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中华人民共和国著作权法实施条例 2011

中华人民共和国著作权法实施条例 2011

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国务院关于废止和修改部分行政法规的决定(节录)

中华人民共和国国务院令
第588号

《国务院关于废止和修改部分行政法规的决定》已经2010年12月29日国务院第138次常务会议通过,现予公布,自公布之日起施行。
总 理  温家宝
    二○一一年一月八日

115.将《中华人民共和国著作权法实施条例》第二十二条、第三十二条中的“依照著作权法第二十三条、第三十二条第二款、第三十九条第三款的规定”修改为“依照著作权法第二十三条、第三十三条第二款、第四十条第三款的规定”。
第二十九条中的“视为著作权法第三十一条所称图书脱销”修改为“视为著作权法第三十二条所称图书脱销”。
第三十条中的“著作权人依照著作权法第三十二条第二款声明”修改为“著作权人依照著作权法第三十三条第二款声明”。
第三十一条中的“著作权人依照著作权法第三十九条第三款声明”修改为“著作权人依照著作权法第四十条第三款声明”。
第三十六条、第三十七条第一款中的“有著作权法第四十七条所列侵权行为”修改为“有著作权法第四十八条所列侵权行为”。

以下为修改后的中华人民共和国著作权法实施条例

 

中华人民共和国国务院令
(第359号)

现公布《中华人民共和国著作权法实施条例》,自2002年9月15日起施行。
总理 朱镕基
二○○二年八月二日

第一条 根据《中华人民共和国著作权法》(以下简称著作权法),制定本条例。
第二条 著作权法所称作品,是指文学、艺术和科学领域内具有独创性并能以某种有形形式复制的智力成果。
第三条 著作权法所称创作,是指直接产生文学、艺术和科学作品的智力活动。
为他人创作进行组织工作,提供咨询意见、物质条件,或者进行其他辅助工作,均不视为创作。
第四条 著作权法和本条例中下列作品的含义:
(一)文字作品,是指小说、诗词、散文、论文等以文字形式表现的作品;
(二)口述作品,是指即兴的演说、授课、法庭辩论等以口头语言形式表现的作品;
(三)音乐作品,是指歌曲、交响乐等能够演唱或者演奏的带词或者不带词的作品;
(四)戏剧作品,是指话剧、歌剧、地方戏等供舞台演出的作品;
(五)曲艺作品,是指相声、快书、大鼓、评书等以说唱为主要形式表演的作品;
(六)舞蹈作品,是指通过连续的动作、姿势、表情等表现思想情感的作品;
(七)杂技艺术作品,是指杂技、魔术、马戏等通过形体动作和技巧表现的作品;
(八)美术作品,是指绘画、书法、雕塑等以线条、色彩或者其他方式构成的有审美意义的平面或者立体的造型艺术作品;
(九)建筑作品,是指以建筑物或者构筑物形式表现的有审美意义的作品;
(十)摄影作品,是指借助器械在感光材料或者其他介质上记录客观物体形象的艺术作品;
(十一)电影作品和以类似摄制电影的方法创作的作品,是指摄制在一定介质上,由一系列有伴音或者无伴音的画面组成,并且借助适当装置放映或者以其他方式传播的作品;
(十二)图形作品,是指为施工、生产绘制的工程设计图、产品设计图,以及反映地理现象、说明事物原理或者结构的地图、示意图等作品;
(十三)模型作品,是指为展示、试验或者观测等用途,根据物体的形状和结构,按照一定比例制成的立体作品。
第五条 著作权法和本条例中下列用语的含义:
(一)时事新闻,是指通过报纸、期刊、广播电台、电视台等媒体报道的单纯事实消息;
(二)录音制品,是指任何对表演的声音和其他声音的录制品;
(三)录像制品,是指电影作品和以类似摄制电影的方法创作的作品以外的任何有伴音或者无伴音的连续相关形象、图像的录制品;
(四)录音制作者,是指录音制品的首次制作人;
(五)录像制作者,是指录像制品的首次制作人;
(六)表演者,是指演员、演出单位或者其他表演文学、艺术作品的人。
第六条 著作权自作品创作完成之日起产生。
第七条 著作权法第二条第三款规定的首先在中国境内出版的外国人、无国籍人的作品,其著作权自首次出版之日起受保护。
第八条 外国人、无国籍人的作品在中国境外首先出版后,30日内在中国境内出版的,视为该作品同时在中国境内出版。
第九条 合作作品不可以分割使用的,其著作权由各合作作者共同享有,通过协商一致行使;不能协商一致,又无正当理由的,任何一方不得阻止他方行使除转让以外的其他权利,但是所得收益应当合理分配给所有合作作者。
第十条 著作权人许可他人将其作品摄制成电影作品和以类似摄制电影的方法创作的作品的,视为已同意对其作品进行必要的改动,但是这种改动不得歪曲篡改原作品。
第十一条 著作权法第十六条第一款关于职务作品的规定中的“工作任务”,是指公民在该法人或者该组织中应当履行的职责。
著作权法第十六条第二款关于职务作品的规定中的“物质技术条件”,是指该法人或者该组织为公民完成创作专门提供的资金、设备或者资料。
第十二条 职务作品完成两年内,经单位同意,作者许可第三人以与单位使用的相同方式使用作品所获报酬,由作者与单位按约定的比例分配。
作品完成两年的期限,自作者向单位交付作品之日起计算。
第十三条 作者身份不明的作品,由作品原件的所有人行使除署名权以外的著作权。作者身份确定后,由作者或者其继承人行使著作权。
第十四条 合作作者之一死亡后,其对合作作品享有的著作权法第十条第一款第(五)项至第(十七)项规定的权利无人继承又无人受遗赠的,由其他合作作者享有。
第十五条 作者死亡后,其著作权中的署名权、修改权和保护作品完整权由作者的继承人或者受遗赠人保护。
著作权无人继承又无人受遗赠的,其署名权、修改权和保护作品完整权由著作权行政管理部门保护。
第十六条 国家享有著作权的作品的使用,由国务院著作权行政管理部门管理。
第十七条 作者生前未发表的作品,如果作者未明确表示不发表,作者死亡后50年内,其发表权可由继承人或者受遗赠人行使;没有继承人又无人受遗赠的,由作品原件的所有人行使。
第十八条 作者身份不明的作品,其著作权法第十条第一款第(五)项至第(十七)项规定的权利的保护期截止于作品首次发表后第50年的12月31日。作者身份确定后,适用著作权法第二十一条的规定。
第十九条 使用他人作品的,应当指明作者姓名、作品名称;但是,当事人另有约定或者由于作品使用方式的特性无法指明的除外。
第二十条 著作权法所称已经发表的作品,是指著作权人自行或者许可他人公之于众的作品。
第二十一条 依照著作权法有关规定,使用可以不经著作权人许可的已经发表的作品的,不得影响该作品的正常使用,也不得不合理地损害著作权人的合法利益。
第二十二条 依照著作权法第二十三条、第三十二条第二款、第三十九条第三款的规定使用作品的付酬标准,由国务院著作权行政管理部门会同国务院价格主管部门制定、公布。
第二十三条 使用他人作品应当同著作权人订立许可使用合同,许可使用的权利是专有使用权的,应当采取书面形式,但是报社、期刊社刊登作品除外。
第二十四条 著作权法第二十四条规定的专有使用权的内容由合同约定,合同没有约定或者约定不明的,视为被许可人有权排除包括著作权人在内的任何人以同样的方式使用作品;除合同另有约定外,被许可人许可第三人行使同一权利,必须取得著作权人的许可。
第二十五条 与著作权人订立专有许可使用合同、转让合同的,可以向著作权行政管理部门备案。
第二十六条 著作权法和本条例所称与著作权有关的权益,是指出版者对其出版的图书和期刊的版式设计享有的权利,表演者对其表演享有的权利,录音录像制作者对其制作的录音录像制品享有的权利,广播电台、电视台对其播放的广播、电视节目享有的权利。
第二十七条 出版者、表演者、录音录像制作者、广播电台、电视台行使权利,不得损害被使用作品和原作品著作权人的权利。
第二十八条 图书出版合同中约定图书出版者享有专有出版权但没有明确其具体内容的,视为图书出版者享有在合同有效期限内和在合同约定的地域范围内以同种文字的原版、修订版出版图书的专有权利。
第二十九条 著作权人寄给图书出版者的两份订单在6个月内未能得到履行,视为著作权法第三十二条所称图书脱销。
第三十条 著作权人依照著作权法第三十三条第二款声明不得转载、摘编其作品的,应当在报纸、期刊刊登该作品时附带声明。
第三十一条 著作权人依照著作权法第四十条第三款声明不得对其作品制作录音制品的,应当在该作品合法录制为录音制品时声明。
第三十二条 依照著作权法第二十三条、第三十二条第二款、第三十九条第三款的规定,使用他人作品的,应当自使用该作品之日起2个月内向著作权人支付报酬。
第三十三条 外国人、无国籍人在中国境内的表演,受著作权法保护。
外国人、无国籍人根据中国参加的国际条约对其表演享有的权利,受著作权法保护。
第三十四条 外国人、无国籍人在中国境内制作、发行的录音制品,受著作权法保护。
外国人、无国籍人根据中国参加的国际条约对其制作、发行的录音制品享有的权利,受著作权法保护。
第三十五条 外国的广播电台、电视台根据中国参加的国际条约对其播放的广播、电视节目享有的权利,受著作权法保护。
第三十六条 有著作权法第四十八条所列侵权行为,同时损害社会公共利益的,著作权行政管理部门可以处非法经营额3倍以下的罚款;非法经营额难以计算的,可以处10万元以下的罚款。
第三十七条 有著作权法第四十八条所列侵权行为,同时损害社会公共利益的,由地方人民政府著作权行政管理部门负责查处。
国务院著作权行政管理部门可以查处在全国有重大影响的侵权行为。
第三十八条 本条例自2002年9月15日起施行。1991年5月24日国务院批准、1991年5月30日国家版权局发布的《中华人民共和国著作权法实施条例》同时废止。

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China Trademark Law

Trademark Law of the People’s Republic of China

(Adopted at the 24th Session of the Standing Committee of the Fifth National People’s Congress on 23 August 1982, revised for the first time according to the Decision on the Amendment of the Trademark Law of the People’s Republic of China adopted at the 30th Session of the Standing Committee the Seventh National People’s Congress, on 22 February 1993, and revised for the second time according to the Decision on the Amendment of the Trademark Law of the People’s Republic of China adopted at the 24th Session of the Standing Committee of the Ninth National People’s Congress on 27 October 2001.)

Chapter l General Provisions

Article 1 This Law is enacted for the purposes of improving the administration of trademarks, protecting the exclusive right to use trademarks, and of encouraging producers and operators to guarantee the quality of their goods and services and maintaining the reputation of their trademarks, with a view to protecting the interests of consumers, producers and operators and to promoting the development of the socialist market economy.

Article 2 The Trademark Office of the administrative authority for industry and commerce under the State Council shall be responsible for the registration and administration of trademarks throughout the country.

The Trademark Review and Adjudication Board, established under the administrative authority for industry and commerce under the State Council, shall be responsible for handling matters of trademark disputes.

Article 3 Registered trademarks mean trademarks that have been approved and registered by the Trademark Office, including trademarks, service marks, collective marks and certification marks; the trademark registrants shall enjoy the exclusive right to use the trademarks, and be protected by law.

Said collective marks mean signs which are registered in the name of bodies, associations or other organizations to be used by the members thereof in their commercial activities to indicate their membership of the organizations.

Said certification marks mean signs which are controlled by organizations capable of supervising some goods or services and used by entities or individual persons outside the organization for their goods or services to certify the origin, material, mode of manufacture, quality or other characteristics of the goods or services.

Regulations for the particular matters of registration and administration of collective and certification marks shall be established by the administrative authority for industry and commerce under the State Council.

Article 4 Any natural person, legal entity or other organization intending to acquire the exclusive right to use a trademark for the goods produced, manufactured, processed, selected or marketed by it or him, shall file an application for the registration of the trademark with the Trademark Office. Any natural person, legal entity or other organization intending to acquire the exclusive right to use a service mark for the service provided by it or him, shall file an application for the registration of the service mark with the Trademark Office.

The provisions set forth in this Law concerning trademarks shall apply to service marks.

Article 5 Two or more natural persons, legal entities or other organizations may jointly file an application for the registration for the same trademark with the Trademark Office, and jointly enjoy and exercise the exclusive right to use the trademark.

Article 6 As for any of such goods, as prescribed by the State, that must bear a registered trademark, a trademark registration must be applied for. Where no trademark registration has been granted, such goods cannot be marketed.

Article 7 Any user of a trademark shall be responsible for the quality of the goods in respect of which the trademark is used. The administrative authorities for industry and commerce at different levels shall, through the administration of trademarks, stop any practice that deceives consumers.

Article 8 In respect of any visual sign capable of distinguishing the goods or service of one natural person, legal entity or any other organization from that of others, including any word, design, letters of an alphabet, numerals, three-dimensional symbol, combinations of

Colours, and their combination, an application may be filed for registration.

Article 9 Any trademark in respect of which an application for registration is filed shall be so distinctive as to be distinguishable, and shall not conflict with any prior right acquired by another person.

A trademark registrant has the right to use the words of "registered trademark" or a symbol to indicate that his trademark is registered.

Article 10< /span> The following signs shall not be used as trademarks:

(1) those identical with or similar to the State name, national flag, national emblem, military flag, or decorations, of the People’s Republic of China, with names of the places where the Central and State organs are located, or with the names and designs of landmark buildings;

(2) those identical with or similar to the State names, national flags, national emblems or military flags of foreign countries, except that the foreign state government agrees otherwise on the use;

(3) those identical with or similar to the names, flags or emblems or names, of international intergovernmentaI organizations, except that the organizations agree otherwise on the use or that it is not easy for the use to mislead the public;

(4) those identical with or similar to official signs and hallmarks, showing official control or warranty by them, except that the use thereof is otherwise authorized;

(5) those identical with or simi1ar to the symbols, or names, of the Red Cross or the Red Crescent;

(6) those having the nature of discrimination against any nationality;

(7) those having the nature of exaggeration and fraud in advertising goods; and

(8) those detrimental to socialist morals or customs, or having other unhealthy influences.

The geographical names as the administrative divisions at or above the county level and the foreign geographical names well known to the public shall not be used as trademarks, but such geographical terms as have otherwise meanings or are a part of collective marks/or a certification marks shall be exclusive. Where a trademark using any of the above-mentioned geographical names has been approved and registered, it shall continue to be valid.

Article 11 The following signs shall not be registered as trademarks:

(1) those only comprising generic names, designs or models of the goods in respect of which the trademarks are used; –

(2) those having direct reference to the quality, main raw materials, function, use, weight, quantity or other features of the goods in respect of which the trademarks are used; and

(3) those lacking distinctive features.

The signs under the preceding paragraphs may be registered as trademarks where they have acquired the distinctive features through use and become readily identifiable.

Article 12 Where an application is filed for registration of a three-dimensional sign as a trademark, any shape derived from the goods itself, required for obtaining the technical effect, or giving the goods substantive value, shall not be registered.

Article 13 Where a trademark in respect of which the application for registration is filed for use for identical or similar goods is a reproduction, imitation or translation of another person’s trademark not registered in China and likely to cause confusion, it shall be rejected for registration and prohibited from use.

Where a trademark in respect of which the application for registration is filed fdr use for non-identical or dissimilar goods is a reproduction, imitation or translation of the well-known mark of another person that has been registered in China, misleads the pub1ic and is likely to create prejudice to the interests of the well-known mark registrant, it shall be rejected for registration and prohibited from use.

Article 14 Account shall be taken of the fol1owing factors in establishment of a well-known mark:

(l) reputation of the mark to the relevant public;

(2) time for continued use of the mark;

(3) consecutive time, extent and geographical area of advertisement of the mark;

(4) records of protection of the mark as a well-known mark; and

(5) any other factors relevant to the reputation of the mark.

Article 15 Where any agent or representative registers, in its or his own name, the trademark of a person for whom it or he acts as the agent or representative without authorization therefrom, and the latter raises opposition, the trademark shall be rejected for registration and prohibited from use.

 

Article 16 Where a trademark contains a geographic indication of the goods in respect of which the trademark is used, the goods is not from the region indicated therein and it misleads the public, it shall be rejected for registration and prohibited from use; however, any trademark that has been registered in good faith shall remain valid.

The geographic indications mentioned in the preceding paragraph refer to the signs that signify the place of origin of the goods in respect of which the signs are used, their specific quality, reputation or other features as mainly decided by the natural or cultural factors of the regions.

Article 17 Any foreign person or foreign enterprise intending to apply for the registration of a trademark in China shall file an application in accordance with any agreement concluded between the People’s Republic of China and the country to which the applicant belongs, or according to the international treaty to which both countries are parties, or on the basis of the principles of reciprocity.

Article 18 Any foreign person or foreign enterprise intending to apply for the registration of a trademark or for any other matters conceming a trademark in China sha1l appoint any of such organizations as designated by the State to act as its or his agent.

Chapter II AppIication for Trademark Registration

Article 19 An applicant for the registration of a trademark shall, in a form, indicate, in accordance with the prescribed classification of goods, the class of the goods and the designation of the goods in respect of which the trademark is to be used.

Article 20 Where any applicant for registration of a trademark intends to use the same trademark for goods in different classes, an application for registration shall be filed in respect of each class of the prescribed classification of goods.

Article 21 Where a registered trademark is to be used in respect of other goods of the same class, a new application for registration shall be filed.

Article 22 Where the sign of a registered trademark is to be altered, a new registration shall be applied for.

Article 23 Where, after the registration of a trademark, the name, address or other registered matters concerning the registrant change, an application regarding the change shall be filed.

Article 24 Any aPp1icant for the registration of a trademark who files an application for registration of the same trademark for identica1 goods in China within six months from the date of filing the first application for the trademark registration overseas may enjoy the right of priority in accordance with any agreement concluded between the People’s Republic of China and the country to which the applicant belongs, or according to the international treaty to which both countries are parties, or on the basis of the principle whereby each acknowledges the right of priority of the other.

Anyone claiming the right of priority according to the preceding paragraph shall make a statement in writing when it or he files the application for the trademark registration, and submit, within three months, a copy of the application documents it or he first filed for the registration of the trademark; where the applicant fails to make the claim in writing or submit the copy of the application documents within the time limit, the claim shall be deemed not to have been made for the right of priority.

Article 25 Where a trademark is first used for goods in an international exhibition on sponsored or recognized by me Chinese Government, the applicant for the registration of the trademark may enjoy the right of priority within six months from the date of exhibition of the goods.

Anyone claiming the right of priority according to the preceding paragraph shall make a claim in writing when it or he files the application for the registration of the trademark, and submit, within three months, documents showing the title of the exhibition in which its or his goods was displayed, proof that the trademark was used for the goods exhibited, and the date of exhibition; where the claim is not made in writing, or the proof documents not submitted within the time limit, the claim shall be deemed not to have been made for the right of priority.

Article 26 The matters reported and materials submitted in the application for trademark registration shall be true, accurate and complete.

Chapter lII Examination for and ApprovaI of Trademark Registration

Article 27 Where a trademark the registration of which has been applied for is in conformity with the relevant provisions of this Law, the Trademark Office shall, after examination, preliminarily approve the trademark and publish it.

Article 28 Where a trademark the registration of which has been applied for is not in conformity with the relevant provisions of this Law, or it is identical with or similar to the trademark of another person that has, in respect of the same or similar goods, been registered or, af
ter examination, preliminarily approved, the Trademark Office shall refuse the application and shall not publish the said trademark.

Article 29 Where two or more applicants apply for the registration of identical or similar trademarks for the same or similar goods, the preliminary aPproval, after examination, and the publication shall be made for the trademark which was first filed. Where applications are filed on the same day, the preliminary approval, after examination, and the publication shall be made for the trademark which was the earliest used, and the applications of the others shall be refused and their trademarks shall not be published.

Article 30 Any person may, within three months from the date of the publication, file an opposition against the trademark that has, after examination, been preliminarily approved. If no opposition has been filed after the expiration of the time limit from the publication, the registration shall be approved, a certificate of trademark registration shall be issued and the trademark shall be published.

 

Article 31 An application for the registration of a trademark shall not create any prejudice to the prior right of another person, nor unfair means be used to pre-emptively register the trademark of some reputation another person has used.

Article 32 Where the application for registration of a trademark is refused and no publication of the trademark is made, the Trademark Office shall notify the applicant of the same in writing. Where the applicant is dissatisfied, he may, within fifteen days from receipt of the notice, file an application with the Trademark Review and Adjudication Board for a review. The Trademark Review and Adjudication Board shall make a decision and notify ‘the applicant in writing.

Any interested party who is not satisfied with the decision made by the Trademark Review and Adjudication Board may, within thirty days from receipt of the notice, institute legal proceedings in the People’s Court.

Article 33 Where an opposition is filed against the trademark that has, after examination, been preliminarily approved and published, the Trademark Office shall hear both the opponent and applicant state facts and grounds, and shall, after investigation and verification, make a decision. Where any party is dissatisfied, it or he may within fifteen days from receipt of the notification, apply for a reexamination, and the Trademark Review and Adjudication Board shall make a decision and notify both the opponent and applicant in writing.

Any interested party who is not satisfied with the decision made by the Trademark Review and Adjudication Board within thirty days from the date of receipt of the notice, may institute legal proceedings in the People’s Court. The People’s Court shall notify the other party to the trademark reexamination proceeding to be a third party to the litigation.

Article 34 Where the interested party does not, within the statutory time limit, apply for the reexamination of the adjudication by the Trademark Office or does not institute legal proceedings in respect of the ad judication by the Trademark Review and Ad judication Board, the adjudication takes effect.

Where the opposition cannot be established upon ad judication, the registration shall be approved, a certificate of trademark registration shall be issued and the trademark shall be published; where the opposition is established upon adjudication, the registration shall not be approved.

Where the opposition cannot be established upon ad judication, but the registration is approved, the time of the exclusive right the trademark registration applicant has obtained to use the trademark is counted from the date on which the three months expires from the publication of the preliminary examination.

Article 35 Any application for trademark registration and trademark reexamination shall be examined in due course.

Article 36 Where any trademark registration applicant or registrant finds any obvious errors in the trademark registration documents or application documents, it or he may apply for correction thereof The Trademark Office shall ex officio make the correction according to law and notify the interested party of the correction.

The error correction mentioned in the preceding paragraph shall not relate to the substance of the trademark registration documents or application documents.

Chapter IV RenewaI, Assignment and Licensing of Registered Trademarks

Article 37 The period of validity of a registered trademark shall be ten years, counted from the date of approval of the registration.

Article 38 Where the registrant intends to continue to use the registered trademark beyond the expiration of the period of validity, an application for renewal of the registration shall be made within six months before the said expiration. Where no application therefore has been filed within the said period, a grace period of six months may be allowed. If no application has been filed at the expiration the grace period, the registered trademark shall be cancelled.

The period of validity of each renewal of registration shaIl be ten years.

Any renewa1 of registration shall be published after it as been approved.

Article 39 Where a registered trademark is assigned, the assignor and assignee shall conclude a contract for the assignment, and jointly file an application with the trademark Office. The assignee shall guarantee the quality of the goods in respect of which the registered trademark is used.

The assignment of a registered trademark shall be published after it has been approved, and the assignee enjoys the exclusive right to use the trademark from the date of publication.

Article 40 Any trademark registrant may, by signing a trademark license contf8ct, authorize other persons to use his registered trademark. The licensor shall supervise the quality of the goods in respect of which the licensee uses his registered trademark, and the licensee shall guarantee the quality of the goods in respect of which the registered Trademark is used.

Where any party is authorized to use a registered trademark of another person, the name of the licensee and the origin of the goods must be indicated on the goods that bear the registered trademark.

The trademark license contract shall be submitted to the Trademark Office for record. Chapter V Adjudication of Disputes Concerning Registered Trademarks

Article 41 Where a registered trademark stands in violation of the provisions of Articles 10, 11 and 12 of this Law, or the registration of a trademark was acquired by fraud or any other unfair means, the Trademark Office shall cancel the registered trademark in question; and any other organization or individual may request the Trademark Review and Ad judication Board to make an adjudication to cancel such a registered trademark.

Where a registered trademark stands in violation of the provisions of Articles l3, l5, l6 and 3l of this Law, any other trademark owner concerned or interested party may, within five years from the date of the registration of the trademark, file a request with the Trademark Review and Adjudication Board for adjudication to cancel the registered trademark. Where a well-known mark is registered in bad faith, the genuine owner thereof shall not be restricted by the five-year limitation.

In addition to those cases as provided for in the preceding two paragraphs, any person disputing a registered trademark may, within five years from the date of approval of the trademark registration, apply to the Trademark Review and Adjudication Board for adjudication.

The Trademark Review and Adjudication Board shall, after receipt of the application for adjudication, notify the interested parties and request them to respond with arguments within a specified period.

Article 42 Where a trademark, before its being approved for registration, has been the object of opposition and decision, no application for adjudication may be filed based on the same facts and grounds.

Article 43 After the Trademark Review and Adjudication Board has made an adjudication either to maintain or to cancel a registered trademark, it shall notify the interested parties of the same in writing.

Any interested party who is dissatisfied with the adjudication made by the Trademark Review and Adjudication Board may, within thirty days from the date of receipt of the notice, institute legal proceedings in the People’s Court. The People’s Court shall notify the other party of the trademark adjudication proceeding to be a third party to the legal proceedings.

Chapter Vl Administration of the Use of Trademarks

Article 44 Where any person who uses a registered trademark has committed any of the following, the Trademark Office shall order him to rectify the situation within a specified period or even cancel the registered trademark:

(1) where a registered trademark is altered unilaterally (that is, without the required registration);

(2) where the name, address or other registered matters concerning the registrant of a registered trademark are changed unilaterally (that is, without the required application ),

(3) where the registered trademark is assigned unilaterally (that is, without the required approval); or

(4) where the use of the registered trademark has ceased for three consecutive years.

Article 45 Where a registered trademark is used in respect of the goods that have been roughly or poorly manufactured, or whose superior quality has been replaced by inferior quality, so that consumers are deceived, the administrative authorities for industry and commerce at different levels shall, according to the circumstances, order rectification of the situation within a specified period, and may, in addition, circulate a notice of criticism or impose a fine, and the Trademark Office may even cancel the registered trademark.

 

Article 46 Where a registered trademark has been cancelled or has not been renewed at the expiration, the Trademark Office shall, during one year from the date of the cancellation or removal thereof, approve no application for the registration of a trademark that is identical with or similar to the said trademark.

Article 47 Where any person violates the provisions of Article 6 of this Law, the local administrative authority for industry and commerce shall order him to file an application for the registration within a specified period, and may, in addition, impose a fine.

Article 48 Where any person who uses an unregistered trademark has committed any of the following, the local administrative authority for industry and commerce shall stop the use of the trademark, order him to rectify the situation within a specified period, and may, in addition, circulate a notice of criticism or impose a fine:

(1) where the trademark is falsely represented as registered;

(2) where any provision of Article 10 of this Law is violated; or

(3) where the manufacture is of rough or poor quality, or where superior quality is replaced by inferior quality, so that ‘consumers are deceived.

Article 49 Any party dissatisfied with the decision of the Trademark Office to cancel a registered trademark may, within fifteen days from receipt of the corresponding notice, apply for a review. The Trademark Review and Adjudication Board shall make a decision and notify the applicant in writing.

Any interested party dissatisfied with the decision by the Trademark Review and Adjudication Board may, within thirty days from the date of receipt of the notice, institute legal proceedings in the People’s Court.

Article 50 Any party dissatisfied with the decision of the administrative authority for industry and commerce to impose a fine under the provisions of Article 45, Article 47 or Article 48 may, within fifteen days from receipt of the corresponding notice, institute legal proceedings with the People’s Court. If there have been instituted no legal proceedings or made no performance of the decision at the expiration of the said period, the administrative authority for industry and commerce may request the People’s Court for compulsory execution thereof.

Chapter VlI Protection of the ExcIusive Rights to Use Registered Trademarks

Article 51 The exclusive right to use a registered trademark is limited to the trademark which has been approved for registration and to the goods in respect of which the use of the trademark has been approved.

Article 52 Any of the following acts shall be an infringement of the exclusive right to use a registered trademark:

(1) to use a trademark that is identical with or similar to a registered trademark in respect of the identical or similar goods without the authorization from the trademark registrant;

(2) to sell goods that he knows bear a counterfeited registered trademark;

(3) to counterfeit, or to make, without authorization, representations of a registered trademark of another person, or to sell such representations of a registered trademark as

were counterfeited, or made without authorization;

(4) to replace, without the consent of the trademark registrant, its or his registered trademark and market again the goods bearing the replaced trademark; or

(5) to cause, in other respects, prejudice to the exclusive right of another person to use a registered trademark.

Article 53 Where any party has committed any of such acts to infringe the exclusive right to use a registered trademark as provided for in Article 52 of this Law and has caused a dispute, the interested parties shall resolve the dispute through consultation; where they are reluctant to resolve the matter through consultation or the consultation fails, the trademark registrant or interested party may institute legal proceedings in the People’s Court or request the administrative authority for industry and commerce for actions. Where it is established that the infringing act is constituted in its handling the matter, the administrative authority for industry and commerce handling the matter shall order the infringer to immediately stop the infringing act, confiscate and destroy the infringing goods and tools specially used for the manufacture of the infringing goods and for counterfeiting the representations of the registered trademark, and impose a fine. Where any interested party is dissatisfied with decision on handling the matter, it or he may, within fifteen days from the date of receipt of the notice, institute legal proceedings in the People’s Court

according to the Administrative Procedure Law of the People’s Republic of China. If there have been instituted no legal proceedings or made on performance of the decision at the expiration of the said period, the administrative authority for industry and commerce shall request the People’s Court for compulsory execution thereof. The administrative authority for industry and commerce handling the matter may, upon the request of
the interested party, medicate on the amount of compensation for the infringement of the exclusive right to use the trademark; where the medication fails, the interested party may institute legal proceedings in the People’s Court according to the Civil Procedure Law of the People’s Republic of China.

Article 54 The administrative authority for industry and commerce has the power to investigate and handle any act of infringement of the exclusive right to use a registered trademark according to law; where the case is so serious as to constitute a crime, it shall be transferred to the judicial authority for handling.

Article 55 When investigating and handling an act suspected of infringement of a registered trademark, the administrative authority for industry and commerce at or above the county level may, according to the obtained evidence of the suspected violation of law or informed offence, exercise the following functions and authorities:

(1 ) to inquire of the interested parties involved, and to investigate the relevant events of the infringement of the exclusive right to use the trademark;

(2) to read and make copy of the contract, receipts, account books and other relevant materials of the interested parties relating to the infringement;

(3) to inspect the site where the interested party committed the alleged infringement of the exclusive right to use the trademark; and

(4) to inspect any articles relevant to the infringement; any articles that prove to have been used for the infringement of another person’s exclusive right to use the trademark may be sealed up or seized.

When the administrative authority for industry and commerce exercises the preceding functions and authorities, the interested party shall cooperate and help, and shall not refuse to do so or stand in the way.

Article 56 The amount of damages shall be the profit that the infringer has earned because of the infringement in the period of the infringement or the injury that the infringee has suffered from the infringement in the period of the infringement, including the appropriate expenses of the infringee for stopping the infringement.

Where it is difficult to determine the profit that the infringer has earned because of the infringement in the period of the infringement or the injury that the infringee has suffered from the infringement in the period of the infringement, the People’s Court shall impose an amount of damages of no more than RMB 500, 000 yuan according to the circumstances of the infringement.

Anyone who sells a goods that it or he does not know has infringed the exclusive right to use a registered trademark, and is able to prove that it or he has obtained the goods legitimately and indicates the supplier thereof shall not bear the liability for damages.

Article 57 Where a trademark registrant or interested party who has evidence to show that another person is committing or will commit an infringement of the right to use its or his registered trademark, and that failure to promptly stop the infringement will cause irreparable damages to its or his legitimate rights and interests, it or he may file an application with the People’s Court to order cessation of the relevant act and to take measures for property preservation before instituting legal proceedings in the People’s Court.

The People’s Court handling the application under the preceding paragraph shall apply the provisions of Articles 93 to 96 and 99 of the Civil Procedure Law of the People’s Republic of China.

Article 58 In order to stop an infringing act, any trademark registrant or interested party may file an application with the People’s Court for preservation of the evidence before instituting legal proceedings in the People’s Court where the evidence will possibly be destroyed or lost or difficult to be obtained again in the future. The People’s Court must make adjudication within forty-eight hours after receipt of the application; where it is decided to take the preservative measures, the measures shall be executed immediately. The People’s Court may order the applicant to place guaranty; where the applicant fails to place the guaranty, the application shall be rejected.

Where the applicant institutes no legal proceedings within fifteen days after the People’s Court takes the preservative measures, the People’s Court shall release the measures taken for the preservation.

Article 59 Where any party uses, without the authorization from the trademark registrant, a trademark identical with a registered trademark, and the case is so serious as to constitute a crime, he shall be prosecuted, according to law, for his criminal liabilities in addition to his compensation for the damages suffered by the infringee.

Where any party counterfeits, or makes, without authorization, representations of a registered trademark of another person, or sells such representations of a registered trademark as were counterfeited, or made without authorization, and the case is so serious as to constitute a crime, he shall be prosecuted, according to law, for his criminal liabilities in addition to his compensation for the damages suffered by the infringee.

Where any party sells goods that he knows bear a counterfeited registered trademark, and the case is so serious as to constitute a crime, he shall be prosecuted, according to law, for his criminal liabilities in addition to his compensation for the damages suffered by the infringee.

Article 60 The State functionaries for the registration, administration and reexamination of trademarks must handle cases according to law, be incorruptible and disciplined, devoted to their duties and courteous and honest in their provision of service.

The State functionaries of the Trademark Office and the Trademark Review and Adjudication Board and those working for the registration, administration and reexamination of trademarks shall not practice as trademark agent and engage in any activity to manufacture and market goods.

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互联网著作权行政保护办法中英文版

Administrative Protection of Copyright on the Internet

互联网著作权行政保护办法

Promulgated by the National Copyright Administration and the Ministry of Information Industry on 29 April 2005 and effective as of 30 May 2005 (Order No. 5, 2005).

国家版权局、信息产业部2005年4月29日颁布,5月30日生效(国家版权局、国信息产业部令2005年第5号)

Article 1 These Procedures have been formulated in accordance with the PRC, Copyright Law and the relevant laws and administrative regulations in order to strengthen the administrative protection of the right of transmission on information networks in internet information services and to standardize administrative enforcement acts.

第一条  为了加强互联网信息服务活动中信息网络传播权的行政保护,规范行政执法行为,根据《中华人民共和国著作权法》及有关法律、行政法规,制定本办法。

Article 2 These Procedures shall apply to functions such as uploading, storing, linking or searching of the contents of works or audio and video products that are provided automatically on the internet in internet information services according to the commands of an internet content provider, without any editing, revision or selection of the stored or transmitted contents.

Where internet contents are directly provided in internet information services, the Copyright Law shall apply.

For the purposes of these Procedures, an “internet content provider” is an online user that publishes the relevant contents on the internet.

第二条  本办法适用于互联网信息服务活动中根据互联网内容提供者的指令,通过互联网自动提供作品、录音录像制品等内容的上载、存储、链接或搜索等功能,且对存储或传输的内容不进行任何编辑、修改或选择的行为。

    互联网信息服务活动中直接提供互联网内容的行为,适用著作权法。

    本办法所称“互联网内容提供者”是指在互联网上发布相关内容的上网用户。

Article 3 Copyright administrative departments at all levels shall carry out administrative protection of the right of transmission on information networks in internet information services in accordance with laws, administrative regulations and these Procedures. The State Council department in charge of information industry and the telecommunications administrative authorities of each province, autonomous region and municipality directly under the central government shall cooperate with such work in accordance with the law.

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德国著作权法修改资料 German Copyright Law Materials

Changes in the German copyright law
EDRI-gram – Number 6.8, 23 April 2008
http://www.edri.org/edrigram/number6.8/german-copyright-change

The Göttingen Declaration on Copyright for Education and Research
of 5 July 2004
http://urheberrechtsbuendnis.de/index.html.en

Copyright law reform in Germany
http://open-acess.net/de_en/general_information/legal_issues/german_copyright_reform/

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中国1990著作权法中英文版

NOTE: Please DO NOT quote this text for current legal cases because it has been amended tremendously twice by the 2001 Amendment of Copyright Law and the 2010 Amendment of  Copyright Law. I republish it hereby merely for the purpose of historical ressearch.

注意:本法已在2001年 和2010年被两次修订,许多条文已经改变,不能再适用。我贴在这里只是为了方便历史研究的回顾。

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日本著作权法[2006]及英文翻译

此为日本《著作权法》(2006年修订)及官方英文译本。此外,日本国会于2009年6月12日通过著作权法修正案,点此看修订的内容。

文本来源:http://www.japaneselawtranslation.go.jp/

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著作権法     
      法令番号:昭和四十五年法律第四十八号     改正: 平成十八年法律第百二十一号     辞書バージョン:2.0     翻訳日:平成21年4月1日

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The Statute of Anne 1710

The Statute of Anne; April 10, 1710

 

8 Anne, c. 19 (1710)

An act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies, during the times therein mentioned.

I. Whereas printers, booksellers, and other persons have of late frequently taken the liberty of printing, reprinting, and publishing, or causing to be printed, reprinted, and published, books and other writings, without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families: for preventing therefore such practices for the future, and for the encouragement of learned men to compose and write useful books; may it please your Majesty, that it may be enacted, and be it enacted by the Queen’s most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same;

II. That from and after the tenth day of April, one thousand seven hundred and ten, the author of any book or books already printed, who hath not transferred to any other the copy or copies of such book or books, share or shares thereof, or the bookseller or booksellers, printer or printers, or other person or persons, who hath or have purchased or acquired the copy or copies of any book or books, in order to print or reprint the same, shall have the sole right and liberty of printing such book and books for the term of one and twenty years, to commence from the said tenth day of April, and no longer; and That the author of any book or books already composed, and not printed and published, or that shall hereafter be composed, and his assignee or assigns, shall have the sole liberty of printing and reprinting such book and books for the term of fourteen years, to commence from the day of the first publishing the same, and no longer; and That if any other bookseller, printer or other person whatsoever, from and after the tenth day of April, one thousand seven hundred and ten, within the times granted and limited by this act, as aforesaid, shall print, reprint, or import, or cause to be printed, reprinted, or imported, any such book or books, without the consent of the proprietor or proprietors thereof first had and obtained in writing, signed in the presence of two or more credible witnesses; or knowing the same to be so printed or reprinted, without the consent of the proprietors, shall sell, publish, or expose to sale, or cause to be sold, published, or exposed to sale, any such book or books, without such consent first had and obtained, as aforesaid: then such offender or offenders shall forfeit such book or books, and all and every sheet or sheets, being part of such book or books, to the proprietor or proprietors of the copy thereof, who shall forthwith damask, and make waste paper of them; and further, That every such offender or offenders shall forfeit one penny for every sheet which shall be found in his, her, or their custody, either printed or printing, published, or exposed to sale, contrary to the true intent and meaning of this act; the one moiety thereof to the Queen’s most excellent majesty, her heirs and successors, and the other moiety thereof to any person or persons that shall sue for the same, to be recovered in any of her Majesty’s courts of record at Westminister, by action of debt, bill, plaint, or information, in which no wager of law, essoin, privilege, or protection, or more than one imparlance shall be allowed. II. And whereas many persons may through ignorance offend against this act, unless some provision be made, whereby the property in every such book, as is intended by this act to be secured to the proprietor or proprietors thereof, may be ascertained, as likewise the consent of such proprietor or proprietors for the printing or reprinting of such book or books may from time to time be known; be it therefore further enacted by the authority aforesaid,

That nothing in this act contained shall be construed to extend to subject any bookseller, printer, or other person whatsoever, to the forfeitures or penalties therein mentioned, for or by reason of the printing or reprinting of any book or books without such consent, as aforesaid, unless the title to the copy of such book or books hereafter published shall, before such publication, be entered in the register book of the company of stationers, in such manner as hath been usual, which register book shall at all times be kept at the hall of the said company, and unless such consent of the proprietor or proprietors be in like manner entered as aforesaid, for every of which several entries, six pence shall be paid, and no more; which said register book may, at all seasonable and convenient time, be resorted to, and inspected by any bookseller, printer, or other person, for the purposes before-mentioned, without any fee or reward; and the clerk of the said company of stationers shall, when and as often as thereunto required, give a certificate under his hand of such entry or entries, and for every such certificate may take a fee not exceeding six pence.

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United States Copyright Act of 1909

 From: http://law.copyrightdata.com/, this text was valid from July 1, 1909 to August 23, 1912.

March 4,1909.

AN ACT TO AMEND AND CONSOLIDATE THE ACTS RESPECTING COPYRIGHT.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any person entitled thereto, upon complying with the provisions of this Act, shall have the exclusive right:

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