Industry News | Reply on the use of the logo of the State Intellectual Property Office

2023-06-13

Reply of the State Intellectual Property Office on the use of the logo of the State Intellectual Property Office

Guozhifa Letter of Guarantee [2023] No. 95

Guangxi Zhuang Autonomous Region Intellectual Property Office and Hainan Provincial Intellectual Property Office: "Guangxi Zhuang Autonomous Region Intellectual Property Office's Instructions on the Use of the State Intellectual Property Office's Logo" (Gui Zhibao [2022] No. 8) and "Hainan Provincial Intellectual Property Office's Instructions on Handling Illegal Use of the State Intellectual Property Office's Logo and Other Behaviors" (Qiong Zhi [2023] No. 18) were received. After research, the relevant issues concerning the use of the logo of the State Intellectual Property Office are hereby approved as follows:

1. Whether the relevant provisions of the Trademark Law of the People's Republic of China apply

The use of the relevant names and logos of the State Intellectual Property Office by the products and display boards involved in the above-mentioned materials will not mislead consumers about the source of the goods, and does not belong to the use of trademarks used to identify the source of goods as described in Article 48 of the Trademark Law of the People's Republic of China, and the relevant provisions of the Trademark Law of the People's Republic of China do not apply.

2. On whether to apply the relevant provisions of the Measures for the Marking of Patent Marks

Paragraph 2 of Article 16 of the Patent Law of the People's Republic of China stipulates that: "The patentee has the right to mark the patent mark on its patented product or the packaging of the product. "Article 83 of the Detailed Rules for the Implementation of the Patent Law of the People's Republic of China stipulates that if a patentee indicates the patent mark on its patented product or the packaging of the product in accordance with the provisions of the Patent Law of the People's Republic of China, it shall do so in the manner prescribed by the patent administration department of the State Council. Where the patent mark does not comply with the provisions of the preceding paragraph, the department in charge of patent work shall order it to make corrections. Article 5 of the Measures for the Marking of Patent Marks stipulates that "where a patent mark is marked, the following contents shall be indicated: (1) the category of the patent right shall be indicated in Chinese, such as Chinese invention patent, Chinese utility model patent, and Chinese design patent; (2) The patent number of the patent right granted by the State Intellectual Property Office. In addition to the above, other text and graphic marks may be attached, but the additional text and graphic marks and the manner in which they are marked shall not mislead the public". According to the above provisions, the patentee has the right to mark the patent number, invention name and other information on the product packaging bag. However, the products and display boards involved in the case are marked with the logo of the State Intellectual Property Office (put into use on July 1, 1999), representing the departmental image of the State Intellectual Property Office, and are the Chinese and English names used by the State Intellectual Property Office before the institutional reform in 2018. In accordance with Article 8 of the Measures for the Marking of Patent Marks, the department in charge of patent work shall order corrections.

3. On whether the relevant provisions of the "Advertising Law of the People's Republic of China" are applicable

The first paragraph of Article 2 of the Advertising Law of the People's Republic of China stipulates: "This Law shall apply to commercial advertising activities within the territory of the People's Republic of China in which commodity operators or service providers directly or indirectly introduce the goods or services they promote through certain media and forms. Article 9 of the "Advertising Law of the People's Republic of China" stipulates: "Advertisements must not have the following circumstances: (1) using or covertly using the national flag, national anthem, national emblem, military flag, military anthem, or military emblem of the People's Republic of China; (2) Using or covertly using the name or image of a state organ or its staff; (3) Use terms such as 'national level', 'superlative', 'best', etc.".

The above-mentioned labeling of the products and display boards involved in the case is suspected of using the name or image of a state organ to carry out publicity, violating the above provisions of the "Advertising Law of the People's Republic of China", and should be handled in accordance with law in accordance with the "Advertising Law of the People's Republic of China", the "Administrative Punishment Law of the People's Republic of China" and other relevant provisions in consideration of factors such as the specific circumstances of the conduct involved in the case, the subjective fault of the parties, and the harmful consequences of the conduct.

It is hereby approved.

State Intellectual Property Office

June 5, 2023

Source: State Intellectual Property Office