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Trademark Examination Criteria

 

 

1. General Provision -- Distinctiveness
2. Signs That Shall Not Be Used As Trademarks
3. Signs That Shall Not Be Registered As Trademarks
4. Signs That Shall Not Be Either Used Or Registered As Tradmearks

 

1. General Provision -- Distinctiveness

  • "A trademark that is the subject of an application for registration shall have distinctive character and be capable of being readily identified and distinguished, and shall not be in conflict with the legal rights obtained earlier by other persons.

The owner of a registered trademark has the right to use the sign "Registered Trademark" or other signs indicating registration." (Chinese Trademark Law, Article 9)

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2. Signs That Shall Not Be Used As Trademarks

  • "The following signs shall not be used as trademarks:

(1) those identical with or similar to the State name, national flag, national emblem, military flag or decorations of the People's Republic of China, and those identical with the name of the particular place, or with the name or image of the symbolic building, where a central government department of the State is located;

(2) those identical with or similar to the State name, national flag, national emblem or military flag of a foreign country, unless consent has been given by the government of the country;

(3) those identical with or similar to the name, flag or emblem of an international intergovernmental organization, unless consent has been given by the organization or the public is not likely to be misled by such use;

(4) those identical with or similar to an official sign or hallmark indicating control and warranty, unless authorization has been given;

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

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

(7) those having the nature of exaggeration and fraud in advertising goods; or

(8) those detrimental to socialist morality or customs, or having other unhealthy influences.

The geographical name of an administrative division at or above the county level or a foreign geographical name well-known to the public shall not be used as a trademark, unless the geographical name has another meaning or the geographical name is used as a component part of a collective mark or a certification mark; registered trademarks consisting of or containing geographical names shall continue to be valid." (Chinese Trademark Law, Article 10)

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3. Signs That Shall Not Be Registered As Trademarks

  • "The following signs shall not be registered as trademarks:

(1) signs which consist exclusively of the generic names, designs, or model numbers of the goods in respect of which the trademark is used;

(2) signs which consist exclusively of direct indications of the quality, primary raw material, functions, intended purposes, weight, quantity or other characteristics of goods; or

(3) signs which are devoid of any distinctive character.

Signs mentioned in the preceding paragraph may be registered as trademarks if they have acquired distinctive character through use and are capable of being readily identified and distinguished." (Chinese Trademark Law, Article 11)

  • "Where a three-dimensional sign is the subject of an application for registration of a trademark, the trademark shall not be registered if it consists exclusively of the shape which results from the nature of the goods themselves, the shape of goods which is necessary to obtain a technical result, or the shape which gives substantial value to the goods." (Chinese Trademark Law, Article 12)

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4.Signs That Shall Not Be Either Used Or Registered As Tradmearks

  • "A trademark shall not be registered and its use shall be prohibited where the trademark constitutes a reproduction, an imitation, or a translation, of a well-known trademark of another person not registered in China and is likely to create confusion, if the trademark is the subject of an application for registration in respect of goods which are identical or similar to the goods to which the well-known trademark applies.

A trademark shall not be registered and its use shall be prohibited where the trademark constitutes a reproduction, an imitation, or a translation, of a well-known trademark of another person already registered in China and is likely to mislead the public and damage the interests of the owner of the registered well-known trademark, if the trademark is the subject of an application for registration in respect of goods which are not identical or similar to the goods to which the well-known trademark applies." (Chinese Trademark Law, Article 13)

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