To implement the spirit of the Report to the 20th National Congress of the Communist Party of China on strengthening the rule-of-law guarantee for intellectual property rights, standardize trademark agency practices, improve the quality of trademark agency services, maintain the normal order of the trademark agency market, and promote the sound development of the industry, these Provisions on the Supervision and Administration of Trademark Agency (hereinafter referred to as the Provisions) are formulated 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 Implementing Regulations of the Trademark Law), and other relevant laws and administrative regulations. Relevant explanations are set forth as follows:

Since the promulgation and implementation of the Trademark Law and the Implementing Regulations of the Trademark Law, remarkable social effects have been achieved in regulating trademark agency conduct, guiding standardized operation of trademark agencies, improving service quality and boosting industrial development. Nevertheless, with the rapid economic and social development of China, new situations and problems have emerged in the field of trademark agency.

First, the legal provisions concerning trademark agency need to be improved. It is necessary to refine and implement relevant provisions of the Trademark Law and its Implementing Regulations through departmental rules, especially the newly revised contents of the Trademark Law in 2019 on regulating malicious trademark registration applications. This will address complex problems arising amid rapid industrial development and provide clear legal basis for the supervision and administration of trademark agency.

Second, non-standard trademark agency practices have aroused public concern. In recent years, with lowered market access thresholds for the trademark agency industry, the number of trademark agencies has surged from over 100 in 2003 to nearly 70,000. Despite the sharp growth in quantity, only a small number of agencies maintain substantial business volume. Some agencies suffer from irregular internal management and uneven service quality. Worse still, certain agencies engage in or assist clients in malicious squatting on trademarks, hoarding and trading trademarks, improper rights protection and other illegal acts. Such practices impair the legitimate rights and interests of parties, disrupt market order, exert negative impacts on industrial development, and pose great challenges to industrial supervision and governance. Therefore, it is urgent to further effectively regulate trademark agency conduct.

Third, the legal authorization for trademark agency supervision is insufficient with no clear law enforcement basis. Supervision means are limited, regulatory forces are inadequate, and credit-based supervision remains imperfect. It is imperative to further standardize working procedures and strictly administer affairs in accordance with the law.

Therefore, to enhance the enforceability of laws and regulations, meet the practical needs of the development of the trademark agency industry, solve prominent problems in practice, and advance the high-quality development of the trademark agency industry, it is necessary to formulate these Provisions.

In March 2018, the Trademark Office of the former State Administration for Industry and Commerce initiated the drafting of the Provisions on the Supervision and Administration of Trademark Agency. Following institutional reform, the China National Intellectual Property Administration (CNIPA) continued the drafting work. Drawing fully on the regulatory experience of the patent agency, legal service and other industries, and combining the practical needs and work experience of trademark agency supervision, a draft for solicitation of comments was formed based on extensive consultation with local intellectual property authorities, industry organizations, trademark agencies and market entities.

From September 24 to October 24, 2020, the draft was released for public comments via the China Government Legal Information Network. Meanwhile, opinions and suggestions were widely solicited from relevant central ministries, local intellectual property authorities, industry organizations, agencies, enterprises, experts and scholars. After studying, absorbing and adopting opinions from all parties, the draft was further revised into a submission version and submitted to the State Administration for Market Regulation (SAMR) for legal review in December 2020.

With active coordination by CNIPA and full consideration and adoption of opinions from all sides, the draft Provisions was finalized, reviewed and approved at the executive meeting of SAMR. It was promulgated by Order No. 63 of the State Administration for Market Regulation on October 27, 2022, and shall come into force on December 1, 2022.

The drafting of the Provisions follows three main principles:

The Provisions consist of 5 Chapters and 43 Articles, with key contents as follows:

This part stipulates the purpose of formulating the rules, definitions of trademark agency matters, trademark agencies and trademark agency practitioners, as well as the functions of industry organizations. (Articles 1 to 4)

To better protect clients’ legitimate rights and interests, improve the filing system for trademark agencies, urge timely and lawful filing, and give play to the role of public information disclosure via filing, the Provisions specify requirements for trademark agencies to complete initial filing, renewal filing, alteration filing and cancellation filing, providing clear guidelines for agencies.

A three-year validity period is set for filing to realize dynamic screening and management of agencies. Administrative penalties are imposed on trademark agencies that fail to complete filing, alteration filing, renewal filing or cancellation filing in accordance with the law, fail to properly handle pending trademark agency business, harm clients’ interests or disrupt the trademark agency market order. Meanwhile, CNIPA shall publicize filing information to facilitate public supervision. (Articles 5 to 9 and Article 36)

First, the basic principles for trademark agency business are clarified. Trademark agencies shall not engage in agency business by fraud, deception or other improper means, nor harm national interests, public interests or the legitimate rights and interests of others. No trademark agency shall apply for registration or accept assignment of trademarks beyond its agency service scope in the name of its legal representative, shareholders, partners, actual controllers or senior management personnel; nor shall it indirectly conduct such acts by establishing new market entities or through affiliated market entities.

Second, trademark agencies are required to establish and improve internal systems covering quality management, conflict of interest review, malicious application screening, file management and other operational and business rules.

Third, the obligations of trademark agencies and their practitioners are reaffirmed, including notification obligation, confidentiality obligation, liability by signature and seal. Trademark agencies shall deliver relevant documents and materials to clients in a timely manner, and practitioners are prohibited from concurrently working for two or more trademark agencies.

Fourth, targeting prevalent irregularities such as cut-throat price competition and false publicity in the industry, trademark agencies shall strengthen education on professional ethics and discipline, organize professional training, and charge fees in compliance with the principles of voluntariness, fairness and good faith.

Fifth, provisions are made on the public disclosure of basic information and business file management of trademark agencies. (Articles 10 to 19)

The Provisions refine the credit file system for trademark agencies and carry out hierarchical and classified evaluation of the intellectual property service industry. It standardizes the submission of annual reports by trademark agencies and the inclusion of agencies in the serious illegal and dishonest list in accordance with relevant state provisions, strengthens information publicity, and improves the coordination mechanism between market regulation authorities and intellectual property administrative departments in terms of information sharing, notification of investigation results and professional guidance.

In daily supervision of trademark agency activities, the obligation of relevant parties to cooperate is clarified, and regulatory tools such as administrative interviews and regulatory opinions are fully utilized to enhance regulatory efficiency. (Articles 20 to 26)

The Provisions refine the types of illegal trademark agency acts enumerated in Article 68 of the Trademark Law and Article 88 of the Implementing Regulations of the Trademark Law. It brings under regulatory scope such acts as assisting malicious trademark registration in connection with emergencies, public figures and public opinion hot topics; offering bribes or interest benefits to staff engaged in trademark registration and administration; employing former trademark registration and administration staff in violation of post-employment restrictions; misleading the public through false publicity; assisting clients in assigning maliciously registered trademarks with full knowledge; accepting entrustment or instigating clients to abuse trademark rights with full knowledge.

Intensified supervision is imposed on online trademark agency services, with typical illegal acts enumerated and corresponding penalties stipulated to curb vicious competition. Rules are formulated on decisions to suspend or resume acceptance of trademark agency business applications by competent authorities.

Restrictive employment requirements are improved: where a trademark agency is suspended from undertaking trademark agency business or fails to properly dispose of pending business, its person-in-charge, persons directly liable, and shareholders/partners with management responsibilities shall not serve as the new person-in-charge, shareholder or partner of any trademark agency. The dual regulation of agencies and practitioners prevents evasion of punishment by establishing new agencies.

Meanwhile, the Provisions specify the supervision duties of intellectual property administrative departments, disciplinary requirements and accountability for staff engaged in trademark registration and administration, and require strict examination, supervision and timely handling of trademarks involved in illegal and disciplinary acts in accordance with the Trademark Law and relevant regulations. (Articles 37 to 39)

In addition, the Provisions stipulate that where laws and regulations contain separate provisions on the punishment of illegal business activities of trademark agencies, such provisions shall prevail; law firms and lawyers engaging in trademark agency business shall abide by other relevant state provisions in addition to laws, regulations and these Provisions; other institutions or individuals engaging in trademark agency business or related activities in violation of these Provisions shall be handled with reference thereto. (Articles 40 to 42)

Covering filing access, practice norms, supervision measures and punishment for violations, the Provisions put forward targeted governance measures. Upon implementation, they will fundamentally rectify the disorderly development and weak supervision of the trademark agency industry, and better meet the needs of high-quality development of trademark undertakings.