国务院关于办理商标注册附送证件问题的批复 附：中华人民共和国商标法实施细则（二）

er VI of the Trademark Law and Chapter V of these Rules may， within Fifteen days of receipt of the notification of the decision， apply to the administrative authority for industry and commerce at the higher level for reconsideration of the decision. Said authority at the higher level shall render a decision within two months of receipt of the application for reconsideration. Interested parties dissatisfied with the reconsideration decision may， within fifteen days of receipt of the notification of the decision， institute legal proceedings in the people's court. Incases when no application for reconsideration has been filed， no legal proceedings instituted or there is no on-going performance related to the decision by the expiration of the specified period， the administrative authority for industry and commerce shall request that the relevant people's court execute compulsory action thereof.

　　Chapter VI Protection of Exclusive Rights to Use a Registered Trademark

　　Article 41 The following acts shall constitute infringements of the exclusive rights to use a registered trademark as referred to in Item （4） of Article 38 of the Trademark Law：

　　（1） Knowingly or otherwise dealing in goods which infringe on the exclusive rights of another person to use a registered trademark；

　　（2） Using any word， phrase or device identical with， or similar to a registered trademark of another person used for same or similar goods， as the designation or design of goods which is sufficient to mislead the public； and

　　（3） Intentionally providing any person with facilities related to storage， transportation， postal services and concealment which infringe on the exclusive rights of another person to use a registered trademark.

　　Article 42 In cases involving infringements on the exclusive rights of another person to use a registered trademark， any interested party may lodge a complaint or report the case of infringement to the administrative authority for industry and commerce at or above the county level in the reference location of the in ringer or location of the actu

al act of infringement. The trademark registrant may otherwise institute legal proceedings directly with people's courts.

　　When determining infringements on the exclusive rights of a person to use a registered trademark， the administrative authority for industry and commerce may exercise the following functions and powers to investigate and obtain evidence：

　　（1） Conduct direct inquiries with interested parties in the case；

　　（2） Inspect all articles related to the act of infringement， and when necessary order the confiscation of same；

　　（3） Investigate all acts of infringement； and

　　（4） Examine or reproduce all contracts， accounts and any other commercial data connected with the act of infringement.

　　Interested parties are required to participate fully when the administrative authority for industry and commerce exercises the functions and powers outlined in the preceding paragraph.

　　Article 43 The administrative authority for industry and commerce may take the following action to halt infringements on the exclusive rights of a person to use a registered trademark：

　　（1） Issue an order to immediately cease and desist from the sale of such goods；

　　（2） Seize and destroy illegal representations of the trademark in question；

　　（3） Order the counterfeit trademark be removed from remaining goods；

　　（4） Seize molds， plates and any other paraphernalia directly related to infringements on the exclusive rights of a person to used a trademark； and

　　（5） Order and supervise the destruction of articles related to the infringement in cases where it is unable to halt acts of infringement according to measures outlined in the preceding four sub-paragraphs， or if it is impossible to separate the infringing trademark from the goods.

　　Where infringements of the exclusive right to use a registered trademark are not considered serious enough to constitute a crime， the administrative authority for industry and commerce may， in accordance with the seriousness of the case， impose a fine not exceeding 50% of the volume of the illegal business， or five times profits earned as a result of the infringement. With regard to representatives of an organization directly responsible for infringements on the exclusive rights of a person to use a registered trademark， the administrative authority for industry and commerce may， in accordance with the seriousness of the case， impose a fine not exceeding 10，000 RMB Yuan.

　　The administrative authority for industry and commerce may， at the request of the trademark registrant， order infringing party to pay compensation for damages suffered by the former. Interested parties dissatisfied therewith may institute legal proceedings with the relevant people's court.

　　Article 44 Interested parties dissatisfied with the decision made by the administrative authority for industry and commerce under the provisions of Paragraph 1 and 2 of the preceding article may， within fifteen days of receipt of the notification of the decision， apply to the administrative authority for industry and commerce at the higher level for reconsideration of the decision. Said authority at the higher level shall render a decision within two months of receipt of the application for reconsideration. Thereafter， interested parties dissatisfied with the reconsideration decision may， within fifteen days of receipt of the notification of the decision， institute legal proceedings with the relevant people' court. In cases when no application for reconsideration has been filed， no legal proceedings instituted， or there is no on-going performance related to the decision by the expiration of the specified period， the administrative authority for industry and commerce shall request that the relevant people's court execute compulsory action thereof.

　　Article 45 Where any person misrepresents the registered trademark of another pe

rson， any interested party may lodge a complaint with， or report the violation， to the administrative authority for industry and commerce， or appropriate procuratorial agency.

　　Complaints lodged or reports of the violation received by the administrative authority for industry and commerce shall be dealt with in accordance with provisions in Article 43 of these Rules. If cases are serious enough to constitute a crime， any person directly responsible for the infringement shall be prosecuted according to law by the responsible judicial department.

　　Chapter VII Supplementary Provisions

　　Article 46 Parties applying for review under the provisions of Article 21， 22 or 35 of the Trademark Law or Article 23 or 25 of these Rules shall do it within the specified period. In cases involving extraordinary circumstances or for various other reasons deemed fair reasons， the interested party may request an extension of thirty days before the expiration of said period. The final decision for approval or disapproval， however， rests solely with the Trademark Review and Adjudication Board.

　　Documents mailed or otherwise delivered by post shall be dated according to the date of the postmark. In cases when postmarks lack clarity， or there is no postmark， the date of receipt or the mailing date by the interested party respectively shall be twenty days after the Trademark Office dispatches or twenty days before the Trademark Office receives the document in question.

　　Article 47 Application forms for trademark registration or any other matters related to trademarks shall be prescribed and published by the State Administration for Industry and Commerce.

　　The schedule of fees with respect to applications for trademark registrations and for any other matters related to trademarks shall be prescribed and published by the State Administration for Industry and Commerce in accordance with the relevant state rules and regulations.

　　The Classification of Goods for the Purposes of the Registration of Trademarks shall be published by the State Administration for Industry and Commerce.

　　Article 48 Service marks in use prior to July 1， 1993， identical with， or similar to any registered service mark （other than a well-known service mark） of another party with respect to the same or similar services， may continue in accordance with relevant regulations issued by the State Administration for Industry and Commerce.

　　Article 49 The State Administration for Industry and Commerce shall be responsible for interpreting these Rules.

　　Article 50 These Rules shall enter into force on the date of promulgation

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