In order to implement the spirit of "strengthening the legal protection of intellectual property rights" in the report of the 20th National Congress of the Communist Party of China, standardize trademark agency behavior, improve the quality of trademark agency service, maintain the normal order of trademark agency market, and promote the healthy development of the industry, In accordance with the Trademark Law of the People's Republic of China (hereinafter referred to as the Trademark Law), the Regulations for the Implementation of the Trademark Law of the People's Republic of China (hereinafter referred to as the Regulations for the Implementation of the Trademark Law) and other relevant laws and administrative regulations, the Provisions on the Supervision and Administration of Trademark Agency (hereinafter referred to as the Provisions) are formulated.
The relevant information is as follows:
1、 Background and necessity
Since the promulgation and implementation of the Trademark Law and the Regulations for the Implementation of the Trademark Law, good social effects have been achieved in standardizing trademark agency behavior, guiding trademark agencies to standardize their operations, improving service quality, and promoting the development of the industry. However, with the rapid development of China's economy and society, there are also some new situations and problems in the field of trademark agency.
First, the legal provisions concerning trademark agency need to be improved. The relevant provisions of the Trademark Law and the Regulations for the Implementation of the Trademark Law need to be refined and implemented through departmental rules, especially the latest revision of the Trademark Law in 2019 on regulating applications for malicious trademark registration, in order to deal with complex problems arising from the rapid development of the industry and provide clear legal support for the supervision of trade mark agency.
Second, the trademark agency behavior is not standardized enough, causing public concern. In recent years, with the lowering of the entry threshold of the trademark agency industry, the number of trademark agencies has soared from more than 100 in 2003 to nearly 70000. While the number has increased dramatically, there are not many agencies that actually have a certain amount of business. Some agencies are not managed in a standardized way, their service quality is uneven, and even engaged in or helped clients to engage in malicious squatting, hoarding of trading trademarks, improper rights protection and other illegal acts, It not only harms the legitimate rights and interests of the parties, but also disturbs the market order, has a negative impact on the development of the industry, and brings great challenges to industry supervision and governance. It is urgent to further strengthen the effective regulation of trademark agency.
Third, the legal authorization of trademark agency supervision is insufficient, and there is no clear basis for law enforcement. With few supervision means, weak supervision power and insufficient credit supervision, it is necessary to further standardize the work process and strictly administer according to law.
Therefore, in order to enhance the operability of laws and regulations, adapt to the practical needs of the development of the trademark agency industry, solve problems in practice, and promote the high-quality development of the trademark agency industry, it is necessary to formulate this provision.
2、 Drafting process
In March 2018, the former Trademark Office of the State Administration for Industry and Commerce launched the drafting of the Provisions on the Supervision and Administration of Trademark Agency. After the institutional reform, the State Intellectual Property Office continued to promote, fully drawing on the regulatory experience of patent agency, lawyers and other industries, combined with the practical needs and work practices of the trademark agency industry, and formed the draft for comments on the basis of widely soliciting opinions from local departments, industry organizations, trademark agencies and market entities responsible for intellectual property work, From September 24 to October 24, 2020, we will solicit public opinions through the Chinese government's legal information network. At the same time, opinions and suggestions from relevant ministries and commissions, local departments responsible for intellectual property, industry organizations, agencies, enterprises, experts and scholars were widely solicited. After studying, absorbing and adopting the opinions of all parties, further improving the regulations and forming a draft for review, it will be submitted to the State Administration of Market Supervision and Administration for legal review in December 2020.
The State Intellectual Property Office actively cooperates, after fully studying, absorbing and adopting the opinions of all parties, it will revise the draft regulations, which will be implemented from December 1 after being reviewed and approved by the Executive Board of the State Administration of Market Supervision on October 27, 2022.
3、 Drafting ideas and main contents
The drafting ideas of the regulations are mainly as follows: First, improve the legal system of trademark agency, sort out and refine relevant legal provisions, and ensure the implementation of the law; The second is to define the norms of trademark agency behavior, urge trademark agencies to regulate their operations, and improve the agency service level and quality; The third is to optimize the way of trademark agency supervision, strengthen prior filing and in-process and post supervision, protect the legitimate rights and interests of the parties, and improve the efficiency of supervision.
There are 43 articles in five chapters, and the key contents include:
It mainly stipulates the purpose of the regulation, trademark agency matters, the concept of trademark agency and trademark agency practitioners, and the role of industry organizations. (Articles 1 to 4)
（2） Standardize the filing system of trademark agencies
In order to better safeguard the interests of the client, improve the filing system of the trademark agency, urge the timely filing in accordance with the law, and give play to the information disclosure role of the filing system, the requirements for the trademark agency to handle the filing, continue the filing, change the filing, and cancel the filing have been stipulated, providing specific guidance for the agency. The dynamic liquidation of the agency is realized by setting a three-year filing validity period. Administrative penalties have been imposed on trademark agencies that fail to handle the filing, change filing, continuation filing, or cancellation filing according to law, or fail to properly handle the unfinished trademark agency business, damage the interests of the client, or disrupt the order of the trademark agency market. At the same time, it is stipulated that the State Intellectual Property Office shall publicize the recorded information to facilitate public supervision. (Articles 5 to 9 and 36)
（3） Clarify the code of conduct for trademark agency
First, the basic principles of trademark agency business should be clarified. Trademark agencies should not take unfair means such as fraud and deception to engage in trademark agency business, and should not damage national interests, social and public interests and the legitimate rights and interests of others; A trademark agency shall not apply for registration in the name of its legal representative, shareholder, partner, actual controller, or senior manager, or accept any trademark other than its agency services, nor shall it engage in the above acts in disguised form by establishing a separate market subject or a market subject with which it has an associated relationship.
Second, trademark agencies are required to establish and improve business management systems and operation systems such as quality management, conflict of interest review, malicious application screening, and file management.
Third, it reiterated the obligations that the trademark agency and its employees should perform, including notification, confidentiality, signature responsibility, etc., and made clear that the trademark agency should timely submit relevant materials to the client, stipulating that the trademark agency employees should not concurrently work in more than two trademark agencies.
Fourth, in view of the low price malicious competition, false publicity and other chaos in the trademark agency industry, trademark agencies are required to strengthen professional ethics and professional discipline education, organize business learning, and follow the principles of voluntariness, fairness, honesty and credibility to collect fees.
Fifthly, it stipulated the publicity of basic matters and business archives of trademark agencies. (Articles 10 to 19)
（4） Enrich the means of trademark agency supervision
Refine the credit file system of trademark agencies, and carry out hierarchical and classified evaluation of intellectual property services. In accordance with the relevant provisions of the State, the trademark agencies shall submit annual reports and be included in the list of serious violations and dishonesty, strengthen information publicity, and improve the information sharing, notification of investigation and handling, business guidance and other coordination mechanisms between the market supervision and management departments and the intellectual property management departments. In the process of daily supervision of trademark agency business activities, we should clarify the cooperation obligations of the parties, and make full use of interviews, suggestions and other means to further enhance work efficiency. (Articles 20 to 26)
（5） Improve the handling measures for illegal acts of trademark agency
We have refined the illegal acts of trademark agency listed in Article 68 of the Trademark Law and Article 88 of the Regulations for the Implementation of the Trademark Law, and will help maliciously apply for the registration of trademarks related to emergencies, public figures, hot spots of public opinion, etc., bribe or transfer benefits to personnel engaged in trademark registration and management, employ personnel who have been engaged in trademark registration and management in violation of employment restrictions The acts of deceiving the public through false publicity, helping the client transfer the registered trademark applied for maliciously when he knows or should know, accepting his entrustment when he knows or should know that the client abuses the trademark right, and instructing the client to abuse the trademark right are clearly included in the scope of supervision.
Strengthen the supervision of trademark agency business through the network, list typical illegal acts, and set corresponding penalties to prevent vicious competition. Standardized the handling measures taken by relevant departments to stop accepting trademark agency business and resume accepting business. Improve the restrictive requirements for the practice, and make it clear that when a trademark agency is stopped from accepting trademark agency business or fails to properly handle the unfinished trademark agency business, the person in charge of the trademark agency, the person directly responsible, and the shareholders and partners who are responsible for management are not allowed to appoint a new person in charge, shareholder, or partner in the trademark agency, Prevent evasion of punishment through new institutions.
At the same time, it stipulates the supervision responsibility of the intellectual property management department, as well as the disciplinary requirements and accountability for the personnel engaged in trademark registration and management. The trademarks involved in violations of laws and disciplines should be strictly reviewed, supervised and managed in accordance with the Trademark Law and relevant laws and regulations, and handled in a timely manner. (Articles 37 to 39)
In addition, the provisions also specify that if there are other provisions in laws and regulations on the handling of illegal acts of trademark agency's business activities, such provisions shall prevail; In addition to complying with laws and regulations and these Provisions, law firms and lawyers engaged in trademark agency business shall also comply with other relevant provisions of the State; Any institution or individual other than a trademark agency that engages in trademark agency business and other related activities in violation of these Provisions shall be handled with reference to these Provisions. (Articles 40 to 42)
The regulation proposes targeted governance measures from multiple links such as the entry of records, practice norms, regulatory means, and penalties for violations. After implementation, it will fundamentally reverse the disorderly development and weak supervision of the trademark agency industry, and better meet the needs of high-quality development of the trademark industry.
Source: State Intellectual Property Office
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