compulsory license for exploitation shall pay reasonable royalties to the patentee, or deal with the issue of royalties in accordance with the provisions of the relevant international treaties to which the People's Republic of China is a party. Where royalties are paid, the amount of royalties shall be negotiated by both parties. Where the parties fail to reach an agreement, the patent administration department under the State Council shall make a ruling.

Article 63. Where the patentee refuses to accept the decision of the patent administration department under the State Council on granting a compulsory license for exploitation, or where the patentee or the entity or individual that is granted the compulsory license for exploitation refuses to accept the ruling made by the patent administration department under the State Council regarding the royalties for the compulsory license for exploitation, it or he may, within three months from the date of receipt of the notification, file a lawsuit in the people's court.

Chapter VII

Protection of Patent Rights

Article 64. For the patent right of an invention or a utility model, the scope of protection shall be confined to the content of the claims. The description and the drawings attached may be used to explain the content of the claims.

For the patent right for design, the scope of protection shall be confined to the design of the product as shown in the drawings or photographs. The brief description may be used to explain the design of the product as shown in the drawings or photographs.

Article 65. 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 patentee's patent right, it shall be resolved through consultation between the parties. Where the parties are unwilling to consult with each other or where the consultation fails, the patentee or any interested party may file a lawsuit in the people's court, or request the departments in charge of patent-related work to deal with the dispute. When the department in charge of patent-related work dealing with the dispute considers that the infringement is established, it may order the infringer to stop the infringing act immediately. If the infringer refuses to accept the order, he may, within 15 days from the date of receipt of the notification of the order, file a lawsuit in the people's court in accordance with the Administrative Procedure Law of the People's Republic of China. If the infringer neither files a lawsuit nor stops the infringing act at the expiration of the period of time, the department in charge of patent-related work may file an application with the people's court for compulsory execution. At the request of the party concerned, the department in charge of patent-related work dealing with the dispute may carry out mediation concerning the amount of compensation for the patent right infringement. If the mediation fails, the parties may file a lawsuit in the people's court in accordance with the Civil Procedure Law of the People's Republic of China.

Article 66. Where a patent infringement dispute involves a patent for an invention for a manufacturing process of a new product, the entity or individual manufacturing the identical product shall provide evidence to prove that the manufacturing process used in the manufacture of its or his product is different from the patented process.

Where a patent infringement dispute involves a patent for a utility model or a design, the people's court or the department in charge of patent-related work may ask the patentee or any interested party to furnish a patent right evaluation report made by the patent administration department under the State Council after having conducted search, analysis and evaluation of the relevant utility model or design, and use it as evidence for hearing or dealing with the patent infringement dispute; the patentee or any interested party or the alleged infringer may also voluntarily furnish the patent right evaluation report.

Article 67. In a patent infringement dispute, if the alleged infringer has evidence to prove that the technology or design exploited by it or him forms part of the prior art or prior design, such exploitation shall not constitute an infringement of the patent right.

Article 68. Where any person counterfeits a patent of another person, he shall, in addition to bearing his civil liabilities in accordance with law, be ordered by the department in charge of patent enforcement to make rectifications, and the department shall make the matter known to the public. His illegal earnings shall be confiscated and, in addition, he may be imposed on a fine of not more than five times his illegal earnings. If there are no illegal earnings or the illegal earnings are less than RMB 50,000 Yuan, a fine of not more than RMB 250,000 Yuan may be imposed on him. Where the infringement constitutes a crime, he shall be investigated for his criminal responsibility in accordance with law.

Article 69. When investigating and handling the suspected act of counterfeiting a patent, the department in charge of patent enforcement shall have the right to take the following measures based on the evidence obtained:

(1) To inquire the parties concerned, and investigate the circumstances related to the suspected illegal act;

(2) To carry out an on-the-spot inspection of the site where the party's suspected illegal act is committed;

(3) To consult and duplicate the contracts, invoices, account books and other relevant materials related to the suspected illegal act;

(4) To examine the products related to the suspected illegal act;

(5) To seal up or detain the products proved to be produced by the counterfeited patent.

When dealing with the patent infringement disputes at the request of the patentee or the interested party, the department in charge of patent-related work may take measures listed in Subparagraph (1), (2) and (4) of the preceding paragraph.

When the department in charge of patent enforcement or the department in charge of patent-related work exercises its functions and powers as stipulated in the preceding two paragraphs in accordance with law, the parties concerned shall provide assistance and cooperation and shall not refuse to do so or create obstacles.

Article 70. The patent administration department under the State Council may, at the request of the patentee or any interested party, deal with patent infringement disputes that have a major impact throughout the country.

When dealing with patent infringement disputes at the request of the patentee or any interested party, the department in charge of patent-related work of the local people's government may deal with the cases of infringement of the same patent right within its administrative area in a combined manner; for cases infringing the same patent right across administrative areas, it may request the department in charge of patent-related work of the local people's government at a higher level to deal with the matter.

Article 71. The amount of compensation for patent right infringement shall be determined on the basis of the actual losses suffered by the right holder as a result of the infringement or the profits earned by the infringer as a result of the infringement. Where it is difficult to determine the losses suffered by the right holder or the profits earned by the infringer, the amount shall be reasonably determined by reference to the multiple of the amount of the royalties for the patent license. For intentional infringement of a patent right, if the circumstances are serious, the amount of compensation may be determined at not less than one time and not more than five times the amount determined in accordance with the above-mentioned method.

Where it is difficult to determine the losses suffered by the right holder, the profits earned by the infringer and the royalties for the patent license, the people's court may determine the amount of compensation, which is not less than RMB 30,000 Yuan and not more than RMB 5,000,000 Yuan, in light of such factors as the type of the patent right, the nature and the circumstances of the infringing act.

The amount of compensation shall also include the reasonable expenses of the right holder paid for putting an end to the infringement.

In order to determine the amount of compensation, under the circumstance that the right holder has tried its or his best to provide evidence, and the account books or materials related to the patent infringement are mainly at the hands of the infringer, the people's court may order the infringer to provide such account books or materials. Where the infringer refuses to provide the account books or materials, or provides false account books or materials, the people's court may determine the amount of compensation by reference to the right holder's claims and the evidence provided.

Article 72. Where the patentee or any interested party has evidence to prove that another person is infringing or is about to infringe its or his patent right or hinders the realization of the right, which, unless being stopped in time, may cause irreparable damage to his lawful rights and interests, it or he may, before filing a lawsuit, apply to the people's court for adopting measures for property preservation, ordering to do certain acts or to prohibit certain acts in accordance with the law.

Article 73. In order to stop patent infringement, in cases where the evidence might be destroyed or where it would be difficult to obtain in the future, the patentee or the interested party may, before filing a lawsuit, apply to the people's court for evidence preservation in accordance with the law.

Article 74. The period of limitation for action against the infringement of a patent right is three years, beginning from the date on which the patentee or interested party knows or should have known of the infringing act and the infringer.

Where an appropriate royalty is not paid for exploiting an invention during the period from the publication of the application to the grant of the patent right, the limitation period for taking legal action by the patentee for requesting the payment of royalties is three years, beginning from the date on which the patentee knows or should have known of the exploitation of his or its invention by another person. However, where the patentee knows or should have known of the exploitation of the invention before the patent right is granted, the period of limitation for action shall begin from the date when the patent right is granted.

Article 75. None of the following shall be deemed as infringement of the patent right:

(1) where, after the sale of a patented product or a product acquired directly in accordance with a patented process by the patentee or any entity or individual authorized by the patentee, any other person uses, offers to sell, sells, or imports that product;

(2) where, before the filing date of the patent application, any person who has already manufactured the identical product, used the identical process, or made necessary preparations for its manufacturing or using, continues to manufacture or use it only within the original scope;

(3) where any foreign means of transport, which temporarily passes through the territory, territorial waters or territorial airspace of China, uses the relevant patent in its devices or installations for its own needs in accordance with the agreements concluded between the country to which the foreign means of transport belongs and China, or in accordance with the international treaties to which both countries are parties, or on the basis of the principle of reciprocity;

(4) where the relevant patent is used specially for the purposes of scientific research and experimentation; or

(5) where for the purposes of providing information needed for the administrative examination and approval, any person manufactures, uses, or imports patented drugs or patented medical apparatus and instruments, or any other person manufactures or imports patented drugs or patented medical apparatus and instruments especially for that person.

Article 76. In the review and approval process before the marketing of a pharmaceutical product, where the applicant for marketing approval of the pharmaceutical product has any disputes over the relevant patent right associated with the pharmaceutical product applied for registration with the relevant patentee or interested party, the party concerned may file a lawsuit before the People's Court and request a judgment on whether the technical solution related to the pharmaceutical product that is applied for registration falls within the protection scope of any pharmaceutical product patent right owned by others. The medical product regulatory department under the State Council may, within a prescribed time limit, make a decision on whether to suspend the marketing approval of the pharmaceutical product according to the effective judgment or written order of the People's Court.

The applicant for marketing approval of the pharmaceutical product, the relevant patentee or the interested party may also petition the patent administration department under the State Council for an administrative adjudication on the disputes over the patent right associated with the drug applied for registration.

The medical products regulatory department under the State Council shall, in conjunction with the patent administration department under the State Council, formulate specific cohesive measures for patent right dispute resolutions at the stages of pharmaceutical product marketing license approval and pharmaceutical product marketing license application, which shall be implemented after the approval of the State Council.

Article 77. Any person who, for production and business purposes, uses, offers to sell or sells a patent-infringing product, without knowing that it is manufactured and sold without the authorization of the patentee, may not be liable for compensation provided that he can prove the legitimate source of the product.

Article 78. Where any person, in violation of the provisions of Article 19 of this Law, files a patent application in a foreign country, thereby divulging a State secret, the entity to which he belongs or the competent authority at the higher level shall impose on him an administrative sanction; if a crime is established, he shall be investigated for his criminal responsibility in accordance with law.

Article 79. The departments in charge of patent-related work under the people's governments may not take part in recommending any patented product for sale to the public or any such commercial activities.

Where a department in charge of patent-related work under the people's governments violates the provisions of the preceding paragraph, it shall be ordered to make a rectification and to eliminate adverse effects by the department at the higher level or the supervisory organ. The illegal earnings, if any, shall be confiscated. Where the circumstances are serious, the principal leading person directly in charge and other persons who are directly responsible shall be given sanctions in accordance with the law.

Article 80. Where a State functionary working for patent administration or any other State functionary concerned neglects his duties, abuses his powers, or engages in malpractice for personal gain, which constitutes a crime, shall be investigated for his criminal responsibility in accordance with law. If the case is not serious enough to constitute a crime, he shall be given sanctions in accordance with law.

Chapter VIII

Supplementary Provisions

Article 81. To file a patent application or go through other formalities with the patent administrative department under the State Council, fees shall be paid as prescribed.

Article 82. This Law shall go into effect on 1 April 1985.

Source: https://english.cnipa.gov.cn/col/col3068/index.html

The post Patent Law of the People's Republic of China (amended up to Oct. 17, 2020) first appeared on 北京尚誠知識産権代理有限公司.

TRADEMARK LAW OF THE PEOPLE'S REPUBLIC OF CHINA(Amended up to Apr. 23, 2019)

(Adopted at the 24th Meeting of the Standing Committee of the Fifth National People's Congress on August 23, 1982; amended for the first time in accordance with the Decision on Revising the Trademark Law of the People's Republic of China at the 30th Meeting of the Standing Committee of the Seventh National People's Congress on February 22, 1993; amended for the second time in accordance with the Decision on Revising the Trademark Law of the People's Republic of China at the 24th Meeting of the Standing Committee of the Ninth National People's Congress on October 27, 2001; amended for the third time in accordance with the Decision on Revising the Trademark Law of the People's Republic of China at the 4th Meeting of the Standing Committee of the Twelfth National People's Congress on August 30, 2013; amended for the fourth time; amended for the fourth time in accordance with the Decision on Revising the Construction Law of the People's Republic of China and Other Seven Laws at the 10th Meeting of the Standing Committee of the Thirteenth National People's Congress on April 23, 2019)

Contents
Chapter I General Provisions
Chapter II Application for Trademark Registration
Chapter III Examination and Approval of Trademark Registration
Chapter IV Renewal, Alteration, Transfer and Licensing of Registered Trademarks
ChapterV Declaration of the Invalidity of Registered Trademarks
Chapter VI Administrative Control of the Use of Trademarks
Chapter VII Protection of the Exclusive Right to the Use of a Registered Trademark
Chapter VIII Supplementary Provisions

Chapter I General Provisions

Article 1 This Law is enacted for the purpose of improving the administration of trademarks, protecting the exclusive right to the use of a trademark, and encouraging producers and dealers to guarantee the quality of their goods and services and preserve the credibility of trademarks, so as to protect the interests of consumers, producers and dealers and promote the development of the socialist market economy.

Article 2 The trademark office of the administrative department for industry and commerce under the State Council shall be in charge of the work of trademark registration and administration throughout the country.
The administrative department for industry and commerce under the State Council shall establish a trademark review and adjudication board to be responsible for handling trademark disputes.

Article 3 Registered trademarks refer to trademarks that are registered with the approval of the trademark office, including trademarks for goods and services, collective trademarks and certification trademarks. The owner of a registered trademark shall enjoy the exclusive right to the use of the trademark, which shall be protected by law.

For purposes of this Law, a collective trademark refers to one that is registered in the name of a group, association, or any other organization for use in business by its members to indicate membership.

For purposes of this Law, a certification trademark refers to one that is controlled by an organization which is capable of exercising supervision over a particular kind of goods or services and that is used by a unit other than the organization or by an individual for its or his goods or services, and is designed to certify the indications of the place of origin, raw materials, mode of manufacture, quality, or other specified properties of the said goods or services.

Particulars pertaining to the registration and administration of collective trademarks and certification trademarks shall be formulated by the administrative department for industry and commerce under the State Council.

Article 4 Any natural person, legal person or other organization that needs to obtain the exclusive right to use a trademark for its goods or services during production and business operations shall apply for trademark registration with the trademark office. A mala fide trademark registration application not made for the purpose of using the trademark shall be rejected.

Provisions regarding the goods trademarks in this Law shall be applicable to service trademarks.

Article 5 Two or more natural persons, legal persons, or other organizations may jointly file an application with the trademark office for the registration of one and the same trademark and jointly enjoy and exercise the exclusive right to the use of the trademark.

Article 6 Where a registered trademark is required to be used for some goods by laws or administrative regulations, an application for trademark registration shall be made. No such goods may be marketed without an approved and registered trademark.

Article 7 The principle of good faith shall be upheld in the application for trademark registration and in the use of trademarks. The user of a trademark shall be responsible for the quality of the goods on which the trademark is used. The administrative departments for industry and commerce at all levels shall, through the administration of trademarks, put an end to any practice that deceives consumers.

Article 8 Any signs, including words, graphs, letters, numbers, three-dimensional symbols, color combinations, sound or any combination thereof, that are capable of distinguishing the goods of a natural person, legal person or other organization from those of others may be applied for registration as trademarks.

Article 9 A trademark submitted for registration shall bear noticeable characteristics and be readily distinguishable, and it may not conflict with the legitimate rights obtained by others earlier.

A trademark registrant shall have the right to indicate the wording "Registered Trademark" or the sign showing that the trademark is registered.

Article 10 None of the following signs may be used as trademarks:

(1)Those identical with or similar to the State name, the national flag, emblem or anthem, the military flag, emblem or songs, or medals of the People's Republic of China; or those identical with the names or emblems of Central State organs, the names of the specific locations where the Central State organs are seated; or those identical with the names or designs of landmark buildings;

(2)Those identical with or similar to the State name, national flag, national emblem or military flag etc., of a foreign country, except with the consent of the government of that country;

(3)Those identical with or similar to the name, flag or emblem of an international inter-governmental organization, except with the consent of that organization or except where it is unlikely to mislead the public;

(4)those identical with or similar to an official mark or inspection stamp that indicates control and guarantee, except where authorized;

(5)those identical with or similar to the symbol or name of the Red Cross or the Red Crescent;

(6)those having the nature of discrimination against any nationality;

(7) Those that are deceptive and are likely to mislead the public in terms of the quality, place of production or other characteristics of the goods; and (8)those detrimental to socialist ethics or customs, or having other unwholesome influences.

No geographical names of administrative divisions at or above the county level or foreign geographical names known to the public may be used as trademarks, except where geographical names have other meanings or constitute part of a collective trademark or certification trademark. Registered trademarks in which geographical names are sued shall remain valid.

Article 11 None of the following signs may be registered as trademarks:

(1)where the mark bears only the generic name, design, or model number of the goods concerned;

(2)where it only directly indicates the quality, principal raw materials, function, use, weight, quantity or other features of the goods; and

(3) Signs that otherwise lack any distinctive character.

Any mark mentioned in the preceding paragraph may be registered as a trademark if it has acquired distinctive features through use and is readily distinguishable.

Article 12 No application for registration of a three-dimensional sign as a trademark may be granted, where the sign merely indicates the shape inherent in the nature of the goods concerned, or it is only dictated by the need to achieve technical effects or the need to give the goods substantive value.

Article 13 A holder of a trademark that is well known by the relevant public may, if he holds that his rights have been infringed upon, request for well-known trademark protection in accordance with this Law. Where the trademark of an identical or similar kind of goods is a reproduction, imitation, or translation of another person's well-known trademark not registered in China and is liable to cause public confusion, no application for its registration may be granted and its use shall be prohibited.

Where the trademark of a different or dissimilar kind of goods is a reproduction, imitation, or translation of another person's well-known trademark registered in China and it misleads the public so that the interests of the owner of the registered well-known trademark are likely to be impaired, no application for its registration may be granted and its use shall be prohibited.

Article 14 A well-known trademark shall be recognized as a fact that needs to be ascertained in dealing with a trademark-related case upon request by the party concerned. The following factors shall be taken into consideration in the recognition of a well-known trademark:

(1)the recognition degree of the trademark among the relevant public;

(2)the duration in which the trademark has been in use;

(3)the duration, extent and geographical scope of all publicity operations carried out for the trademark;

(4)the records of protection of a well-known trademark provided for the trademark and

(5)Other factors making the trademark well-known.

Where the party concerned claims rights according to Article 13 of this Law in a trademark registration review or during the process whereby the administrative department for industry and commerce investigates and deals with a case involving trademark infringement, the trademark office concerned may, based on the need for reviewing or dealing with the case, decide whether or not to recognize the relevant trademark as a well-known one.

Where the party concerned claims rights according to Article 13 of this Law, during the handling of a trademark dispute, the trademark review and adjudication board may, based on the need for handling the cases, decide whether or not to recognize the relevant trademark as a well-known one.

Where the party concerned claims rights according to Article 13 of this Law during the hearing of a civil or administrative case involving a trademark, the people's court designated by the Supreme People's Court may, based on the need for trying the case, decide whether or not to recognize the relevant trademark as a well-known one.

No manufacturers and business operators may indicate the words “well-known trademark" upon the goods, the packaging or the containers of the goods, nor may they use the same for advertising, exhibition or other commercial activities.

Article 15 Where an agent or representative, without authorization of the client, seeks to register in its own name the client's trademark and the client objects, the trademark shall not be registered and its use shall be prohibited.

An application for registering a trademark for the same kind of goods, or similar goods shall not be approved if the trademark under application is identical with or similar to an unregistered trademark already used by another party, the applicant is clearly aware of the existence of the trademark of such another party due to contractual, business or other relationships with the latter other than those prescribed in the preceding paragraph, and such another party raises objections to the trademark registration application in question.

Article 16 Where a trademark bears a geographical indication of the goods when the place indicated is not the origin of the goods in question, thus misleading the public, the trademark shall not be registered and its use shall be prohibited. However, where the registration is obtained in goodwill, it shall remain valid.

The geographical indication mentioned in the preceding paragraph means the origin of the goods the special qualities, credibility or other characteristics of the goods and it is primarily determined by the natural factors or other humanistic factors of the place indicated.

Article 17 Where a foreigner or foreign enterprise applies for trademark registration in China, the matter shall be handled in accordance with any agreement concluded between the country to which the applicant belongs and the People's Republic of China, or any international treaty to which both countries are parties, or on the basis of the principle of reciprocity.

Article 18 A party may apply for trademark registration or handle trademark-related matters on its own or by entrusting a trademark agency established according to the law.

A foreigner or foreign enterprise shall entrust a trademark agency established according to the law for applying for trademark registration and handling other trademark-related matters in China.

Article 19 Trademark agencies shall uphold the principle of good faith, comply with laws and administrative regulations, apply for trademark registration or deal with other trademark-related matters as entrusted by the principals, and keep confidential the principals' trade secrets that come to their knowledge during the agency process.

Where a trademark entrusted by a principal for registration application may fall under the circumstances prescribed by this Law under which registration is not allowed, the trademark agency shall explicitly so inform the principal.

A trademark agency shall not accept the entrustment of a principal if it knows or should have known that the trademark entrusted by the principal for registration application falls under any of the circumstances prescribed by Article 4, Article 15 and Article 32 of this Law.

A trademark agency shall not apply for registration of trademarks other than the ones entrusted to it.

Article 20 The industry association of trademark agencies shall, pursuant to its articles of association, strictly enforce the conditions for admitting members, and mete out sanctions against the members violating industry self-disciplinary standards. The industry association of trademark agencies shall publish in time information on the members admitted and the disciplinary sanctions against its members.

Article 21 International trademark registration shall be governed by the systems established by relevant international treaties concluded or acceded to by the People's Republic of China. The specific measures in this regard shall be formulated by the State Council.

Chapter II Application for Trademark Registration

Article 22 A trademark registration applicant shall make an application and, according to the prescribed categories of goods, indicate in the application the types and the names of goods for which the trademark is to be used.

A trademark registration applicant may apply for registration of the same trademark for multiple types of goods in one application.

A trademark registration application and other relevant documents may be submitted in writing or by way of data message.

Article 23 For obtaining the exclusive right to use a registered trademark on goods beyond the approved scope of use, a new registration application shall be made.

Article 24 If a change needs to be made in the signs of a registered trademark, an application shall be filed anew.

Article 25 Where an applicant, within six months from the date he applies for registration of his trademark for the fist time in a foreign country, again applies in China for registration of one and the same trademark for the same kind of goods, he may, in accordance with any agreement concluded between the foreign country concerned and the People's Republic of China or any international treaty to which both countries are parties, or on the basis of the priority principle mutually accepted, enjoy priority.

Where, in accordance with the preceding paragraph, an applicant claims priority, he shall so state in writing at the time when he files the application for trademark registration and shall, within three months, submit a copy of the original application he files for the first time. Failure on the part of the applicant to make the statement in writing or to submit a copy of the original application before the expiration of the time limit shall be regarded as not claiming priority.

Article 26 The applicant for registration of a trademark that is used for the first time on goods displayed at an international exhibition organized or recognized by the Chinese Government may, within six months from the date the said goods are placed on exhibition, enjoy priority.

Where, in accordance with the preceding paragraph, an applicant claims priority, he shall so state in writing at the time when he files the application for trademark registration and shall, within three months, submit the name of the exhibition, evidence supporting the use of the trademark on the goods displayed, documents proving the date the exhibition, etc. failure to make the statement in writing or to submit the documents before the expiration of the time limit shall be regarded as not claiming priority.

Article 27 Matters stated in the application for trademark registration and all information provided shall be truthful, accurate and complete.

Chapter III Examination and Approval of Trademark Registration

Article 28 The trademark office shall complete the examination of a trademark under registration application within nine months from the date of receiving the application documents for trademark registration, and shall issue a preliminary review announcement if the said application is in compliance with the relevant provisions of this Law.

Article 29 If during the review, the trademark office is of the opinion that the contents of the trademark registration application need to be explained or corrected, it may require the applicant to do so. The failure of the applicant to provide explanations or make correction shall not affect the trademark office in making a decision upon review.

Article 30 Where a trademark, for the registration of which an application is made, that does not conform to the relevant provisions of this Law or that is identical with or similar to the trademark already registered by another person or is given preliminary examination and approval for use on the same kind of goods or similar goods, the trademark office shall reject the application and shall not announce that trademark.

Article 31 Where two or more applicants apply to register identical or similar trademarks for use on the same kind of goods or similar goods, the trademark office shall first conduct examination of, give approval to and announce the trademark whose registration is applied for earlier than the rest. Where the applications are filed on the same day, the trademark office shall first examine, give approval to and announce the trademark which is used earlier that the rest, and it shall reject the applications for registration of the other trademarks and shall not announce them.

Article 32 No applicant for trademark application may infringe upon another person's existing prior rights, nor may he, by illegitimate means, rush to register a trademark that is already in use by another person and has certain influence.

Article 33 If a holder of prior rights or an interested party holds that the trademark announced upon preliminary review is in violation of the second or third paragraph of Article 13, Article 15, the first paragraph of Article 16, Article 30, Article 31, or Article 32 of this Law, he may, within three months from the date of the preliminary review announcement, raise objections to the trademark office. Any party that is of the opinion that the aforesaid trademark is in violation of Article 4, Article 10, Article 11, Article 12 or the fourth paragraph of Article 19 of this Law may raise objections to the trademark office within the same three-month period. If no objection is raised upon expiry of the announcement period, the trademark office shall approve the registration application, issue the certificate of trademark registration, and make an announcement thereon.

Article 34 Where an application for trademark is rejected and no preliminary review announcement is to be made, the trademark office shall so notify the trademark registration applicant concerned in writing. Where the applicant disagrees to the result, he may, within 15 days from the date he receives the notice, apply to the trademark review and adjudication board for a second review. The trademark review and adjudication board shall, within nine months upon receipt of the application, make a decision and notify the applicant in writing. Where it is necessary under special circumstance, an extension of three months may be granted upon approval by the administrative department for industry and commerce of the State Council. Where the applicant disagrees to the decision of the trademark review and adjudication board, he may, within 30 days from the date he receives the notice, bring a lawsuit to a people’s court.

Article 35 Where objections are raised against a trademark for which a preliminary review announcement has been made, the trademark office shall listen to the facts and grounds stated by both the opponent and the opposed, and after investigation and verification make a decision on whether or not to approve the registration of the trademark within 12 months from the expiry date of the announcement period and shall notify the opponent and the opposed of the decision in writing. Where it is necessary under special circumstances, an extension of six months may be granted upon approval by the administrative department for industry and commerce of the State Council.

Where the trademark office decides to approve a trademark registration, it shall issue the certificate of trademark registration to the applicant and make an announcement thereon. Where the opponent is dissatisfied with the decision, he may request the trademark review and adjudication board to declare the said registered trademark invalid in accordance with Article 44 or Article 45 of this Law.

Where the trademark office decides not to approve a trademark registration, the opposed party disagreeing to the decision may apply for a second review to the trademark teview and adjudication board within 15 days upon receipt of the relevant notice. The trademark review and adjudication board shall make a decision after review, and notify both the opponent and the opposed parties of such a decision in writing within 12 months from the date of the receipt of the application for review. Where it is necessary under special circumstances, an extension of six months may be granted upon approval by the administrative department for industry and commerce of the State Council. If the opposed is dissatisfied with the decision made by the trademark review and adjudication board, he may bring a lawsuit to the people's court within 30 days from the date he receives the notice, in which case the people's court shall notify the opponent to participate in the litigation proceedings as a third party.

When carrying out review in accordance with the preceding paragraph, the trademark review and adjudication board may suspend the review if the prior rights involved can only be ascertained based on the outcomes of another case currently under the hearing by a people's court or under the handling by an administrative organ. The trademark review and adjudication board shall resume the review procedure once the circumstances for suspension are eliminated.

Article 36 Where, upon the expiry of the statutory time limit, a party concerned fails to apply for review of the decision on rejection of a registration application or decision on denial of registration made by the trademark office, or fails to bring a lawsuit to the people's court against the decision of review made by the trademark review and adjudication board, the decision on rejection of a registration application, the decision on denial of registration or the decision of review shall become effective.

Where the registration of a trademark is approved after the objection to its registration is found to be unsubstantiated upon examination, the time when the trademark registration applicant obtains the exclusive right to use the trademark shall commence from the date of the expiry of the three-month period of the preliminary examination announcement. During the period from the date of the expiry of the said announcement period to the time when decision is made to approve the registration of the trademark, the trademark shall have no retroactive effect on the use of an identical or similar mark by another party on the same kind of goods or similar goods. However, such other party shall be liable for compensating any losses caused, mala fide, to the trademark registrant.

Article 37 Applications for trademark registration and for review shall be examined without delay.

Article 38 Where an applicant for trademark registration or a registrant discovers an obvious error in the trademark application or registration documents, he may apply for its correction. The trademark office shall, in accordance with law and within the limits of its functions and powers, make the correction and shall notify the party of the matter.

The correction of errors mentioned in the preceding paragraph shall not involve substantive matters in the application or registration documents.

Chapter IV Renewal, Alteration, Transfer and Licensing of Registered Trademarks

Article 39 The period of validity of a registered trademark shall be 10 years, counted from the day the registration is approved.

Article 40 Where a trademark registrant intends to continue using the registered trademark upon expiry of the validity period of registration, the trademark registrant shall go through the renewal procedure within 12 months prior to the expiry date in accordance with relevant provisions; where the registrant fails to do so during the said time limit, an extension of six months may be granted. Each renewal of registration shall be valid for ten years calculating from the date immediately following the expiry date of the last validity period of the trademark. If no application for renewal is filed upon expiry of the extension period, the registered trademark shall be cancelled.

The trademark office shall announce the trademarks whose registration has been renewed.

Article 41 If a change needs to be made in the name or address of the owner of a registered trademark or in any other registered matter, an application for the change shall be filed.

Article 42 To assign a registered trademark, the assignor and assignee shall sign an assignment agreement and jointly file an application with the trademark office. The assignee shall guarantee the quality of the goods on which the registered trademark is used.

When transferring a registered trademark, the trademark registrant shall transfer, along with it, other similar trademarks he has registered for the same kind of goods, and other identical and similar trademarks he has registered for similar goods. The trademark office shall not approve the transfer of a registered trademark that is likely to cause confusion or result in other unfavorable effects, and shall notify the applicant concerned in writing and explain the reasons therefor.

After the assignment of a registered trademark is approved, it shall be announced. The assignee shall enjoy the exclusive right to the use of the trademark starting from the date the announcement is made.

Article 43 The owner of a registered trademark may, by concluding a trademark licensing contract, authorize another person to use his registered trademark. The licensor shall supervise the quality of the goods on which the licensee uses his registered trademark, and the licensee shall guarantee the quality of the goods on which the registered trademark is to be used.

If any person is authorized to use the registered trademark of another person, the name of the licensee and the origin of the goods shall be indicated on the goods that bear the registered trademark.

A licensor who licenses others to use his registered trademark shall submit the trademark licensing to the trademark office for file, and the trademark office shall announce the trademark licensing. Without filing, the trademark licensing shall not be used against a bona fide third party.

Chapter V Declaration of the Invalidity of Registered Trademarks

Article 44 A registered trademark shall be declared invalid by the trademark office if it is in violation of Article 4, Article 10, Article 11, Article 12 or the fourth paragraph of Article 19 of this Law, or its registration is obtained by fraudulent or other illegitimate means. Other entities or individuals may request the trademark review and adjudication board to declare the aforesaid registered trademark invalid.Where the trademark office makes a decision on declaring a registered trademark invalid, it shall notify the party concerned in writing of the decision. If a party concerned is dissatisfied with the decision made by the trademark office, he may apply for a review with the trademark review and adjudication board within 15 days upon the receipt of the notice from the trademark office. The trademark review and adjudication board shall make a decision and notify the party concerned in writing within nine months upon the receipt of the application for review. Where it is necessary under special circumstances, an extension of three months may be granted upon approval by the administrative department for industry and commerce of the State Council. If a party concerned is dissatisfied with the decision made by the trademark review and adjudication board, he may bring a lawsuit to the people's court within 30 days upon the receipt of the notice from the trademark review and adjudication board.

Where other entities or individuals request the trademark review and adjudication board to declare a registered trademark invalid, the latter shall, upon receipt of the application, notify the party concerned in writing, and require the party concerned to respond within a time limit. The trademark review and adjudication board shall, within nine months upon the receipt of the application, render a ruling on either maintaining the validity of the registered trademark or declaring the registered trademark invalid, and notify the party concerned in writing. Where it is necessary under special circumstances, an extension of three months may be granted upon approval by the administrative department for industry and commerce of the State Council. If the party concerned is dissatisfied with the ruling made by the trademark review and adjudication board, he may bring a lawsuit to the people's court within 30 days upon the receipt of the notice, in which case the people's court shall notify the counterparty to the trademark ruling procedures to participate in the litigation proceedings as a third party.

Article 45 Where a registered trademark is in violation of the second and third paragraph of Article 13, Article 15, the first paragraph of Article 16, Article 30, Article 31 or Article 32 of this Law, the holder of prior rights or an interested party may, within five years upon the registration of the trademark, request the trademark review and adjudication board to declare the registered trademark invalid. Where the aforesaid registration is obtained mala fide, the owner of a well-known trademark is not bound by the five-year restriction.

The trademark review and adjudication board shall, after receiving an application for declaring the registered trademark invalid, notify the party concerned as such in writing, and require the party concerned to respond within a time limit. The trademark review and adjudication board shall, within 12 months upon the receipt of the application, render a ruling on either maintaining the validity of the registered trademark or declaring the registered trademark invalid, and notify the party concerned as such in writing. Where it is necessary under special circumstances, an extension of six months may be granted upon approval by the administrative department for industry and commerce of the State Council. If the party concerned is dissatisfied of the ruling made by the trademark review and adjudication board, he may bring a lawsuit to the people's court within 30 days upon the receipt of the notice, in which case the people's court shall notify the counterparty to the trademark ruling procedures to participate in the litigation proceedings as a third party.

In reviewing an application for declaring a registered trademark invalid pursuant to the preceding paragraph, the trademark review and adjudication board may suspend the review if the prior rights involved can only be ascertained based on the outcomes of another case currently under the hearing by a people's court or under the handling by an administrative organ. The trademark review and adjudication board shall resume the review procedure once the circumstances for suspension are eliminated.

Article 46 Upon the expiry of the statutory time limit, if the party concerned fails to apply for review of the trademark office’s decision on declaring a registered trademark invalid, or fails to bring a lawsuit to the people's court against the trademark review and adjudication board’s review decision or its ruling on maintaining the validity of a registered trademark or declaring a registered trademark invalid, the trademark office’s decision or the trademark review and adjudication board’s review decision or ruling shall become effective.

Article 47 A registered trademark that is declared invalid in accordance with Article 44 or Article 45 of this Law shall be announced by the trademark office, and the exclusive right to use the registered trademark thereof shall be deemed as non-existent ab initio.

The decision or ruling on declaring a registered trademark invalid shall have no retroactive effect on a judgment, ruling or mediation statement on a trademark infringement case already rendered and enforced by a people's court, a decision on handling a trademark infringement case already made and enforced by an administrative department for industry and commerce as well as a trademark transfer or licensing contract already performed prior to such declaration. However, the trademark registrant shall be liable for compensation where losses are caused, mala fide, to another party.

Trademark infringement damages, trademark transfer fees or trademark royalties shall be refunded fully or partially if the non-refund thereof pursuant to the preceding paragraph is in obvious violation of the principle of fairness.

Chapter VI Administrative Control of the Use of Trademarks

Article 48 For the purpose of this Law, the use of trademarks shall refer to the use of trademarks on goods, the packaging or containers of goods and the transaction documents of goods, as well as the use of trademarks for advertising, exhibition and other commercial activities for the purpose of identifying the sources of goods.

Article 49 A trademark registrant that，without authorization, makes alternations with respect to the registered trademark, the name or address of the registrant or other registration items during the use of the registered trademark shall be ordered to make correction within a time limit by the relevant local administrative department for industry and commerce; if it fails to make correction within the prescribed time limit, the trademark office shall cancel the registered trademark thereof.

Where a registered trademark has become the generic name of the goods for which its use is approved or a registered trademark has not been put in use for three consecutive years without a justifiable reason, any entity or individual may apply to the trademark office for revocation of the registered trademark, and the trademark office shall make a decision within nine months upon the receipt of the application. Where it is necessary under special circumstances, an extension of three months may be granted for making a decision upon approval by the administrative department for industry and commerce of the State Council.

Article 50 Within one year from the time where a registered trademark is cancelled or declared invalid, or is not renewed upon the expiry of its validity period, the trademark office shall not approve any application for registration of a trademark identical with or similar to the aforesaid trademark..

Article 51 In the event of a violation of the provisions of Article 5 of this Law, the local administrative department for industry and commerce shall order the violator to file an application for registration within a time limit and if the illegal business revenue is RMB 50,000 yuan or more, a fine of up to 20% of the illegal business revenue may be imposed; if there is no illegal business revenue or the illegal revenue is less than RMB 50,000 yuan, a fine of up to RMB 10,000 yuan may be imposed.

Article 52 Where a party passes off an unregistered trademark as a registered trademark or uses an unregistered trademark in violation of Article 10 of this Law, the relevant local administrative department for industry and commerce shall stop such acts, order the party to make correction within a time limit, and may circulate a notice on the matter. If the illegal business revenue is RMB 50,000 yuan or more, a fine of up to 20% of the illegal business revenue may be imposed; if there is no illegal business revenue or the illegal business revenue is less than RMB 50,000 yuan, a fine of up to RMB 10,000 yuan may be imposed.

Article 53 Whoever violates the fifth paragraph of Article 14 of this Law shall be ordered to make correction by the relevant local administrative department for industry and commerce, and be imposed with a fine of RMB 100,000 yuan.

Article 54 A party concerned who has objection to the decision made by the trademark office on revoking or not revoking a registered trademark may apply for review to the trademark review and adjudication board within 15 days upon receipt of the notification of the decision. The trademark review and adjudication board shall, within nine months upon the receipt of the application, make a decision and notify the party concerned in writing. Where it is necessary under special circumstances, an extension of three months may be granted upon approval by the administrative department for industry and commerce under the State Council. The party concerned who has objection to the decision made by the trademark review and adjudication board may bring a lawsuit to the people's court within 30 days from the date the notification is reviewed.

Article 55 Upon expiry of the statutory time limit, if the party concerned fails to apply for review of the trademark office’s decision on revoking a registered trademark, or fails to bring a lawsuit to the people's court against a review decision made by the trademark review and adjudication board, such a decision or review decision shall become effective."

The trademark office shall make an announcement on the registered trademark that is revoked. The exclusive right to use the aforesaid registered trademark shall terminate as of the date of announcement.

Chapter VII Protection of the Exclusive Right to the Use of a Registered Trademark

Article 56 The exclusive right to the use of a registered trademark shall be limited to trademarks which are registered upon approval and to goods the use of a trademark on which is approved.

Article 57 Any of the following acts shall constitute an infringement on the exclusive rights to the use of a registered trademark:

(1) Using a trademark that is identical with a registered trademark on the same kind of goods without obtaining licensing from the registrant of the registered trademark;

(2) Using a trademark that is similar to a registered trademark on the same kind of goods, or using a trademark that is identical with or similar to the registered trademark on similar goods without obtaining licensing from the registrant of the registered trademark, and is likely to cause confusion

(3) selling goods that infringe on the exclusive right to the use of a registered trademark;

(4) counterfeiting, or making without authorization, representations of another person's registered trademark, or selling such representations;

(5) altering a registered trademark without permission of its owner and selling goods bearing such an altered trademark on the market;

(6) Providing, intentionally, convenience for such acts as infringe upon others' exclusive right of trademark use, to facilitate others to commit infringement on the exclusive right of trademark use

(7) impairing in other manners another person's exclusive right to the use of its registered trademark.

Article 58 Whoever uses a registered trademark or an unregistered well-known trademark of another party as the trade name in its enterprise name and mislead the public, which constitutes unfair competition, shall be dealt with in accordance with the Anti-unfair Competition Law of the People's Republic of China.

Article 59 The holder of the exclusive right to use a registered trademark shall have no right to prohibit others from properly using the generic name, graphics or models of a commodity contained in the registered trademark, or such information as directly indicates the quality, main raw materials, functions, purposes, weight, quantity or other features of the commodity, or the names of the geographical locations as contained therein.

The holder of the exclusive right to use a registered trademark that is a three-dimensional symbol shall have no right to prohibit others from properly using such forms as contained in the registered trademark due to the inherent nature of a commodity or the commodity forms necessary for achieving technological effects or the forms that bring substantive value to the commodity as contained therein.

Where, before a trademark registrant applies for registration of a trademark, another party has used a trademark that is of certain influence and is identical with or similar to the registered trademark on the same kind of goods or similar goods, the holder of the exclusive right to use the registered trademark shall have no right to prohibit the said party from continued use of the trademark within the original scope of use, however, the holder may require the latter to add a proper mark for distinguishment.

Article 60 A dispute that arises from an acts infringing upon the exclusive right to use a registered trademark prescribed in Article 57 of this Law shall be settled by the parties concerned through consultation. Where the parties concerned are unwilling to engage in consultation or a consultation has failed, the trademark registrant or an interested party may bring a lawsuit to the people's court, or request the relevant administrative department for industry and commerce to address the dispute.

When addressing the dispute, if the administrative department for industry and commerce is of the opinion that the infringement is established, it shall order the relevant party to immediately cease the infringing acts, and shall confiscate and destroy the infringing goods and instruments mainly used for manufacturing the infringing goods and forging the registered trademark. Where the illegal business revenue is RMB 50,000 yuan or more, a fine of up to five times the illegal business revenue may be imposed thereon; where there is no illegal business revenue or the illegal business revenue is less than RMB 50,000 yuan, a fine of up to RMB 250,000 yuan may be imposed thereon. If a party has committed trademark infringement on two or more occasions within five years or falls under any other serious circumstances, it shall be subject to a heavier punishment. If a party is unaware of the infringing nature of such products and is able to prove that the products are obtained by legitimate means and can provide information on the suppliers of the products, it shall be ordered to stop selling the products by the administrative department for industry and commerce.

As to a dispute over the amount of damages for infringement on the exclusive right to use a trademark, the parties concerned may apply to the administrative department for industry and commerce that addresses the infringing dispute for mediation, or may bring a lawsuit to the people's court in accordance with the Civil Procedure Law of the People's Republic of China. Where the parties concerned fail to reach any agreement upon mediation by the administrative department for industry and commerce, or fail to perform the mediation agreement after it becomes effective, the parties may bring a lawsuit to the people's court in accordance with the Civil Procedure Law of the People's Republic of China.

Article 61 The administrative department for industry and commerce shall have the power to investigate any act infringing upon the exclusive right to the use of a registered trademark. Where a crime is suspected to have been committed, it shall promptly transfer the case to a judicial department for handling in accordance with law.

Article 62 When an administrative department for industry and commerce at or above the county level, on the basis of the evidence or information, obtained for a suspected violation of law, conducts investigation into a suspected infringement of another person's exclusive right to the use of a registered trademark, it may exercise the following functions and powers:

(1)questioning the parties concerned to find out the facts regarding the infringement of another person's exclusive right to the use of a registered trademark;

(2)checking and reproducing the parties' contracts, invoices, account books, and other materials relating to the infringement;

(3)conducting on-the-spot inspection of the premises where the suspected party carries out activities infringing upon another person's exclusive right to the use of a registered trademark; and

(4)inspecting articles involved in the infringement; sealing or seizing the articles that are proven to been used for infringing upon another person's exclusive right to the use of a registered trademark.

When the administrative department for industry and commerce exercises the functions and powers provided for in the preceding paragraph in accordance with law, the parties shall assist and cooperate with it and may not refuse to do so or stand in its way.

During the investigation and handling of a trademark infringement case, an administrative department for industry and commerce may suspend the investigation and handling of the case if disputes arise over the ownership of the trademark or if the right holders simultaneously bring a trademark infringement lawsuit to the people's courts. And the investigation and handling procedures shall be resumed or closed up after the circumstances for suspension are eliminated.

Article 63 The amount of damages for infringement on the exclusive right to use a trademark shall be determined based on the actual loss suffered by the right holder as a result of the infringement; if it is difficult to determine the actual loss, the amount of damages may be determined according to the profits gained therefrom by the infringer, if it is difficult to determine both the loss of the right holder and the profits gained by the infringing party, the amount of damages may be reasonably determined in reference to the multiples of the trademark for royalties. Where an infringer maliciously infringes upon another party's exclusive right to use a trademark and falls under serious circumstances, the amount of damages may be determined as no less than one time but no more than five times the amount that is determined according to the aforesaid methods. The amount of damages shall cover the reasonable expenses paid by the right holder for stopping the infringing act.

Where the right holder has exhausted its efforts in discharging the obligation of burden of proof, but the account books and materials related to the infringing acts are mainly controlled by the infringer, the people's court may, for the purpose of determining the amount of damages, order the infringer to submit account books and materials related to the infringing acts. Where the infringer fails to provide such account books or materials or provides false account books or materials, the people's court may render a judgment on the amount of damages in reference to the claims of the right holder and the evidence furnished thereby.

Where it is difficult to determine the actual loss suffered by the right holder as a result of the infringement, the profits gained by the infringer from the infringement or the royalties of the registered trademark concerned, the people's court shall render a judgment awarding damages in an amount no more than RMB five million yuan based on the circumstances of the infringing acts

When trying trademark disputes, the people’s court shall, at the request of the right holder, order to destroy the goods bearing counterfeit registered trademarks, except in special circumstances; shall order to destroy without any compensations materials and tools that are primarily used to manufacture such goods; or shall, under special circumstances, order to ban without any compensation the aforementioned materials and tools from entering into commercial channels.

Goods bearing counterfeit registered trademarks shall not be allowed to enter into commercial channels after merely removing the counterfeit registered trademarks.

Article 64 Where the holder of the exclusive right to use a registered trademark claims for damages, and the alleged infringer counterclaims that the right holder has never used the registered trademark, the people's court may require the right holder to provide evidence of its actual use of the registered trademark during the past three years prior to the lawsuit. The alleged infringer shall not be liable for compensation if the right holder is neither able to prove its actual use of the registered trademark during the past three years prior to the lawsuit, nor able to prove other losses suffered as a result of the infringement.

Where a party is unaware that the goods he sells infringe upon another party's exclusive right to use a registered trademark, and the party is able to prove that the goods are obtained by legitimate means and provide information on the suppliers of the goods, it shall not be liable for compensation.

Article 65 Where a trademark registrant or an interested party has evidence proving that another party is committing or is soon to commit an act that infringes upon the former’s exclusive right to use the registered trademark and that such an act, unless promptly stopped, will cause irreparable damage to its legitimate rights and interests, the trademark registrant or interested party may, in accordance with the law, apply to the people's court for an injunction and taking asset preservation before filing a lawsuit.

Article 66 In order to stop an infringing act, and where evidence may be destroyed or vanished, or may become unobtainable in the future, the relevant trademark registrant or interested party may, in accordance with the law, apply to the people's court for evidence preservation before filing a lawsuit.

Article 67 Where a person, without permission of the owner of a registered trademark, uses a trademark that is identical with the owner's on the same kind of goods, which constitutes a crime, he shall, in addition to compensating losses suffered by the infringed, be investigated for criminal responsibility in accordance with law.

Anyone who counterfeits or makes without permission the representations of another person's registered trademark or sells such representations which constitutes a crime, shall, in addition to compensating the losses suffered by the infringed, be investigated for criminal responsibility in accordance with law.

Anyone who knowingly sells goods bearing counterfeit registered trademarks, which constitutes a crime, shall, in addition to compensating the losses suffered by the infringed, be investigated for criminal responsibility in accordance with law.

Article 68 A trademark agency that commits any of the following acts shall be ordered to make correction within a time limit by the administrative department for industry and commerce, be given a warning, and be fined not less than RMB 10,000 yuan but not more than RMB 100,000 yuan; the persons in charge who are directly responsible and other persons directly responsible shall be given a warning and be fined not less than RMB 5,000 yuan but not more than RMB 50,000 yuan; where a crime is constituted, criminal liabilities shall be investigated in accordance with the law:

(1) Fabricating or tampering with legal documents, seals or signatures, or using fabricated or tempered legal documents, seals or signatures during the handling of trademark-related matters;

(2) Soliciting trademark agency business by defaming other trademark agencies, or disrupting the order of the trademark agency market by other unjust means; or

(3) Violating the provisions of Article 4, and the third and fourth paragraph of Article 19 of this Law.

Where a trademark agency commits an act prescribed in the preceding paragraph, the administrative department for industry and commerce shall record such matters in the credit files; if the circumstances are serious, the trademark office or the trademark review and adjudication board may concurrently decide to cease the acceptance and handling the trademark agency business submitted by the trademark agency, and shall make an announcement thereon.

The trademark agency shall bear civil liabilities in accordance with the law if it violates the principle of good faith and infringes the legitimate rights and interests of a principal, and shall be given sanctions by the trade association of the trademark agencies pursuant to its articles of association.

Where the trademark agency applies the trademark registration with bad faith, administrative punishment including warning or fine shall be imposed based on the circumstances; where a trademark lawsuit is maliciously brought, the people’s court shall impose punishment in accordance with the law.

Article 69 Functionaries of State organs engaged in trademark registration, administration, and review shall be impartial in implementing the law, honest and self-disciplined, and devoted to their duties, and shall provide services with civility.

No functionaries of State organs working in the trademark office and the trademark review and adjudication board or engaged in trademark registration, administration, and review may work for trademark agencies or engage in the manufacture or marketing of goods.

Article 70 Administrative departments or industry and commerce shall establish and improve an internal supervision system to supervise and inspect the way State organ functionaries in charge of trademark registration, administration, and review implement laws and administrative regulations and observe discipline.

Article 71 Where a State organ functionary working in trademark registration, administration, and review neglects his duty, abuses his power, and engages in malpractice for personal gain, violates the law in trademark registration, administration, and review, accepts money or things of value from a party, or seeks illegitimate interests, and where the case is so serious as to constitute a crime, he shall be investigated for criminal responsibility in accordance with law. Where the case does not constitute a crime, he shall be given sanction in accordance with law.

Chapter VIII Supplementary Provisions

Article 72 Applicants for trademark registration and persons having other trademark matters handled shall pay a fee, the specific rates of which shall be determined separately.

Article 73 This Law shall go into effect as of March 1, 1983. The Regulations on Trademark Administration promulgated by the State Council on April 10, 1963 shall be annulled simultaneously, and any other provisions concerning trademark administration that conflict with the provisions of this Law shall be nullified at the same time. Trademarks registered before this Law goes into effect shall remain valid.

Source: https://www.wipo.int/wipolex/en/legislation/details/19559

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