【Key Words】 303 901 199 405
【Title】 State Administration for Industry on the implementation of the "Trademark Law" and "Regulations" Some Issues
Timeliness】 【valid
Is published by the State Industry and Commerce Bureau】
【Date】 19941122 issued by
【Date】 19,941,122 implementation
】 【Expiration date
【Content】 Trademark Registration Categories
【Number】 workers trademark characters (1994), No. 329
【Name】 State Administration for Industry on the implementation of the "Trademark Law" and "Regulations" Some Issues
THEPEOPLE
Hitherto promulgated notice

Provinces, autonomous regions, municipalities, and cities Industry and Commerce Administration:
Trademark in order to accurately understand the management of the revised 1993 "The People's Republic of China Trademark Law" (hereinafter "Trademark Law") and the second time by the State Council approved the revised "Rules for the Implementation of the PRC Trademark Law" (hereinafter referred to as " Conditions ") of the relevant provisions of the administrative enforcement of trademarks, strict accordance with the law more effectively to stop trademark infringement against trademark counterfeiting act now on the implementation of the" Trademark Law "and" Rules "notice a number of issues as follows:

1, on the industrial and commercial administrative authorities and the courts accepted the division of labor in cases of coordination
The parties on the trademark infringement dispute, may voluntarily choose the people's court, or to industry and commerce complaints. If the parties first people's court, industry and commerce is no longer the same person made the same charge placed on file accepted trademark disputes. However, following one of the admissible:
1, industry and commerce before the people's court case on file;
2, the perpetrator of the damage and social and economic order has not been any corresponding punishment, or the court only in respect of people both infringement and damages for infringement dispute hearing.

Second, with regard to the parties on the treatment of industrial and commercial administrative organ refuses to accept the decision whether to go through administrative review procedures
According to "Trademark Law" 36th, Article 19, "Rules," the fourth 10, the fourth 14 and the "Administrative Procedure Law," the 37th article, the parties to the administrative department for industry and commerce administration made a decision to may appeal the statutory time limit (15), the up-level industrial and commercial administrative organ for reconsideration, or directly to the people's court. In general, access to review procedures for the parties, only after the end of the review procedure before the court.

Third, with regard to the registered trademark of the industrial and commercial administrative organs of trademark infringement were satisfied with the decision made by the administrative processing, can apply for administrative reconsideration or bring an administrative litigation
"Trademark Law" referred to by the parties, including trademark infringement and the infringer. Therefore, the trademark registrant as a party of industry and commerce according to complaints made by the infringer have objections to the decision itself can be up an industrial and commercial administrative organ for administrative reconsideration or bring an administrative lawsuit to the court.

4, compensation for the economic losses on the order whether the issue of an administrative act
According to "Trademark Law" third 19, "Rules" fourth 13 provisions and Supreme People's Court "on implementation of the <PRC Administrative Litigation Law> Opinions on Some Issues" (Trial) "citizens, legal persons or other organizations on the executive's decision on the issue of compensation is dissatisfied, he may bring an administrative lawsuit to the people's court "requirement, industrial and commercial administrative authorities shall order the infringer to compensate the loss of the infringer shall be an administrative act. Party is dissatisfied, he may bring an administrative lawsuit to the court.

5, on administrative issues dealing with enforcement of the decision
Parties to the industrial and commercial administrative organ of the order to stop violations, fines, and ordered compensation for the loss of processing the decision, not within the statutory time limit for reconsideration, not to the people's court, nor complies with the industrial and commercial administration authorities in accordance with " Trademark Law "and" rules "apply the relevant provisions of the people's court for enforcement. Implementation costs for enforcement by the administrative department for industry and commerce advances, ultimately paid by the debtor.

6, on "knowingly", and "should know" how to understand and operational issues
Distribution of goods with counterfeit trade marks and goods infringing trademark, is caused to the trademark infringement acts. Industrial and commercial administrative authorities in investigation of such behavior, the following conditions should determine the distributor of "Trademark Law" third 18 second and the "Rules" 41th the first meaning of "knowingly" or " should know ":
1, change or replacement in the trademark and distribution of goods to be seized on the spot;
2, the same punishment after the fact offense for repeat offenders;
3, prior warnings, but not correct;
4, intends to take improper purchase channel, and the price is much lower than the known-genuine;
5, invoices, accounts and other evidence on the fraudulent accounting;
6, large-scale distribution of professional firms registered trademark counterfeiting or trademark infringement commodities of goods;
7, after the case was transferred, destroyed evidence, provide false evidence, false information;
8, the other can assume he knows or should know of the parties.
Distribution for the distributor of counterfeit trademark goods or non-trademark infringing goods knowing, non-should know, should be informed immediately cease distribution of the types of commodities, for the time to stop distribution of the species distribution of goods, may be exempted from administrative punishment, the distributor should remove infringing trademarks, trademark infringement may not re-enter the circulation of goods.

7, on how to master the "rules" 41th second in the "sufficient to cause mistake," the problem
In the same or similar goods, the registered trademark with the same or similar to other text, graphics, product names, or decoration used as sufficient to constitute a mistake, and is the source of goods produced will cause mistake, or to generate clients and registered trademark of a particular link between the mistake.

8, on the OEM has arisen by the commission should bear any legal responsibility for trademark infringement issues
Entrusted with the OEM side is commissioned by others, according to commission's request processing certain brands of goods, that they did not sell this brand of goods the right side. Entrusted with the OEM has arisen trademark infringement shall be based on commission processing contract with the commissioning party bear their respective responsibilities. Entrusted with the processing side contract, the obligation to require the Client to provide a valid authorization, or constitute a joint tort, bear the corresponding legal responsibility.

9, on the provision of evidence and burden of proof
Industry and commerce in the investigation of complaints of trademark infringement process infringement cases, the infringed party to the industrial and commercial administrative authorities shall provide the factual evidence of trademark infringement; other people to report cases, informants should provide evidence of clue.
Industrial and commercial administrative organs in trademark infringement cases investigated, the right to investigate and collect evidence, and in the administrative reconsideration or administrative proceedings, their specific administrative acts made by the burden of proof.

10, on the trademark infringement cases, the problem of illegal operations in calculating
In trademark infringement cases, all operated by the infringer infringing goods (and the stock has been sold) shall be calculated amount of illegal business. For the production, processing and trade mark infringement of goods amounted to the infringement of their illegal sales of goods and infringing goods inventory and the actual cost; the reasons for the infringer is difficult to confirm the actual cost, depending on the number of stock merchandise and the merchandise Unit sales of the product of the actual cost; no sales unit price, depending on the number of stock merchandise and the people of the same kind of infringement goods sales unit price of the product, the actual cost of stock merchandise. Infringing goods marked for dealers, the amount of its illegal distribution of the infringing goods sales and inventory of infringing goods and the purchase amount; purchase amount is difficult to confirm, and the number of its stock merchandise with the same kind of infringement of people Unit sales of goods to buy the product for the amount of stock merchandise; the infringing goods or purchase amount is higher than the cost of sales, compared to the amount of their illegal operations the cost of goods or purchase amount. The "rules" 31th, the third 12, the third 13, the third 14 as provided in the "illegal business volume", can refer to the method of calculation.