In order to strengthen trademark management, strengthen trademark law enforcement guidance and unify law enforcement standards, this standard is formulated in accordance with the Trademark Law of People's Republic of China (PRC) (hereinafter referred to as the Trademark Law), the Regulations for the Implementation of the Trademark Law of People's Republic of China (PRC) (hereinafter referred to as the Regulations for the Implementation of the Trademark Law) and relevant laws, regulations and departmental rules.

This paper expounds the purpose and legal basis of this standard.

As a commercial mark indicating the source of goods or services, trademarks have the property of private rights, but they are also related to social public interests such as market order and consumer interests, so they are both public and social. The duality of trademarks determines that the application and use of trademarks by market participants should be subject to necessary constraints to maintain the balance between the interests of trademark owners, consumers and the public. Trademark law enforcement departments not only undertake the function of protecting trademark rights, but also manage the application and use of trademarks to ensure the normal function of trademarks and maintain the order of trademark management. Trademark management plays an important role in China's trademark legal system. Article 1 of the Trademark Law clearly stipulates that strengthening trademark management is one of its legislative purposes, and paragraph 2 of Article 7 of the Trademark Law further emphasizes that "the administrative authorities for industry and commerce at all levels should stop cheating consumers through trademark management". Chapter VI of the Trademark Law provides detailed regulations on the administration of trademark use in the form of a special chapter. The competent department of trademark law enforcement shall purify the environment for trademark registration and use, protect consumers' interests, prevent trademark infringement, promote market participants to standardize the use of trademarks, and give full play to the role of trademarks in the market economy.

According to 20 18 the State Council's institutional reform plan and China National Intellectual Property Administration's regulations on functional allocation, internal organization and staffing, China National Intellectual Property Administration is responsible for guiding trademark law enforcement and formulating relevant standards for trademark law enforcement inspection and evaluation. According to the NPC Standing Committee's Decision on the Adjustment of Administrative Organs' Responsibilities in the State Council's Institutional Reform, the the State Council Institutional Reform Plan is determined to be undertaken by the established administrative organs or administrative organs with responsibilities. Before the relevant laws and regulations are revised, the adjustment and application of relevant laws and regulations shall be undertaken by the established administrative organ or the administrative organ with responsibility. According to "the State Council's Decision on the Adjustment of Administrative Organs' Responsibilities as stipulated by Administrative Regulations in the State Council's Institutional Reform", the the State Council Institutional Reform Plan is determined to be undertaken by the established administrative organs or the administrative organs with responsibilities. Before the relevant administrative regulations are amended or abolished, the adjustment and application of the relevant administrative regulations shall be undertaken by the established administrative organ or the administrative organ with responsibility. Therefore, the trademark management responsibilities of the former Trademark Office of the State Administration for Industry and Commerce stipulated in the Trademark Law and the Regulations for the Implementation of the Trademark Law shall be borne by China National Intellectual Property Administration. Based on his responsibilities, China National Intellectual Property Administration systematically combed, summarized and refined the beneficial experiences and practices of trademark management for many years under the framework of the existing trademark legal system and in accordance with the relevant provisions of laws, administrative regulations and departmental rules, focused on typical problems in administrative law enforcement practice, and formulated standards, aiming at providing specific operational guidance for law enforcement departments to administer according to law and effectively strengthen trademark management.

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This standard is applicable to trademark law enforcement departments to investigate and deal with general trademark violations.

This article is about the scope of application of the standard.

According to the relevant laws and regulations and the "three definitions" of relevant departments, the department responsible for trademark law enforcement refers to the department that performs trademark law enforcement functions. In addition to the market supervision and management departments responsible for trademark law enforcement, it also includes the intellectual property management departments and comprehensive law enforcement departments with trademark law enforcement power, subject to the local "three decisions". Intellectual property management departments with trademark enforcement power, such as Shanghai Pudong New Area Intellectual Property Office, Changsha Intellectual Property Office, Guangzhou Development Zone Intellectual Property Office, etc.

It should be pointed out that China implements the system of parallel administrative protection and judicial protection for the exclusive right to use trademarks. Protecting the exclusive right to use a registered trademark involves not only protecting the legitimate rights of the trademark owner, but also protecting the interests of consumers and maintaining public order, protecting both private rights and public interests. However, the management of trademarks only involves protecting consumers' interests and maintaining public order, provided that users have not infringed on others' exclusive right to use registered trademarks. Therefore, they are only subject to administrative investigation, and related administrative acts are subject to judicial supervision.

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The term "general trademark violations" as mentioned in this standard refers to acts that violate the order of trademark management.

Any of the following acts is trademark infringement:

(a) in violation of the provisions of Article 6 of the Trademark Law, a registered trademark must be used but not used;

(two) in violation of the provisions of Article 10 of the Trademark Law, the use of signs that may not be used as trademarks;

(3) using the words "well-known trademarks" in commercial activities in violation of the provisions of the fifth paragraph of Article 14 of the Trademark Law;

(four) in violation of the provisions of the second paragraph of Article 43 of the Trademark Law, the trademark licensee fails to indicate its name and the place of origin of the goods;

(five) in violation of the provisions of the first paragraph of Article 49 of the Trademark Law, the trademark registrant changes the registered trademark, the name, address or other registered items during the use of the registered trademark;

(6) using an unregistered trademark as a registered trademark in violation of the provisions of Article 52 of the Trademark Law;

(7) Violating the provisions of Paragraph 2 of Article 4 of the Regulations for the Implementation of the Trademark Law and Articles 14, 15, 17, 18, 20 and 21 of the Measures for the Administration of the Registration of Collective Trademarks and Certification Trademarks, and failing to perform the obligations of managing collective trademarks and certification trademarks;

(eight) in violation of the provisions of Articles 7 to 10 of the Measures for the Administration of Trademark Printing, failing to fulfill the obligations of trademark printing management;

(9) Malicious application for trademark registration in violation of the provisions of Article 3 of Several Provisions on Regulating Trademark Registration Applications;

(ten) other acts in violation of the order of trademark management.

This article stipulates the meaning and specific types of general trademark infringement.

"Trademark is generally illegal" is a fixed expression formed in practice, which refers to an act that only violates the order of trademark management, but does not infringe on the exclusive right of others to use trademarks. The "general" in "general violation" refers to the illegal situation, not the illegal circumstances, so "general violation" is not a concept corresponding to "serious violation", but a concept different from "infringement and counterfeiting" that infringes on the exclusive right of a specific trademark. The scope of cases to which this standard applies is mainly cases that violate the order of trademark management. According to the Trademark Law, Regulations for the Implementation of Trademark Law, Measures for the Administration of Registration of Collective Trademarks and Certification Trademarks, Measures for the Administration of Trademark Printing, Several Provisions on Regulating Trademark Application and Registration, etc., this paper clarifies ten specific situations involved in general trademark violations by listing and adding bottom clauses, which are both clear and open. These ten situations involve compulsory registration, prohibition of use, publicity of well-known trademarks, licensee's obligations, change of registered items, management of counterfeit registered trademarks, collective trademarks and certification trademarks, management of trademark printing, malicious application, etc.

Article 4

According to Article 6 of the Trademark Law, Article 19 of the People's Republic of China (PRC) Tobacco Monopoly Law, and Articles 22 and 65 of the Regulations for the Implementation of the People's Republic of China (PRC) Tobacco Monopoly Law, new tobacco products such as cigarettes, cigars, packaged shredded tobacco and electronic cigarettes must use registered trademarks. Without approval and registration, they may not be produced or sold in China.

Imported cigarettes, cigars, packaged cut tobacco, electronic cigarettes and other new tobacco products sold in China must use trademarks approved and registered in China.

This article provides for the compulsory use of goods with registered trademarks.

The first paragraph of Article 4 of the Trademark Law stipulates: "If a natural person, legal person or other organization needs to obtain the exclusive right to use the trademark of its goods or services in production and business activities, it shall apply to the Trademark Office for trademark registration." Article 6 stipulates: "Goods that are required by laws and administrative regulations to use registered trademarks must apply for trademark registration, and those that have not been approved for registration shall not be sold in the market." The Trademark Law stipulates the trademark registration system, with voluntary registration as the principle and compulsory registration as the exception. For ordinary goods or services, operators only need to apply for trademark registration if they want to obtain the exclusive right to use trademarks; For goods or services that must use registered trademarks according to laws and administrative regulations, their operators must apply for trademark registration, and the use of approved registered trademarks is a prerequisite for entering the market.

Among the existing laws and administrative regulations, only the People's Republic of China (PRC) Tobacco Monopoly Law and the People's Republic of China (PRC) Tobacco Monopoly Law Implementation Regulations stipulate that goods or services with registered trademarks must be used. The first paragraph of Article 19 of People's Republic of China (PRC) Tobacco Monopoly Law stipulates: "Cigars, cigars and packaged cut tobacco must apply for trademark registration, and may not be produced or sold without approval." Article 22 of the Regulations for the Implementation of People's Republic of China (PRC) Tobacco Monopoly Law stipulates that "cigarettes, cigars and packaged cut tobacco shall use registered trademarks". Article 65 stipulates: "Electronic cigarettes and other new tobacco products shall be implemented with reference to the relevant provisions of these regulations on cigarettes." According to the above regulations, the goods that must use registered trademarks are limited to cigarettes, cigars, packaged shredded tobacco, electronic cigarettes and other new tobacco products. A registered trademark refers to a valid trademark registered in China, and its approved products should include new tobacco products such as cigarettes, cigars, packaged cut tobacco and electronic cigarettes. Imported tobacco products and imported electronic cigarettes and other new tobacco products should also comply with the above provisions. Practice has proved that on the basis of voluntary trademark registration, it is really necessary to keep the compulsory registration system on some special commodities and manage commodities through trademarks. Cigarettes, cigars, packaged shredded tobacco, electronic cigarettes and other new tobacco products are strictly controlled commodities as stipulated in the Tobacco Monopoly Law of People's Republic of China (PRC) and its implementing regulations, and their trademark registration management should also be strict, and the trademarks used must be approved and registered before they can be used.

In addition, the departmental regulations also stipulate that other special commodities must use registered trademarks. For example, Article 31 of the Measures for the Administration of Pesticide Labels and Instructions formulated by the former Ministry of Agriculture (Order No.7 of the Ministry of Agriculture 20 17) stipulates that "unregistered trademarks shall not be used for pesticide labels and instructions. If the label uses a registered trademark, it shall be marked at the four corners of the label, and the area occupied shall not exceed one ninth of the label area, and the font size of the text part shall not be greater than the font size of the pesticide name. "