< Attachment >: 200 1 10 About NPC Law Committee's Decision on Amending Copyright Law (Draft), Decision on Amending Trademark Law (Draft), Occupational Disease Prevention Law (Draft), Sea Area Use Law (Draft) and Decision on Amending Trade Union Law (Draft)

Two. Decision on Amending the Trademark Law (Draft)

(1) Some members of the Standing Committee put forward that strengthening trademark management should not only protect the interests of consumers, but also protect the legitimate rights and interests of producers and operators, and reflect this content in the legislative purpose of this law. Therefore, the Law Committee suggested that Article 1 of the draft be amended to read: "This Law is formulated in order to strengthen trademark management, protect the exclusive right to use trademarks, urge producers and operators to ensure the quality of goods and services, safeguard the reputation of trademarks, protect the interests of consumers and producers and operators, and promote the development of socialist market economy."

(2) Some members of the Standing Committee suggested that if two or more applicants * * * registered the same trademark, it should further stipulate that the registrant * * * shall enjoy and exercise the exclusive right to use the trademark. Therefore, the Law Committee suggested that Article 5 of the draft be amended as: "Two or more natural persons, legal persons or other organizations may apply to the Trademark Office for registration of the same trademark, and both parties shall enjoy and exercise the exclusive right to use the trademark."

(3) Some members of the Standing Committee suggested that the use of geographical indication trademarks that mislead the public should be prohibited, but such trademarks that have been registered in good faith should remain valid. Therefore, the Law Committee suggested that the first paragraph of Article 15 of the draft be amended to read: "If a trademark contains a geographical indication of a commodity and the commodity does not originate from the area marked by the indication, it shall not be registered and its use shall be prohibited; However, the registration obtained in good faith continues to be valid. "

(4) Some members of the Standing Committee and experts pointed out that some enterprises removed the registered trademarks used by others on commodities without the consent of the trademark registrant and put them into the market. This kind of behavior prevents others from creating famous brands of goods and should be restricted. Therefore, the Law Committee suggested adding a content to the infringement of the exclusive right to use a registered trademark listed in Article 36 of the draft: "Changing its registered trademark without the consent of the trademark registrant and putting the goods with the changed trademark on the market again."

(5) Some members of the Standing Committee suggested that Article 39 of the draft gives the administrative department for industry and commerce the right to seal up and detain, and it should be more clear that the condition for exercising this right is the infringement proved by evidence. Therefore, the Law Committee suggested that Item (4) of Article 39 of the draft be amended as: "Check 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. "

(6) Some members of the Standing Committee suggested that strict code of conduct should be established and supervision should be strengthened for the law enforcement and management activities of the trademark administrative department and its staff. Therefore, the Law Committee suggested adding two provisions:

1. State functionaries engaged in trademark registration, management and review must enforce the law impartially, be honest and self-disciplined, be loyal to their duties, and serve the Trademark Office, the Trademark Review and Adjudication Board and the staff of state organs engaged in trademark registration, management and appraisal, and shall not engage in trademark agency business or commodity production and business activities.

2. The administrative department for industry and commerce shall establish and improve the internal supervision system, and supervise and inspect the implementation of laws, administrative regulations and disciplines by the staff of state organs responsible for trademark registration, management and review.

(7) Article 41 of the draft stipulates that the trademark registrant or interested party may apply to the people's court for evidence preservation before bringing a lawsuit in case the evidence may be lost or difficult to obtain later. The Supreme People's Court proposed that the scope of applying for evidence preservation measures stipulated in this article is too wide and should be limited. Therefore, the Law Committee suggested that the first paragraph of Article 41 of the draft be amended to read: "In order to stop the infringement, the trademark registrant or interested party may apply to the people's court for evidence preservation before prosecution, if the evidence may be lost or difficult to obtain later."

On the morning of August 23, 2006, the Trademark Office held a consultation meeting for experts and scholars on the revision of the Trademark Law in Conference Room 304 of the General Administration. Relevant experts and scholars put forward the following main amendments around the revised draft of the Trademark Law:

1. Compared with the Patent Law, the Trademark Law has obviously failed to adapt to the rapid development of China's market economy in terms of legislative purpose, adjustment scope, trademark legal concept, trademark confirmation and trademark protection legal procedures, and should be fundamentally revised.

Second, the revision of the law should not only be organically combined with the trademark strategy in the intellectual property strategy being formulated, but also aim at the major problems that need to be solved urgently at present. The key is whether we can solve practical problems.

Third, the trademark right originates from the use of goods and the close relationship between goods and trademarks, and is not limited to the authorization of the Trademark Office. Therefore, in order to gradually introduce the concept of prior use of trademarks into legislation, in some procedures, the applicant can be required to provide evidence of use or emphasize the intention of use, thus restraining and guiding bad registration behavior.

4. Appropriate restrictions shall be imposed on natural persons applying for registered trademarks and transferring trademarks, and malicious registration and malicious trademark transactions shall be stopped.

Verb (abbreviation of verb) substantive examination of the trademark to be retained; Agree that trademark objections shall be tried by the Trademark Review and Adjudication Board, and the administrative procedures shall be reduced by one level;

In the revised draft, the procedure of invalidation of registered trademarks is introduced, and the proposal is clearly distinguished from the revocation procedure, so it is best to express it separately.

Six, in practice, similar goods are controversial, and it is suggested to determine a legal name for the commodity classification table to facilitate the unification of law enforcement.

Seven, the conflict between trademark and other prior rights is reflected in practice, especially the conflict with the name of the enterprise. It is suggested to solve the problem by amending the law.

Eight, it is suggested to cancel the provision of self-negotiation for trademark infringement, or to clarify the jurisdiction of the administrative department for industry and commerce in this case.

Wai.

9. It is suggested to refer to the revision process of patent law and conduct expert argumentation on trademark theory.

At the same time, it will be more effective to find some legal experts and set up a special group to draft the revised draft item by item.