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In general, the modifications of trademark law concerned the following issues:
（1）The trademark registration of three-dimensional symbols, combinations of colors, alphabets and figures were included. In accordance with Article 15.1 of TRIPS, signs, in particular words including personal names, letters, numerals, figurative elements and combinations of colors as well as any combination of such signs, shall be eligible for registration as trademarks. The scope in the former laws was narrower than that in TRIPS; thus the new law adds three-dimensional symbols, combinations of colors, alphabets and figures into registration in Article 8.
(2) New rules on the protection of geographical indications (including appellations of origin), collective trademarks and certification trademarks were added, so that the range of subjects protected by Trademark Law was extended. Especially, regarding to provisions on geographical indications (including appellations of origin), they were in full conformity with China’s commitments . At the same time, Article 3 elaborates the definitions of terms, such as collective trademarks and certification trademarks.
(3) Provisions about the protection of well-known trademarks were included. In order to meet requirements of Article 16 of TRIPS and the commitment in negotiation , Article 13 of Trademark Law stipulates the special protection to well-known trademarks and Article 14 states the general criteria for determining whether a mark was well-known. In the past, China had a protection system of well-known trademarks, but it was mainly for home trademarks. Under the new regime, all well-known trademarks are protected equally, whether home or overseas, registered or unregistered in China.
(4) The former trademark right confirmation system was modified and the opportunity for judicial review concerning the confirmation of trademarks was offered in the new law. In accordance with Article 62 of TRIPS, any final administrative decisions concerning the acquisition or maintenance of IPRs, administrative revocation and inter partes procedures such as opposition, revocation and cancellation shall be subject to review by a judicial or quasi-judicial authority. The former law took the administrative decisions of the confirmation of trademarks as final and no judicial remedy was offered, while other decisions were actionable in courts. After the inclusion of new provisions, all administrative decisions in Trademark Law are subject to judicial review. This was an important legal improvement for WTO compliance.
(5) The punishment measures against trademark infringements were strengthened. From Article 53 to Article 59, the Trademark Law elaborates on civil judicial procedures and remedies, provisional measures, administrative procedures and remedies and criminal punishment against trademark infringements. These articles reveal the determination of the government to crack down on all serious infringements and to improve the system of trademark protection.
On August 3, 2002, the State Council published Regulations on the Implementation of Trademark Law, which came into effect as of September 15, 2002. The regulations detailed some provisions of Trademark Law and further secured the compliance of trademark system with TRIPS Agreement and other international rules.
3.Amentments of Patent Law
Compared with the amendments of Copyright Law and Trademark Law, the amendment of Patent Law was earlier more than one year. On 25 August 2000, the Standing Committee of NPC approved the amendment act to Patent Law, which was also the second amendment to it.
The revised Patent Law took effect on July1, 2001 and mainly included the following amendments: (a) Patent owners have the right to prevent other persons from offering for sale the patented product without their prior consent in accordance with Article 11 of the law. (2) More opportunities for judicial review. For utility model and design application or patents, the final decision on re-examination and invalidation would be made by the people’s courts other than for inventions that were patented prior to the amendment. In Article 41 and 46, procedures and time limits are stipulated in detail. As important as the judicial review articles in Trademark law and Copyright Law, such provisions made patent law meet requirements of TRIPs Agreement and other WTO Members generally accepted this . (3) Provisional measures, such as order of the suspension of infringing acts and property preservation, are available before lawsuit in accordance with Article 61 of Patent Law.
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