Amendment of “Trademark Law” will come into force in May 2014

Amendment of “Trademark Law” is adopted at the 4th Session of the Standing Committee of the Twelfth National People’s Congress of the People’s Republic of China on August 30, 2013, which will come into force in May, 2014. The highlights of Amendment lie in:

Clarify the definition of “Trademark Use”

Amendment has stipulated the methods and aim of “Trademark Use”, which can manage “Token Use”. In practice, for those trademarks which have not been used for an uninterrupted period of three years, by applying this Article, there would be more trademark removal application, and more application may be supported.

List sound trademark into the scope of trademark registration

Amendment has listed sound trademark into the scope of trademark registration, however, many issues shall be dealt with in the practical process. Firstly, a trademark shall be distinctive, Trademark Manual of Examining Procedure has not stipulated the distinctive features (including frequency and amplitude) about sound trademark.

Secondly, sound can be shown in digital, for the storage, application and announcement process, the authority shall use the digital both digital form and written form, e.g. music score, music words, etc..

Thirdly, whether the determination standard and compensation of the infringement of sound trademark could be governed by the methods of determining damages for other trademark infringements by analogy.

 The characters “well-known trademark” shall not be used on the goods, package or container of goods, nor used for commercial, exhibitions and other commercial activities. If this Article is strictly enforced, there would be less abuse of “well-known trademark” .

 Raise the punitive compensation.

In respect to bad-faith infringements of one’s exclusive right to use a trademark and instances of gross violation, the compensation amount may be in the range of 1 to 3 times the amount of the loss incurred by the rights holder, the gains derived by the infringer or the royalty paid by a registered trademark user. Where the compensation cannot be determined with the foregoing basis, the court shall be entitled to determine a statutory compensation, the ceiling for which is changed from 500,0000 Yuan to 3,000,000 Yuan.

Thus, in practice, further investigation is needed to the reasonable and implement of punitive compensation.