How to deal with violation of Article 55 of the Trademark Law?

Chapter VII Trademark Law Article 55

Name: Article 55, Chapter VII of the Trademark Law

Regulations: Trademark Law of People's Republic of China (PRC).

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Article 55

Article 55 The administrative department for industry and commerce at or above the county level may exercise the following functions and powers when investigating and dealing with acts suspected of infringing upon the exclusive right to use registered trademarks of others:

(1) Asking the parties concerned and investigating the situation related to the infringement of the exclusive right to use a registered trademark of others;

(2) consulting and copying the contracts, invoices, account books and other relevant materials related to the infringement activities of the parties;

(three) to conduct on-site inspection of the places where the parties are suspected of engaging in activities that infringe upon the exclusive right to use registered trademarks of others;

(4) Examining articles related to infringement activities; Articles that have evidence to prove that they infringe upon the exclusive right to use registered trademarks of others may be sealed up or detained.

When the administrative department for industry and commerce exercises the functions and powers prescribed in the preceding paragraph according to law, the parties concerned shall assist and cooperate, and shall not refuse or obstruct.

Explain that this article is about the functions and powers that can be exercised by the administrative department for industry and commerce at or above the county level to investigate and deal with violations of the exclusive right to use registered trademarks.

1. During the revision and deliberation of the Trademark Law, many members of the Standing Committee, localities and departments put forward the authority of the administrative department for industry and commerce to investigate and deal with violations of the exclusive right to use registered trademarks. Although it is stipulated in the Detailed Rules for the Implementation of the Trademark Law and related laws and regulations, it is not clearly stipulated in the Trademark Law. Considering the needs and actual situation of cracking down on trademark infringement and maintaining the order of socialist market economy, it is necessary to clearly stipulate the powers of the administrative department for industry and commerce to investigate and deal with trademark infringement cases in this law. Based on the above considerations, the new trademark law refers to the provisions that the relevant departments of industrial and commercial administration can exercise their functions and powers in investigating cases of product quality violations, and adds this provision.

2. The administrative department for industry and commerce shall meet the following conditions when exercising the functions and powers stipulated in this Article: First, the administrative department for industry and commerce at or above the county level has obtained evidence of suspected violation of the law, or received a report on the infringement of the exclusive right to use a registered trademark. Evidence suspected of violating the law refers to the objective facts that can basically prove that the actor has infringed on the exclusive right to use a registered trademark of others, including documentary evidence, physical evidence, audio-visual materials, witness testimony, statements of the parties, expert conclusions, inspection records and other legally effective evidence. Second, these powers can only be exercised by the administrative departments for industry and commerce at or above the county level, not by the industrial and commercial offices dispatched by the administrative departments for industry and commerce at or above the county level, nor by the Trademark Office and the Trademark Review and Adjudication Board, the subsidiaries of the administrative departments for industry and commerce.

Three, the administrative department for Industry and commerce at or above the county level may exercise the following functions and powers to investigate and deal with violations of the exclusive right to use a registered trademark:

1. Right of inquiry and investigation. That is, ask the relevant parties and investigate the situation related to the infringement of the exclusive right to use registered trademarks of others. The administrative department for industry and commerce at or above the county level shall investigate and deal with the infringement of the exclusive right to use a registered trademark, and may ask the parties concerned at their residences, workplaces and production and business premises, or order the parties concerned to accept the inquiry at a designated place, and ask the parties concerned to truthfully provide the facts they know to the administrative department for industry and commerce so as to investigate the situation related to the infringement of the exclusive right to use a registered trademark. A record shall be made of the inquiry, which shall be signed or sealed by the inquirer and the respondent. The object of inquiry is not limited to those who directly engage in the activities of infringing others' registered trademark rights, but also includes others related to the infringement. The questioning party shall not restrict or restrict the personal freedom of the questioned person in disguised form.

2. The right to consult and copy. That is, consult and copy the contracts, invoices, account books and other relevant materials related to the infringement activities of the parties. Contracts, invoices, account books and other relevant materials are evidence to record economic activities. By consulting and copying these materials, we can know whether the parties have infringed on the exclusive right to use a registered trademark, the nature, seriousness and harmful consequences of their actions, and provide a basis for the administrative department for industry and commerce to make a decision on punishment. Therefore, this article gives the administrative department for industry and commerce at or above the county level the power to consult and copy the contracts, invoices, account books and other relevant materials related to the infringement activities of the parties.

3. Right of on-site inspection. That is, on-site inspection of places where the parties are suspected of engaging in activities that infringe on the exclusive right to use registered trademarks of others. The places where the parties are suspected of engaging in infringement activities include production and processing places and business places suspected of engaging in infringement activities, places where the subject matter is printed and sold, and places where goods and trademarks are stored. The administrative department for industry and commerce at or above the county level may send people to the above-mentioned places for inspection, ascertain the facts and obtain evidence. On-site inspection shall not be carried out on the residence of the party concerned or other places unrelated to the infringement.

4. The right to inspect articles and seal up or detain articles. That is, to inspect articles related to infringement activities; Articles that have evidence to prove that they infringe upon the exclusive right to use registered trademarks of others may be sealed up or detained. The inspection of articles related to infringement activities refers to the inspection of products related to infringement activities, their packaging and trademark identification, and if necessary, the inspection of articles to find out whether the articles belong to articles that infringe the exclusive right to use a registered trademark. The so-called seizure means that the administrative department for industry and commerce at or above the county level takes seizure or other necessary measures to seize infringing articles on the spot; Without permission, no unit or individual may unseal, transfer or use it. The so-called seizure means that the administrative department for industry and commerce at or above the county level moves the infringing articles to other places for seizure and seizure. What needs to be pointed out here is that the measures of sealing up and detaining have a great influence on the parties. The administrative department for industry and commerce at or above the county level must be cautious when deciding to take this measure. This measure can only be taken when there is evidence that it is an article that infringes on the exclusive right to use a registered trademark of others. This measure cannot rely on subjective speculation, nor can it rely solely on other people's reports. The administrative department for industry and commerce at or above the county level shall, after taking the measures of sealing up and detaining, conduct inspection or appraisal in time, and make further treatment in time according to the results of inspection and appraisal. If improper sealing-up or seizure measures are found, the sealing-up or seizure measures shall be lifted immediately.

Four, the administrative department for Industry and commerce to exercise the functions and powers stipulated in this article, the parties shall assist and cooperate, and shall not refuse or obstruct. The administrative department for industry and commerce shall exercise its functions and powers according to law and be protected by law. The parties concerned shall assist and cooperate, accept inquiries and investigations, truthfully provide relevant information and materials, cooperate with the administrative department for industry and commerce to inspect relevant places and articles, consult and copy relevant materials, and shall not refuse for any reason, or even hinder the administrative department for industry and commerce from exercising its functions and powers according to law by violence, threats or other means.

Keywords: trademark law

Classification number: D923.43

Source: Interpretation of People's Republic of China (PRC) Trademark Law

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