Measures of Tianjin Municipality for Certification and Protection of Famous Trademarks

Decree of Tianjin Municipal People’s Government

No. 108

Measures of Tianjin Municipality for Certification and Protection of Famous Tradmarks

The Measures of Tianjin Municipality for Certification and Protection of Famous Trademarks was adopted at the 83rd Executive Meeting of the Municipal People’s Government on 25 December 2006 and is hereby promulgated. These Measures shall go into effect as from 1 February 2007.

Dai Xianglong, Mayor

30 December 2006

Measures of Tianjin Municipality for Certification and Protection of Famous Trademarks

Article 1 There Measures are enacted in accordance with the Trademark Law of the People’s Republic of China and other pertinent laws and regulations in the light of the actual situation of this Municipality with the aim of standardizing certification and protection of famous trademarks of Tianjin Municipality, protecting the legitimate rights and interests of the owner, user of the trademarks and those of consumers.

Article 2 These Measures apply to certification and protection of famous trademarks of Tianjn Municipality.

The term ‘famous trademarks’ of Tianjin Municipality mentioned in these Measures refers to registered trademarks that enjoy a relatively higher reputation in the market of this Municipality, better known by the public and have been certified according to these Measures.

Article 3 Certification and protection of famous trademarks of Tianjin Municipality shall follow the principle of willingness, openness, fairness and justice.

Article 4 The administrative department for industry and commerce is in charge of certification and protection of famous trademarks of Tianjin Municipality.

The departments of development and reform, state-owned assets administration, quality and technology supervision, and commerce shall, within their respective responsibilities and duties, support the creation and development of famous trademarks of Tianjin Municipality.

Article 5 Applicants for certification and protection of famous trademarks of Tianjin Municipality shall meet the following requirements:

(1) The trademark has been in use for three full years in a row since the date of registration;

(2) The trademark enjoys a relatively higher reputation and recognition among the public concerned;

(3) Sound measures for use, administration and protection of the trademark are in place;

(4) The commodity bearing the trademark tops the trade of this Municipality in terms of production, sales volume, profits and market share and other major economic indexes for the past three years;

(5) The commodity bearing the trademark enjoys a stable quality and wins high satisfaction from customers; and

(6) Other conditions as required by laws, rules or regulations that go to prove the fame of the trademark.

Article 6 The owner of the trademark that resides in this Municipality shall apply to the sub-bureau of the industrial and commercial administration at his residence and the owner of the trademark that is a non-resident of this Municipality shall apply to the Municipal administration for industry and commerce for certification and protection of the trademark.

Article 7 The applicant shall submit the following written documents along with the application:

(1) The application for certification;

(2) The subject status qualifications of the applicant and the photocopies thereof;

(3) The registration certificate of the trademark and the photocopies thereof;

(4) Materials documenting the use, administration and protection of the exclusive use right of the trademark;

(5) Materials showing the use and publicity of the trademark over the past three years;

(6) Evidences showing the ranking of the commodities bearing the trademark in the trade in terms of production, sales volume, profits and taxes, market share and other major economic indexes in the recent three year;

(7) Evidences showing the quality of the commodity bearing the trademark;

(8) Sales areas of the commodity bearing the trademark;

(9) Survey showing the satisfaction rate of consumers using the commodity bearing the trademark; and

(10) Other materials as required by laws, rules and regulations.

The evidences listed in Item (6) of the preceding paragraph include the annual examination reports issued by the accountant’s firm with regard to output, sales volume, profits and taxes and other major economic indexes and the evidences issued by the pertinent trade association with regard to market share and rankings in the trade. Where the evidences by the pertinent association are not available, statistics gathered through investigation shall be presented and the method and scope for taking the statistics in the investigations shall be explained.

Article 8 The administrative department for industry and commerce shall, upon receipt of the pertinent written materials, conduct examination thereon and handle each case depending on the following:

(1) Where the application materials are complete and in conformity with the law, it shall make a decision of acceptance within five workdays from the date of receipt of the application materials;

(2) Where the application materials are incomplete or not in conformity with the law, it shall inform the applicant of the missing materials to be submitted either on the spot or within five workdays after receipt of the application materials. Where the applicant is not informed when the valid period of time expires, the materials shall be regarded as accepted from the date of receipt of the application materials; and

(3) Where the application falls out of the scope of acceptance, it shall make a decision of rejection within five workdays from the receipt of the application materials.

Where it is required to supplement application materials, the date when all the materials are submitted shall be regarded as the date of application. Where the applicant refuses to supplement or cannot submit all the required materials, the administrative department for industry and commerce shall make a decision of rejection thereupon.

Where the applicant refuses to accept the decision of rejection, he may apply for an administrative review or bring a lawsuit to the people’s court according to the law.

Article 9 The sub-bureau of the industrial and commercial administration shall, within three workdays after receipt of the application, submit all the application materials to the Municipal administrative department for industry and commerce.

Article 10 Regarding the applications for certification already accepted the Municipal administrative department for industry and commerce shall announce in the publicly circulated media or in the website of the Municipal administrative department for industry and commerce the list of applications accepted for initial examination and the period for public announcement shall be 30 days.

Where disagreement is voiced during the period of public announcement, the Municipal administrative department for industry and commerce shall investigate the disagreement and timely inform the pertinent parties of the results of the investigation.

Article 11 The Municipal administrative department for industry and commerce shall examine the application materials accepted in a timely manner and invite experts for participation where it is necessary. Where the authenticity of the application materials needs to be verified, it may commission pertinent agencies to conduct the verification,

Where the Municipal administrative department for industry and commerce and the agencies it commissions elicit opinions from the pertinent trade associations and organizations for protection of consumers’ rights and interests with regard to the application for certification and protection of famous trademarks of Tianjin Municipality, the latter shall assist in the efforts.

Article 12 The administrative department for industry and commerce shall keep the application materials in a proper way. Where it belongs to commercial secrets, it shall keep it confidential.

Article 13 Where functionaries of the administrative department for industry and commerce, experts and commissioned agencies and their functionaries have a direct interest with the applicants, they shall ask for withdrawal.

Article 14 Where the Municipal administrative department for industry and commerce determines upon examination that the applicant meets the requirements stipulated in these Measures, it shall certify it and confer on the owner of the trademark the certificate of the famous trademark of Tianjin Municipality.

Where the Municipal administrative department for industry and commerce determines upon examination that the applicant fails to meet the requirements stipulated in these Measures, it shall inform the applicant in writing and state the reasons.

Where the applicant refuses to accept the decision of no-certification he may apply for an administrative review or bring a lawsuit to the people’s court according to the law.

Article 15 The examination and certification of famous trademarks of Tianjin Municipality shall be accomplished within three months from the date when the period of public announcement of the list of applications under initial examination ends.

The Municipal administrative department for industry and commerce shall timely announce to the public the famous trademarks of Tianjin Municipality that have been certified.

Article 16 The famous trademarks of Tianjin Municipality shall stay valid for three years from the date of certification. Where it is needed to extend the period of certification, the pertinent unit shall apply to the Municipal administrative department for industry and commerce for extension three months before the valid period of time expires. Where the pertinent unit fails to submit an application during this time, a three months extension period shall be given. Where still no application is submitted during the extension period, the certification of the famous trademark shall be cancelled from the date when the extension period ends.

Where the application for an extension of certification satisfies the requirement of these Measures it shall be granted an extension upon examination and a public announcement shall be made thereof.

Each extension is valid for three years.

Article 17 Where a trademark has been certified as the famous trademark of Tianjin Municipality, the owner of the said trademark may use the lettering or sign of ‘famous trademarks of Tianjin Municipality’ on the designated commodities, its packages, decorations, instruction manuals or public campaigns, exhibitions or showcases.

Where a trademark has not been certified or has not been granted permission by the owner of the trademark, no organization or individual may use the lettering or sign of ‘famous trademarks of Tianjin Municipality’ on the designated commodities, its packages, decorations, instruction manuals or public campaigns, exhibitions or showcases.

Article 18 A commodity that is designated to use the certified famous trademark of Tianjin Municipality is regarded as a well-known commodity.

No organization or individual shall, without permission of the owner of the trademark, use its special name, package, decoration or use a name, package or decoration resembling the said trademark.

Article 19 Since the date when a famous trademark of Tianjin Municipality is certified and made public, if any organization or individual applies for registration of the lettering identical with or similar to the famous trademark as the name of an enterprise of the same trade, the administrative department for industry and commerce shall not approve the registration.

The owner of a certified famous trademark of Tianjin Municipality that considers the use by others of his trademark to register an enterprise may mislead the public has the right to ask the administrative department for industry and commerce to cancel the name of the said enterprise.

The administrative department for industry and commerce shall handle pertinent disputes on the principle of protecting the interest of the legitimate right owner as its first priority.

Article 20 A recording system shall be put into practice for the owner of a famous trademark of Tianjin Municipality when he participates in the annual examination of enterprises.

Article 21 Where the owner of a certified famous trademark of Tianjin Municipality asks for protection of his trademark as a famous trademark, the administrative department for industry and commerce shall provide pertinent professional guidance and service.

Article 22 The Municipal administrative department for industry and commerce shall inform its counterparts of other provinces and municipalities under the Central Government of the certified famous trademarks of Tianjin Municipality with the purpose of protecting famous trademarks of Tianjin Municipality and the commodities bearing the trademarks.

Where the exclusive use rights of the famous trademarks of Tianjin Municipality are encroached upon in other provinces and municipalities, the Municipal administrative department for industry and commerce shall, within its powers and duties, assist the owner and user of the trademark in safeguarding their legitimate rights and interests.

Article 23 Where the owner of a certified famous trademark of Tianjin Municipality changes the items in the registration, transfers the trademark ownership or grants the use right to others, he shall file on the record at the Municipal administrative department for industry and commerce within 30 days from the date when the changes are approved or the permission contract comes into effect. Where it is needed to issue a new certificate of the famous trademark of Tianjin Municipality, the Municipal administrative department for industry and commerce shall revoke the old certificate.

Article 24 The owner of the certified famous trademark of Tianjin Municipality shall be held responsible for the quality of the commodity bearing the trademark and safeguard the reputation of the famous trademark of Tianjin Municipality. He is forbidden to produce and sell shoddy and substandard commodities and to cheat consumers by passing shoddy commodities off as good.

The Municipal administrative department for industry and commerce shall set up and improve a mechanism by which to deal with complaints with regard to famous trademarks of Tianjin Municipality. Every unit or individual has the right to complain to the Municipal administrative department for industry and commerce when they find a certified famous trademark of Tianjin Municipality does not conform to the provisions of these Measures or goes against laws, rules and regulations.

Article 25 Where the registered trademark of a certified famous trademark of Tianjin Municipality is revoked or cancelled according to the law, the certificate of the said famous trademark of Tianjin Municipality shall become null and void automatically.

Article 26 Where anyone wins certification of the famous trademark of Tianjin Municipality by fabricating documents and by other fraudulent means, the Municipal administrative department for industry and commerce shall revoke the certification and make a public announcement to that effect.

Article 27 Where anyone, in violation of Paragraph 1 of Article 17 of these Measures, uses the lettering or signs of famous trademarks of Tianjin Municipality beyond the scope allowed for such famous trademarks, the administrative department for industry and commerce shall order him to make corrections within a specified period of time. Where he refuses to make corrections and the offence is serious, the administrative department shall penalize him with a fine of not less than 2,000 yuan but not more than 10,000 yuan. Where the offence is serious and exerts a pernicious impact on society the Municipal administrative department for industry and commerce shall revoke the certification of its famous trademark of Tianjin Municipality.

Article 28 Where anyone, in violation of Paragraph 2 of Article 17 of these Measures, uses the lettering or signs of famous trademarks of Tianjin Municipality without authorization, the administrative department for industry and commerce shall order him to make corrections and penalize him with a fine of not less than 5,000 yuan but not more than 30,000 yuan.

Article 29 Where anyone, in violation of the provisions of Article 18 of these Measures, engages in unfair competition, the administrative department for industry and commerce shall order him to stop the illegal activities and confiscate the illegally gotten gains and may impose a fine of one to three times the illegally gotten gains depending on the seriousness of the offence. Where the offence is serious it may revoke its business licence. Where the offence is serious enough to constitute a crime in the sale of shoddy and substandard commodities, the person concerned shall be investigated for criminal responsibilities according to the law.

Article 30 Where anyone, in violation of the provisions of Article 23 of these Measures, fails to file for the record at the administrative department for industry and commerce, the administrative department for industry and commerce shall order him to make corrections within a specified period of time

Article 31 Where anyone, in violation of provisions of Article 24 of these Measures, produces and sells shoddy commodities or cheats consumers by passing off shoddy commodities as good, the administrative department for industry and commerce shall order him to make corrections. Where the offence is serious and exerts a pernicious impact on society the Municipal administrative department for industry and commerce shall revoke the certification of its famous trademark of Tianjin Municipality and make a public announcement to that effect. Where it is otherwise stated in laws, rules and regulations in regard of the said illegal activities, the department concerned shall handle the case in a timely manner.

Article 32 Functionaries of the administrative department for industry and commerce that neglect their duties, abuse their powers, resort to malpractice for selfish gains shall be served administrative sanctions. Where the offence is serious enough to constitute a crime the offender shall be investigated for criminal responsibilities according to the law.

Article 33 The provisions of these Measures regarding commodities trademarks shall also apply to service trademarks, collective trademarks and evidence trademarks.

Article 34 These Measures shall go into effect as from 1 February 2007.