There are lots of businessmen who are engaging in imported business asking for questions about using trademarks on original imported products. These two ways may help you find out the answers:
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If it is an infringement to China mainland registered trademarks to use trademarks on original imported products ;
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If it is a personation of registered trademark to use trademarks of original imported products without registered mark “®” in China mainland.
What’s original imported?
“Original imported” indicates commodities imported from overseas to China mainland without further processing and packaging. Generally, using trademarks on commodities means using trademarks on commodities or their packages themselves. But here is an exception for original imported commodities. Article 27 of Product Quality Law of The People’s Republic of China stipulates that:
All marks on the products or the packages thereof shall meet the following requirements: …
(2)with name of the product, name and address of the factory that produced the product, all being marked in Chinese;
(3)with corresponding indications regarding the specifications, grade of the product, the main ingredients and their quantities contained in the product, where such particulars are to be indicated according to the special nature and instructions for using of the product; information shall be informed to customers and be indicated external packing, or relevant materials shall be provided in advance.
Accordingly, commodities imported to China mainland must be labeled with “Chinese labels” with their Chinese names or characters on the commodities or their packages. Thus, for original imported commodities, the use of trademarks includes the use of trademarks printed on original commodities or packages as well as on Chinese labels.
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Using trademark on original commodities or packages
It may result in infringement to domestic registered trademarks for using trademarks on original commodities or packages
Most of regular original imported commodities with trademark registrations have been labeled with registered trademarks on commodities or their packages. Except special commodities(such as drug), laws in China mainland does not require original imported commodities or trademarks used on packages for registration in China to enter Chinese market.
Nevertheless, the principle of territoriality of trademark right of Paris Convention states that any third party might have registered the trademarks same as or similar to those on original imported commodities.
Hence, original imported commodities with trademarks registered in exported countries (producing countries) on them or their packages are likely to face the problem of trademark infringement when enter China mainland market.
It may result in personation of domestic registered trademark for using trademarks on original commodities or packages
It is the legal right for producers to use the registered mark “®” on original imported commodities with trademark registration right in producing countries or on their packages.
However, it may result in personation of registered trademark banned by Trademark Law in China mainland to use the registered mark “®” if the above mentioned original imported commodities do not process the trademarks approved by China mainland.
Article 52 of Trademark Law: Where a party that uses an unregistered trademark has committed misrepresenting the trademark as registered, or violating the provision of Article 10 of this Law, the local administrative authority for industry and commerce shall prohibit the use of the trademark, and order the misrepresenting party to rectify the situation within a specified period;
if the amount of earnings in illegal operations amounts to more than RMB 50000, a fine shall be imposed upon that party of no less than twenty percent of the illicit earnings…
Therefore, this is an rather important and sensitive problem for businessmen engaged in original imported business.
As for some special conditions, such as branches in China established by foreign producers importing original imported commodities to Chinese market, should assist in inspecting the trademarks on commodities to avoid personation of registered trademark.
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Using trademarks on Chinese labels
It may result in infringement of China mainland registered trademarks to use trademarks on Chinese labels
Unlike the act of using trademakrs on original commodities or their packages, the act of using trademarks on Chinese labels is in line with Product Quality Law of The People’s Republic of China. Chinese label serves as a tool to help Chinese mainland customers to identify this kind of commodity.
Thus, Chinese mainland businessmen engaged in imported business should label commodities definitely and inspect to avoid same and similar registered trademarks in China.
It may result in personation for using registered mark “®” on Chinese labels
Though it is an obligatory provision of Chinese law to indicate Chinese names of commodities on Chinese labels, unlike the use of trademarks on original commodities or their packages, Businessmen engaged in import business can choose the names of trademarks and the ways to label on Chinese labels by themselves. Besides, as the above mentioned function, Chinese labels serves as a tool to help Chinese mainland customers to identify this kind of commodity.
Therefore, Chinese mainland businessmen engaged in import business should finish the trademark registration application before choosing names and labeling registered mark “®”, or should examine if the chosen names has been registered in China mainland. Otherwise, they will face the punishment for personation.
Therefore, businessmen engaged in original imported business should have knowledge of and respect relevant laws in China mainland to ensure the success and legitimacy of original imported trading in China mainland.
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Source | 中华商标杂志
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