261
2
Nevertheless, individuals or firms who have made bond fide use of trade-marks in China prior to the first day of the first month of the 29th year of Kuang-Hsü (¿.e., China New Year, 1903) ean demand their registration in conformity with the provisions of the Regulations, or eas [may] deposit specimens of these marks with particulars of the goods on which they were used and the name of the owner. The Registration Office will prepare a special list for marks thus deposited, in the order in which they shall have been presented [and marks so deposited shall be entitled to protection as prescribed equally with registered marks].
The principle underlying the constitution of a trade-mark is that it must be shown by a drawing, by a word, letters, or characters, or by a seal or stamp clearly distinctive and easily recognizable, or by a form of the product (" forme du produit") (?), or by a fancy denomination, or by any other distinctive tokens, or, again, by a combination of several of the signs enumerated above.
It is understood that commercial names, including Hong names and the names of Societies, not being trade-marks, will be protected without necessity for registration, whether they form part of a trade-mark or not. The same applies to indications of origin and names of fixed localities, when these indications shall be joined to a commercial name.
(See comments herewith.)
Art. 2. As every question regarding the protection of industrial or commercial property belongs to the province of the Board of Commerce, it will be the duty of this Board to insure the carrying out of these Regulations.
The Board of Commerce will establish at Shanghae an office charged with the registration of trade-marks.
Art. 3. Applications may be presented directly to the Registration Office, or they may be transmitted through the maritime custom-houses of the various ports, who will send them on without delay to the Registration Office.
Art. 4. Each application for registration must be accompanied by an explanatory Memorandum [with date of first user, if any], to which must be appended a triplicate copy of the mark. The Memorandum must state the kind of goods the mark [deposited for registration] is intended to cover, and the class or sub-class under which it comes, according to the appended classification.
The applicant will furnish blocks for the publication of the deposited marks, and these marks will thereupon be published in the "Gazette."
Art. 5. If the application is in order and if there is no admissible objection to it, it will be published in the "Gazette." If no protest is made by a third party within nine months from the date of publication, registration will be proceeded with.
Applications for entry in the special list will also be published in the "Gazette.” [Blocks will not be required for the publication of marks in the special list.]
Art. 6. If several applications for registration are presented in respect of similar trade- marker covering the same class of goods and which have not yet been used, the first presented will have the right of registration. If the murk has already been used, he who shall have fitst made bonâ fide' nee of it will be entitled to registration.
(See comments herewith.)
If application is made the same day for registration of similar marks, covering similar goods, by several persons, and none of them can prove that he has used it, all the applications shall be refused unless those concerned agree among themselves as to whose mark or marks may be registered.
In the case of application for registration of a mark identical with or similar to a mark for which registration has been already refused, the consent of those who had made the prior applications is necessary for registration.
Art. 7. If within four months from the date of registration of a trade-mark in a foreign country an application is presented for registration of this mark in China, the original date of registration in a foreign country will be recognized, provided that the application is accompanied by the production of a certificate of registration in a foreign country.
Art. 8. Free [open] marks-that is to say, those generally used by all merchants or by certain classes of merchants for certain classes of goods, and which are not regarded as private marks by the usages of trade-cannot be registered. Foreign words cannot be registered as a trade-mark in respect of cotton yarn, sewing
3
cotton, and cotton piece-goods. Registration will be refused for the following marks:-
(a.) Those likely to injure public order and morals, and those calculated to deceive;
(b) Those which embody symbols or phraseology reserved for Government use, such as the Imperial seals, or the seals and signets of public offices, &c., or those which reproduce in their composition the national or military flag, or device appropriated to the reward of merit (such as the insignia of an Order);
(c.) Marks resembling marks already registered for the same goods or the same class of goods, or [resembling] marks included in the special list provided for in Article 1;
(d.) Marks not included in the definition in Article 1.
(See comments herewith.)
Art. 9. The period during which a Chinese or foreign merchant can have the exclusive right to a trade-mark is fixed at twenty years, to date from the day of registration. For marks already registered abroad, and for which registration in China is asked, the period of exclusive use in China shall count from the date of registration abroad, but in no case must it exceed twenty years.
(See comments herewith.)
Art. 10. If at the expiration of the period of exclusive use of a trade-mark it is desired to continue the exclusive right, an application for renewal of registration may be presented within the six months preceding the date of expiration.
Art. 11. If the rights of ownership in a registered mark are given up wholly or in part to another person or to another firm, the transfer of these rights must be registered.
Art. 12. The Registration Office may cancel the registration of any trade- mark which has been made in contravention of paragraphs (a), (b), and (d) of Article 8 above.
Art. 13. A request for cancellation of any registration of a free mark which may have been made, or a request for cancellation of any registration which may have been made in contravention of Article 6, and of paragraph (c) of Article 8, may be presented by those concerned; a request for cancellation may also be presented by those concerned if trade in the goods to which the mark applies has been abandoned for two [five] years by the owner of the mark.
(Sec comments herewith.)
Art. 14. Whenever the Registrar intends to refuse registration of a mark, to cancel registration, or to reject an application to register, he must, before coming to a decision, inform, in writing, those interested, and give them an opportunity of furnishing explanations.
Art. 15. Any appeal against a decision taken by the Registration Office, in accordance with Article 14, must be produced within six months from the date of the said decision.
Any person injured by the deposition of a mark to be entered in the special list, as provided for in Article 1, may demand its erasion.
The Registration Office may erase a mark from the special list when the trade to which this mark applies has been abandoned for two [five] years by its owner.
Before erasing a mark from the special list or from the register, the Registration Office must give due notice to the owner, who will have the right to be heard.
Any proprietor of a mark may withdraw it from the special list or demand its erasion from the register.
If the Registration Office refuses to register a trade-mark, cancels registration, or rejects an application for registration of a trade-mark, any one who considers himself injured by these acts may bring the cuse before a Commission composed of a member or several members of the Board of Commerce, and, if necessary, of the Consul or Consuls of the foreigner or foreigners concerned or of the deputies of the Consuls,
(See comments herewith.)
No comments yet.
Private notes are available after approval.