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New China Trademark Law becomes effective as of May 1, 2014

The significant changes are summarized as below:

1. The sound can be registered as trademark.

2. Well-known trademark cannot be used for advertisement.

The new law prohibits the trademark owner from using “well-known trademark” on goods, packages or containers of the goods, advertisements, exhibitions and other business activities.

3. New article is added to prevent the unfair registration.

Where in respect of same or similar goods, a trademark is identical with or similar to the unregistered trademark of other person, which has early use in China and the applicant should know the trademark of other person based on contract,business activity or other relationship, the trademark should not be registered if other person files the opposition.

4. Multi-class application is available.

5. Time limit for examination is regulated.

China Trademark Office should complete the examination of a new trademark application within 9 months.

Unless there is a special situation, China Trademark Office should complete the examination of an opposition case within 12 months.

Unless there is a special situation, Trademark Review and Adjudication Board (TRAB) should complete the examination of review, invalidation, etc. within 12 months.

6. Resolution of conflict between trademark and trade name rights is included.

Where the registered trademark, unregistered well-known trademark of others are used as trade name, misleading the public and such use constitutes the unfair competition, the case should be handled in accordance with China Anti-unfair Competition Law.

7. Prior use of the trademark is protected.

Where in respect of same or similar goods, the other person has used the trademark which has certain influence and is identical with or similar to the registered trademark before the application date of the registered trademark, the trademark owner of the registered trademark cannot prohibit the other person from using his mark within the original scope of use.However, the trademark owner of the registered trademark can request the other person to affix distinguishable sign.

8. Statutory compensation is increased from 500,000 RMB to 3,000,000 RMB.

Where the losses suffered by the trademark owner, the profit earned by the infringer through the infringement and license fees of the registered trademark cannot be determined, the people’s court shall decide an amount of damages not more than 3,000,000 RMB.

9. Use of the registered trademark becomes the precondition of damages.

Where the trademark owner of the registered trademark cannot certify that he has used the registered trademark in the past three years and he has suffered other losses through the infringement, the infringer should not bear the compensation liability.