CHINA Law and Practice Contributed by: Chuanhong Long, Bin Zhang, Cuicui Liang and Lei Fu, CCPIT Patent and Trademark Law Office
• the actual and continuous use of the mark in terms of time, territory, scope, sales scale and other busi - ness conditions; and • the degree of knowledge of the mark among the relevant public. 2.3 Trade Mark Rights Trade mark owners have the right to renew, transfer, license or pledge a trade mark. These rights are out - lined respectively in Articles 40, 42 and 43 of the Chi - nese Trademark Law and Article 70 of its Implemen - tation Regulations. All rights granted to trade mark owners persist throughout the term of a mark. These rights are outlined in the Chinese Trademark Law and its implementing regulations. 2.4 Use in Commerce If trade mark registration is obtained for more than three years, anyone can file a non-use cancellation. The registrant then needs to file evidence of use, which forms a chain to prove the effective, commercial and true use in the past three years. It is necessary to establish that the defendant has used the sign as a trade mark, in contrast to using it for purely descrip - tive purposes. 2.5 Notices and Symbols According to Article 63 of the Implementation Regula - tions of the Chinese Trademark Law, a registered trade mark can be used on goods, packaging of goods, illustrative books or other attachments. It can be denoted as a “registered trade mark” or as “R” with a circle around it. The “TM” sign can be used to indicate that the sign is used as a trade mark, but this does not indicate registration. It is not compulsory to use such symbols, however, and there is no statutory consequence for not provid - ing notice of trade mark ownership. 2.6 Related Rights Whether the trade mark can be protected by copyright or related rights depends on whether it conforms with those laws. There is no specific regulation regarding surname. If it meets the requirements of the Chinese Trademark Law, it can be registered as a trade mark.
There is no limitation on the scope of trade mark laws based on copyright or related rights in China.
3. Copyright Ownership, Protection and Rights 3.1 Types of Copyrightable Works According to Chinese Copyright Law, the following categories may be protected by copyright: • written works; • oral works; • musical, dramatic, folk arts, choreographic and acrobatic art works; • works of fine art and architecture; • photographic works; • audiovisual works; • drawings of engineering designs and product designs, maps, sketches and other graphic works, as well as models; • computer software; and • expressions of folklore, etc. Normally, industrial designs are protected by patent. 3.2 Essential Elements of Copyright Protection Ingenious intellectual achievements in the fields of literature, art and science that can be presented in a certain form qualify for copyright protection. 3.3 Copyright Authorship The copyright in a work belongs to its author. The author of a work is the natural person who has created the work. Where a work is created according to the intention and under the supervision and responsibility of a legal entity or another unincorporated organisa - tion, such legal entity or unincorporated organisation is the author of the work. A work created by a natural person when fulfilling the tasks assigned to them by a legal entity or another unincorporated organisation is deemed to be a service work. The copyright of such work is enjoyed by the author, but the legal entity or unincorporated organi - sation has a priority right to exploit the work within the scope of its professional activities. During the two
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