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Rules for Trademark Review and Adjudication
Chapter I General Provisions
Article 1. These Rules are hereby formulated in
accordance with the Trademark Law of the People's Republic of China
(hereinafter referred to as the Trademark Law) and the Regulations for the Implementation
of the Trademark Law of the People's Republic of China (hereinafter referred
to as the Implementing Regulations).
Article 2. Under the Trademark Law and the
Implementing Regulations thereof, the Trademark Review and Adjudication Board
of the State Administration for Industry and Commerce (hereinafter referred
to as the Trademark Review and Adjudication Board) shall be responsible for
handling the following cases of trademark dispute:
(1) Cases of application for reexamination filed according to the provision
of Article 32 of the Trademark Law out of dissatisfaction with decisions made
by the Trademark Office of the State Administration for Industry and Commerce
(hereinafter referred to as the Trademark Office) on rejection of
applications for trademark registration;
(2) Cases of application for reexamination filed according to the provision
of Article 33 of the Trademark Law out of dissatisfaction with opposition
adjudication made by the Trademark Office;
(3) Cases of request for adjudication on cancellation of registered
trademarks filed according to the provision of Article 41 of the Trademark
Law; and
(4) Cases of application for reexamination filed according to the provision
of Article 49 of the Trademark Law out of dissatisfaction with cancellation
decisions made by the Trademark Office according to the provisions of
Articles 41, paragraph one, 44 and 45 of the Trademark Law.
Article 3. The review and adjudication activities in
which an interested party participates in cases of trademark dispute shall
proceed in writing.
Article 4. The Trademark Review and Adjudication Board
shall hear cases of trademark dispute on the basis of facts and in accordance
with law.
Article 5. The Trademark Review and Adjudication Board
shall hear cases of trademark dispute in such a way that all interested
parties are equal in application of law.
Article 6. The Trademark Review and Adjudication Board
shall hear cases of trademark dispute in writing, except the circumstances
where it decides to publicly review and adjudicate a case according to the
provision of Article 33 of Implementing Regulations.
Article 7. The Trademark Review and Adjudication Board
shall notify, in writing, the interested parties of, and explain the reason
for, the decisions and adjudication made according to the Trademark Law, the
Implementing Regulations and these Rules.
Article 8. Unless otherwise provided for in these
Rules, the collegial system shall be adopted for the Trademark Review and
Adjudication Board to hear cases of trademark dispute, and the staff members
for the trademark review and adjudication shall make a collegial panel to
conduct the hearing of a case.
When the collegial panel hears a case, the principle is adopted that the
minority are subordinate to the majority.
Article 9. In any one of the following circumstances,
any staff member of the Trademark Review and Adjudication Board shall
withdraw, or an interested party may request him to withdraw:
(1)he is a party or a close relative to a party or agent of the case;
(2) he is related in such ways a party or agent insofar as the relation would
affect impartiality; or
(3) he has his interests in the handling of the matter of trademark review
and adjudication.
An interested party shall apply for the withdrawal of a staff member for
trademark review and adjudication in writing and explain the reason therefor.
Article 10. During the review and adjudication, an
interested party shall have the right to dispose of, according to law, his
trademark right and the right relating to trademark review and adjudication.
Article 11. Where interested parties who are co-owners
of a trademark participate in the review and adjudication, they shall
designate a representative; where no representative is designated, the first
person indicated in the trademark registration application or in the
Trademark Register shall be the representative. The action of the
representative to participate in the review and adjudication shall have
effect on the interested parties he represents, but change of the
representative, waiver of the review and adjudication request or
acknowledgement of the other party's review and adjudication request must be
authorized in writing by the interested parties represented.
Article 12. Where a foreign person or enterprise attending to
matters of review and adjudication who has his or its habitual residence or
place of business in China may entrust a trademark agency authorized by the
State and having the qualifications with, or directly attend to, the matter.
Where a foreign person or enterprise attending to the matter of review and
adjudication who does not have his or its habitual residence or place of
business in China shall entrust a trademark agency authorized by the State
and having the qualifications.
Article 13. An interested party entrusting a trademark
agency with the participation in the trademark review and adjudication shall
submit a Power of Attorney. The Power of Attorney shall indicate such content
and competence as authorized; the Power of Attorney from a foreign person or
foreign enterprise shall, in addition, indicate the nationality of the
entruster.
Notarization and legalization of the Power of Attorney and other relevant
certificates from a foreign person or foreign enterprise shall be done based
on the principle of reciprocity.
The foreign person or foreign enterprise that applies for or participates in
trademark review and adjudication shall use the Chinese language, and
documents in a foreign language shall be attached with a Chinese translation
thereof.
Article 14. Where there is a change in the competence
as authorized or the agent relation dissolved, the interested party shall
inform the Trademark Review and Adjudication Board in writing in a timely
manner.
Article 15. Interested parties and agents may consult
documents relating to a case, and apply for making copies of the documents
and legal instruments relating to the case. The scope and way of the
consulting and copying of the documents relating to the case shall be provided
for by the Trademark Review and Adjudication Board.
Chapter II Application and Acceptance
Article 16. Applications for trademark review and
adjudication shall conform to the requirements as follows:
(1) The applicants must be lawfully qualified subjects;
(2) The applications are filed within the statutory time limit;
(3) The applications fall within the scope of review and adjudication by the
Trademark Review and Adjudication Board;
(4) Applications and the relevant proofs that conform to the requirement are
submitted according to law;
(5) There are specific requests, factual bases and grounds for the review and
adjudication; and
(6) The review and adjudication fees are paid according to law.
Article 17. To apply for trademark review and adjudication,
one shall file an Application with the Trademark Review and Adjudication
Board. If there is (are) a respondent/respondents, the applicant shall file
as many copies of the Application as there are respondents. To apply for
reexamination in respect of a decision or adjudication made by the Trademark
Office, one shall also submit the Decision or Adjudication made by the
Trademark Office along with the Application.
Article 18. Following information shall be indicated in
the Application:
(1) The name, address and postal code of the applicant; if the applicant is a
legal entity or other organisation, the name and position of its legal
representative or leading person;
(2) The title, application number or preliminary examination number,
registration number of the trademark at issue and the issue number of the
Trademark Gazette publishing the trademark;
(3) Specific request for the review and adjudication, and the facts, grounds
and legal bases for the request; and (5) The name and telephone number of the
person to be contacted.
Where the respondent(s) is (are) indicated in the review and adjudication
application, the name and address thereof shall be indicated. Where a
trademark agency is appointed to attend to the matter of the trademark review
and adjudication, the name, address, postal code and telephone number thereof
shall also be indicated.
Article 19. The Trademark Review and Adjudication Board
shall not accept trademark review and adjudication applications that do not
conform to any one of the requirements of Rule 16 (1), (2) and (3) of these
Rules, notify the applicants in writing and explain the reason.
Article 20. Where a trademark review and adjudication
application that does not conform to any one of the requirements of Rule 16
(4), (5) and (6) of these Rules or where the relevant certificates or proofs
are not submitted according to the Implementing Regulations and these Rules,
the Trademark Review and Adjudication Board shall notify the applicant to
make rectification and require him to comply within 30 days from the date of
receipt of the notification on rectification. The Trademark Review and
Adjudication Board shall not accept any application that remain contrary to
the requirements upon rectification, notify the applicant in writing and
explain the reason. Where the rectification is not made at the expiration of
the time limit, the review and adjudication application shall be deemed to
have been withdrawn by the applicant according to the provision of Article 30
of the Implementing Regulations, and the Trademark Review and Adjudication
Board shall notify the applicant in writing.
Article 21. Where a trademark review and adjudication
application conforms to the requirement of acceptance, the Trademark Review
and Adjudication Board shall issue to the applicant the Acceptance
Notification within thirty days.
Article 22. In any one of the following circumstances,
trademark review and adjudication applications accepted by the Trademark
Review and Adjudication Board are ones that fail to conform to the
requirements of acceptance, and shall be rejected according to Article 30 of
the Implementing Regulations:
(1) they are contrary to the provision of Article 42 of the Trademark Law in
that applications for adjudication are filed on the basis of the same facts
and grounds in respect of the trademarks to which opposition was raised and
on which adjudication was made before they were approved for registration;
(2) they are contrary to the provision of Article 35 of the Implementing Regulations
in that applications for review and adjudication are filed on the basis of
the same facts and grounds in respect of trademarks to which opposition was
raised and on which adjudication was made after the applicant withdrew the
trademark review and adjudication applications;
(3) they are contrary to the provision of Article 35 of the Implementing
Regulations in that applications for review and adjudication are filed on the
basis of the same facts and grounds in respect to the adjudication or decision
made by the Trademark Review and Adjudication Board; or
(4) any other circumstances under which the applications shall not be
accepted.
The Trademark Review and Adjudication Board, when rejecting a trademark
review and adjudication application, shall notify the applicant in writing,
and explain the reason.
Article 23. The applicant who needs to supplement
relevant proofs after filing the review and adjudication applications shall
make a statement in the Application and submit the same number of copies of
the proofs as that of the Application within three months from the date of
filing. Where the applicant does not make the statement or fails to submit
the relevant proofs at the expiration of the time limit, he is deemed to have
abandoned the supplementation of the relevant proofs.
Article 24. Where there is/are a respondent/respondents
indicated in the Review and Adjudication Application, the Trademark Review
and Adjudication Board, upon acceptance, shall forward the copies of the
Application and the relevant proofs thereto in a timely manner, and require
him/them to submit the Reply to the Trademark Review and Adjudication Board
within thirty days from the date of receipt of the copy of the Application,
and submit the same number of copies thereof as that of the applicants.
Failure to submit the Reply shall not affect the review and adjudication by
the Trademark Review and Adjudication Board.
Article 25. The respondent who needs to supplement
relevant proofs after he makes a Reply shall make a statement in the Reply
and submit the same number of copies of the proofs as that of the Reply
within three months from the date of submitting the Reply. Where the
respondent does not make the statement or fails to submit the relevant proofs
at the expiration of the time limit, he is deemed to have abandoned the
supplementation of the relevant proofs.
Article 26. After receipt of the Reply and the relevant
proofs from the respondent, the Trademark Review and Adjudication Board shall
forward the copies of the Reply and the relevant proofs to the applicant in a
timely manner.
The applicant who has evidence contrary to the Reply and the relevant proofs
shall submit all the evidence to the Trademark Review and Adjudication Board
within thirty days from the date of the receipt of the Reply and the relevant
proofs.
Article 27. The applicant, when filing an Application
or respondent, when filing a Reply, shall, meanwhile, submit valid
certificates capable of proving his identification. The name of the applicant
or the respondent shall be consistent with that indicated in the certificates
submitted. Where there is a change in the name or address of an interested
party, relevant proofs to this effect shall be submitted.
Article 28. The interested party shall categorize,
number and list each proof he submits, briefly explain the source thereof and
specific facts of the evidence, and sign and seal them. The Trademark Review
and Adjudication Board, after receiving the proofs submitted by an interested
party, shall check the proofs according to the list thereof, and the staff
member receiving the proofs shall sign his name thereon and indicate the date
of submission.
Article 29. The Trademark Review and Adjudication
Application and relevant proofs shall be filled out and submitted in the
prescribed form and in conformity with the requirements. Where the Trademark
Review and Adjudication Application and relevant proofs are not filled out
and submitted in the prescribed form and in conformity with the requirements,
the Trademark Review and Adjudication Board shall notify the applicant to
make rectification, requiring him to do so within thirty dates from the date
of receipt of the rectification notification. Failure for the amended
Application and relevant proofs to conform to the prescription or failure to
make the rectification at the expiration of the time limit shall be governed
by Rule 20, paragraph two, of these Rules.
The Trademark Review and Adjudication Reply and relevant proofs shall be
filled out and submitted in the prescribed form and in conformity with the
requirements. Where the Trademark Review and Adjudication Application and
relevant proofs are not filled out and submitted in the prescribed form and
in conformity with the requirements, the Trademark Review and Adjudication
Board shall notify the respondent to make rectification, requiring him to do
so within thirty dates from the date of receipt of the rectification
notification. Failure for the amended Reply and relevant proofs to conform to
the prescription or failure to make the rectification at the expiration of
the time limit shall not affect the review and adjudication by the Trademark
Review and Adjudication Board.
Chapter III Hearing
Article 30. The Trademark Review and Adjudication Board
shall set up a collegial panel to hear a case of trademark review and
adjudication. The collegial panel shall be composed of an odd number of three
or more trademark review and adjudication staff members. However, cases with
clear facts and simple circumstances to be heard by the Trademark Review and
Adjudication Board may be reviewed and adjudicated solely by an individual
trademark review and adjudication staff member.
Article 31. In any one of the following circumstances,
an individual trademark review and adjudication staff member may solely
review and adjudicate a case:
(1) where a trademark which has cited by the Trademark Office in its
rejection decision or opposition adjudication has lost the exclusive right or
the right of priority therein;
(2) where a trademark of which a request for cancellation has been filed has
lost the exclusive right therein;
(3) where a trademark which has cited by the Trademark Office in its
rejection decision is actually owned by an applicant, but rejected by the
Trademark Office because the applicant fails to go through the formalities
for a change in time, and the applicant applies, during the review and
adjudication, to the Trademark Office to complete the formalities for the
change;
(4) where a trademark, cited by the Trademark Office in its rejection
decision, in respect of which another person has filed a prior application or
which he has been granted the registration has been, during the review and
adjudication, approved to be assigned to the applicant; or
(5) any other cases which the Trademark Review and Adjudication Board decides
that they may be under the sole review and adjudication by an individual
trademark review and adjudication staff member.
Article 32. After the trademark review and adjudication
staff members are decided on, the Trademark Review and Adjudication Board
shall notify the interested parties in writing in a timely manner.
Article 33. Where an interested party applies for the
withdrawal of a trademark review and adjudication staff member according to
the provision of Article 9 of the Implementing Regulations and Rule 9 of
these Rules, he shall file the application within fifteen days from the date
of being informed of the trademark review and adjudication staff members.
Where a party finds out the circumstance in which some relevant trademark
review and adjudication staff member should withdraw at the expiration of the
time limit, he may do so before a review and adjudication decision or
adjudication is made, but he shall furnish relevant evidence.
Any trademark review and adjudication staff member whose withdrawal has been
applied for shall suspend his participation in the hearing of the case before
the Trademark Review and Adjudication Board decides whether or not he should
withdraw.
The Trademark Review and Adjudication Board's receipt of a party application
for withdrawal after it makes decision or adjudication shall not affect the
validity of the review and adjudication decision or adjudication.
Article 34. In respect of a party's application for
withdrawal, the Trademark Review and Adjudication Board shall make its
decision within seven days after the date of the receipt of the application,
and notify the applicant in writing. An applicant who is not satisfied with
the decision on withdrawal made by the Trademark Review and Adjudication
Board, may apply for reconsideration once within three days after the date of
the receipt of the decision. During the reconsideration, the trademark review
and adjudication staff member whose withdrawal has been applied for shall not
suspend his participation in the hearing of the case. The Trademark Review
and Adjudication Board shall make its reconsideration decision within three
days, and notify the reconsideration applicant in writing.
Article 35. In hearing a case of reexamination applied
for out of dissatisfaction with a decision by the Trademark Office on the
rejection of trademark registration, the Trademark Review and Adjudication
Board shall review and adjudicate the rejection decision made by the
Trademark Office, the facts of, grounds on and requests for the reexamination
application by the applicant and the factual situation in the course of
review and adjudication.
Article 36. In hearing a case of reexamination applied
for out of dissatisfaction with a decision by the Trademark Office on the
opposition adjudication, the Trademark Review and Adjudication Board shall
review and adjudicate the case in connection with the facts of, grounds on
and requests for, the reexamination application and reply made by the
interested parties.
Article 37. In hearing a case of reexamination applied
for out of dissatisfaction with a decision by the Trademark Office on
cancellation of a registered trademark according to the provision of Article
41, paragraph one, of the Trademark Law, the Trademark Review and
Adjudication Board shall review and adjudicate the case in connection with
the decision made by the Trademark Office and the facts of, grounds on and
requests for, the reexamination application by the interested parties.
In hearing a case of reexamination applied for out of dissatisfaction with a
decision on cancellation of a registered trademark made by the Trademark
Office according to the provision of Articles 44 and 45 of the Trademark Law,
the Trademark Review and Adjudication Board shall review and adjudicate the
case in connection with the facts, grounds and application of law on the
basis of which the Trademark Office has made the decision on cancellation of
a registered trademark.
Article 38. In hearing a case of adjudication requested
according to the provision of Article 41 of the Trademark Law on the
cancellation of a registered trademark, the Trademark Review and Adjudication
Board shall review and adjudicate the case in connection with the facts of,
grounds on and requests for, the reexamination application and reply by the
interested parties.
Article 39. In any one of the following circumstances,
the review and adjudication shall terminate:
(1) the applicant dies, there is not an heir in title, or the heir in title
abandons his right for review and adjudication;
(2) the applicant withdraws his application for review and adjudication;
(3) the interested parties eliminate a dispute via agreement; or
(4) any other circumstance requiring the termination of the review and
adjudication.
Where the review and adjudication terminates, the Trademark Review and
Adjudication Board shall close the case, notify the interested parties in
writing, and explain the reason.
Article 40. Where he requests for withdrawal of his
application before the Trademark Review and Adjudication Board makes a
decision or adjudication, the applicant may withdraw his application upon
explanation in writing to the Trademark Review and Adjudication Board of the
reasons therefor. However, receipt of the request from the applicant for
withdrawal of his application for review and adjudication shall not affect
the validity of the review and adjudication decision or adjudication.
Article 41. The collegial panel shall put down in writing
the case it hears, and the written record shall be signed by the members
thereof. Where the members of a collegial panel are divided in their
opinions, the divided opinions shall be indicated in the collegial record.
The Trademark Review and Adjudication Board shall make decision or
adjudication on a case the review and adjudication of which has been closed.
Article 42. The followings shall be indicated in the
decision or adjudication by the Trademark Review and Adjudication Board:
(1) request for review and adjudication and facts at issue and grounds;
(2) facts ascertained, reasons and grounds for the application of law in the
decision or adjudication;
(3) conclusion made in the decision or adjudication;
(4) the follow-up procedure and time limit available to interested parties;
and
(5) date of the decision or adjudication.
The decision or adjudication shall be signed by the members of the collegial
panel and sealed by the Trademark Review and Adjudication Board.
Article 43. In respect of cases transferred from the
people's court for reexamination where an interested party institutes
proceedings in the people's court out of dissatisfaction with a decision or
adjudication made by the Trademark Review and Adjudication Board, the
Trademark Review and Adjudication Board shall set up another collegial panel
to conduct the review and adjudication again.
Article 44. Where an interested party does not
institute proceedings in the people's court in respect of a decision or
adjudication made by the Trademark Review and Adjudication Board within the
statutory time limit, the decision or adjudication shall become legally
effective.
Chapter IV Public Review and Adjudication
Article 45. The Trademark Review and Adjudication Board
may, at the request of an interested party or according to practical needs,
decide to conduct a public review and adjudication of the application
therefor.
Article 46. If an interested party requests for public
review and adjudication, he shall give specific reasons that the public
review and adjudication is necessary.
Article 47. In respect of the following cases involving
both parties, the Trademark Review and Adjudication Board may decide to hold
the public review and adjudication at the request of an interested party:
(1) One interested party requests for the face-to-face cross-examination or
debate on important evidence with the other party; or
(2) It is necessary to ask for the presence of the witness who has furnished
important oral evidence for testimony or cross-examination.
Article 48. An applicant requesting for the public
review and adjudication shall file the request in writing with the Trademark
Review and Adjudication Board within fifteen days from the date of receipt of
the copy of the Reply made by the respondent; and a respondent requesting for
the public review and adjudication shall file the request together with the
submission to the Trademark Review and Adjudication Board of the Reply or
additional relevant proofs.
Article 49. In any one of the following circumstances,
the Trademark Review and Adjudication Board may decide at its own discretion
to hold the public review and adjudication:
(1) It is necessary for both parties to hold the face-to-face
cross-examination or debate to determine important evidence;
(2) It is necessary to cross-examine and question the witness furnishing
important oral evidence to determine important evidence; or
(3) Any other circumstances in which the public review and adjudication is
necessary.
Article 50. If it holds necessary, the Trademark Review
and Adjudication Board may decide to hold the public review and adjudication
again of a case in respect of which the public review and adjudication has
been held.
Article 51. The public review and adjudication shall be
conducted in respect to the proofs that the interested parties have submitted
to the Trademark Review and Adjudication Board and that have been exchanged
between both parties.
Article 52. Where a decision is made to hold the public
review and adjudication, the collegial panel shall notify, in writing, the
interested parties and other review and adjudication staff members fifteen
days before the public review and adjudication is held, of the date and place
of the public review and adjudication, and the persons making the collegial
panel.
Article 53. The interested parties shall submit the
Receipt of the Public Review and Adjudication Notification to the Trademark
Review and Adjudication Board three days before the public review and
adjudication is held. Where the review and adjudication applicant fails to do
so to reply whether he is going to attend the public review and adjudication
at the expiration of the time limit, or does not attend the public review and
adjudication, his application for review and adjudication shall be deemed to
have been withdrawn, and the review and adjudication proceeding terminates.
The Trademark Review and Adjudication Board shall close the case and notify
the applicant in writing. Where the review and adjudication applicant replies
before the time limit expires, saying not to attend the public review and
adjudication, or the respondent does not return the Receipt at the expiration
of the time limit, nor attends the public review and adjudication, the
Trademark Review and Adjudication Board may hold the review and adjudication
by default.
Article 54. The receipt of the Public Review and
Adjudication Notification shall be signed or sealed by the interested
parties. If they express their intention to attend the public review and
adjudication, the interested parties shall indicate, in the Receipt of the
Public Review and Adjudication Notification, the name and identification of
the attendants the interested parties send to the public review and
adjudication. If an interested party appoints a trademark agency to attend
the public review and adjudication, he shall indicate, in the Receipt of the
Public Review and Adjudication Notification, the name of the trademark agent
who is going to attend the public review and adjudication.
Where a witness is requested to attend the public review and adjudication to
present his testimony regarding the oral evidence he has presented during the
hearing, the name of the witness, the relevant information ascertaining his
identification and the facts to be testified shall be indicated in the
Receipt of the Public Review and Adjudication Notification. A witness who is
not indicated therein shall not attend the public review and adjudication to
present testimony.
Article 55. Those sent by each party to the public
review and adjudication shall not be more than four persons, including the
agent from an appointed trademark agency. If one party sends several persons
to attend the public review and adjudication, he shall appoint one of them as
first speaker to make the main presentation.
Article 56. Before the public review and adjudication
begins, the Trademark Review and Adjudication Board may hold a pre-hearing
preparatory meeting attended by both parties to solicit their opinions
regarding the relevant facts and proofs and to determine the main issues to
be investigated in the public review and adjudication.
The collegial panel shall prepare a record of the opinions raised by the
interested parties at the preparatory meeting held before the public review
and adjudication, and the record shall be verified and signed by both
parties.
Article 57. When the public review and adjudication
begins, the collegial panel shall check the identification certificates of
the participants of the public review and adjudication and confirm whether or
not they are qualified to attend the public review and adjudication and find
out whether or not the interested parties and other participants are present
at the public review and adjudication.
Article 58. Before the investigation at the public
review and adjudication, the collegial panel shall brief on the case, clarify
the main issue in dispute between the two parties, and then proceed to
commence the investigation of the public review and adjudication.
Article 59. The investigation of the public review and
adjudication proceeds in the order as follows:
(1) the applicant presents his review and adjudication requests and briefs on
the relevant facts and evidence;
(2) the respondent makes a defense;
(3) the collegial panel makes verifications as to the review and adjudication
requests, grounds, and the evidence furnished by the parties to the case;
(4) the applicant adduces evidence regarding the grounds of the review and
adjudication request, the facts and proofs based on which the request is
filed; and
(5) the respondent cross-examines the applicant's evidence and raises counter
evidence, and the applicant cross-examines the respondent's counter evidence.
Article 60. In cases of public review and adjudication,
evidence shall be presented at the public review and adjudication and
cross-examined by the parties. Evidence which has not been cross-examined
should not be used as the basis to ascertain the facts in a case. Evidence
which the parties accepted at the pre-hearing preparatory meeting and which
is recorded on files may do so after the collegial panel makes it clear at
the public review and adjudication.
When cross-examining documentary evidence, material evidence or audiovisual
reference material, an interested party has the right to request for
producing the original of the evidence, except that the original has lost or
that there exists evidence showing that the copy or reproduction is
consistent with the original.
Article 61. During the cross-examination, interested
parties shall challenge, clarify and argue about the authenticity, relevance,
legitimacy and the evidential force of the evidence.
Article 62. The cross-examination shall proceed in the
order as follows:
(1) The applicant produces evidence, and the respondent cross-examines it
with the applicant; and
(2) The respondent produces evidence, and the applicant cross-examines it
with the respondent.
Article 63. The members of the collegial panel may
question an interested party or witness on relevant facts and evidence and
require an interested party or witness to make explanation.
An interested party may question a witness with the consent of the collegial
panel.
The interested party shall not question a witness in intimidating or insulting
language or manner.
Article 64. Any witness shall not audit on the public
review and adjudication. When a witness is questioned, other witnesses shall
not be present.
The Trademark Review and Adjudication Board may ask a witness to
cross-examine evidence when necessary.
Article 65. After the public review and adjudication
investigation is over, oral debate may be held. The interested parties make
their observations concerning the facts demonstrated by the evidence, the
issues in dispute and the matter of application of law.
Where they have no dispute over the evidence and facts of the case, both
parties may directly enter into the oral debate on the basis of verification
of the evidence and facts.
Article 66. The oral debate proceeds in the order as
follows:
(1) the applicant makes a presentation;
(2) the respondent makes a defence; then
(3) they debate with each other.
During the oral debate, the members of the collegial panel may ask questions.
Article 67. Where an interested party presents evidence
which he has furnished before, but which has not been investigated in the
public review and adjudication in the course of the oral debate, the
collegial panel may adjourn the debate, and restart the public review and
adjudication investigation. The oral debate shall resume after the
investigation is over.
Article 68. After both parties make their observations
at the debate, the collegial panel shall first ask the applicant and then the
respondent to make their final comments.
Article 69. After the final comments are made, the
public review and adjudication is over. The Trademark Review and Adjudication
Board shall make adjudication according to law within a certain period
afterward, and send the Adjudication to the interested parties.
Article 70. The collegial panel shall put the public
review and adjudication down in writing, recording the important matters
involved in the public review and adjudication. When the public review and
adjudication terminates, the collegial panel shall give the record to the
interested parties for verification. The interested parties have the right to
request for correction of defects or errors in the record. Record that proves
to be correct upon verification shall be signed by the interested parties and
put on file. Where an interested party refuses to sign the record, the
collegial panel shall indicate it in the public review and adjudication
record.
The important matters mentioned in the preceding paragraph contain, among
other things, following information:
(1) the review and adjudication request, grounds and evidence of the parties;
(2) important facts accepted by both parties; and
(3) any other important matters that need to be put down in writing.
Article 71. During the public review and adjudication,
auditing, photograph-taking, sound-recording and video-recording shall not be
allowed without the permission of the Trademark Review and Adjudication
Board.
Chapter V Rules on Evidence
Article 72. If an applicant files an application with
the Trademark Review and Adjudication Board or a respondent raises a
rebuttal, he shall furnish relevant proofs.
The proofs include, among other things, documentary evidence, material
evidence, audiovisual reference material, oral evidence of witnesses,
statements made by the parties and appraisal conclusion.
Article 73. An interested party shall be under the
burden of proof to testify the facts on the basis of which he requests for
the review and adjudication or on the basis of which one rebut the other
party's review and adjudication request.
Where there is no evidence or there is not sufficient evidence to attest to
the factual claims by an interested party, the interested party under the
burden of proof shall bear the adverse consequences.
Article 74. Where one interested party expressly
acknowledges the facts in a case as stated by the other party, the latter is
not under the burden of proof.
The other party's neither acknowledging nor denying the facts claimed by an
interested party shall be deemed acknowledgement thereof.
Where an interested party appoints an agent to attend the review and
adjudication, the agent's acknowledgement shall be deemed the interested
party's acknowledgement, except that the acknowledgement by an agent not
specially authorized directly results in the acknowledgement of the review
and adjudication request of the other party. Lack of denial, on the part of
the interested party present, of the acknowledgement by the agent shall be
deemed acknowledgement thereof.
Where an interested party withdraws his acknowledgement before the debate at
the public review and adjudication is over and the other party gives his
consent thereto, or where there is sufficient evidence to show that his
acknowledgement is made under coercion or in the presence of major
misunderstanding, the other party shall not be exempt from the burden of
proof.
Article 75. An interested party does not need to adduce
evidence to prove the following facts:
(1) facts known to all;
(2) facts deducted from the law;
(3) facts proven according to the law;
(4) facts deducted on the basis of experience and laws of the daily life; and
(5) other facts in respect of which adduction of evidence is not required
under the law. Except that an interested party has evidence to the contrary
which is sufficient enough to upset the facts.
Article 76. An interested party who furnishes the
Trademark Review and Adjudication Board with documentary evidence shall
furnish the original, including the original text, the authentic text and the
copy. The interested party who has difficulty furnishing the original may
furnish the Xerox copies, photographs or extracts certified to be consistent
with the original. Where the Xerox copies, photographs or extracts, which are
certified to be consistent with the original, of the original documentary
evidence kept by a relevant department, the sources shall be indicated and
sealed thereby upon verification.
Article 77. An interested party who furnishes the
Trademark Review and Adjudication Board with material evidence shall furnish
the original material. The interested party who has difficulty furnishing the
original may furnish the reproduction certified to be consistent with the
original material or other evidence such as photographs or video-recordings of
said material evidence. Where the original is of relatively many varieties, a
part thereof shall be furnished.
Article 78. Where an interested party furnishes the
Trademark Review and Adjudication Board with computer data or audiovisual
reference material, such as sound-recordings or video-recordings, the
following requirements shall be complied with:
(1) the original carrier of the relevant reference material be furnished;
where it is indeed difficult to furnish the original carrier, the
reproduction thereof may be furnished;
(2) the way, time, reproducer and facts to be proved of the reproduction be
indicated; and
(3) the sound-recording reference material be attached with the transcripts
thereof.
Article 79. An interested party furnishes the Trademark
Review and Adjudication Board with a witness's oral evidence, the following
requirements shall be complied with:
(1) the name, age, gender, residence, employer or profession and other
information of the witness be indicated;
(2) the witness signs the oral evidence; where he cannot sign it, he put his
seal on it or give proof in some other way;
(3) the date on which it is produced be indicated; and
(4) documents showing the identification of the witness, such as a copy of
identification card shall be attached.
Article 80. Where an interested party furnishes the
Trademark Review and Adjudication Board with an appraisal conclusion, he
shall indicate the entruster, subject matters of appraisal entrusted,
relevant material submitted to the appraisal department, basis of appraisal
and statements of the qualification of the appraisal department and
appraisers and the appraisal conclusion shall be signed by the appraisers and
sealed by the appraisal department. For an appraisal conclusion obtained
through analysis, the process of analysis shall be explained.
Article 81. Where evidence an interested party
furnishes to the Trademark Review and Adjudication Board is formed outside
the territory of the People's Republic of China, the evidence shall be
notarized by a notary office of the country and legalized by the embassy or
consulate of the People's Republic of China in that country, or undergo the
certification procedure provided for in the relevant treaty concluded between
the People's Republic of China and the country.
Where evidence an interested party furnishes to the Trademark Review and
Adjudication Board is formed in Hong Kong, Macao and Taiwan, he shall go
through the relevant certification procedure.
Article 82. Where an interested party furnishes to the
Trademark Review and Adjudication Board instruments or explanatory material
in a foreign language, he shall attach the Chinese translation thereof. Where
an interested party who has furnished evidence in a foreign language fails to
submit the Chinese translation thereof, the evidence in the foreign language
shall be deemed not to have been submitted.
Where the other party has objection to the specific content of the
translation, he shall submit the Chinese translation of the part to which the
objection is raised. If necessary, an entity accepted by both parties may be
entrusted with the translation of the text, in whole or in part, used or
objected to.
Where both parties fail to reach an agreement on the translation entrustment,
the Trademark Review and Adjudication Board may entrust a professional
translation entity with the translation of the text, in whole or in part,
used or objected to. Each party shall bear 50 percent of the fees necessary
for the entrusted translation. A party's refusal to pay the translation fee
shall be deemed its acceptance of the translation submitted by the other
party.
Article 83. In the following circumstances, the
Trademark Review and Adjudication Board may investigate and collect evidence:
(1) facts involved that are likely to prejudice the interests of the country
and public; and
(2) matters of procedure that are irrelevant to substantive disputes, such as
termination of the review and adjudication or withdrawal.
Article 84. A single piece of evidence may be verified
and confirmed as to the presence and strength of evidential force in relation
to the following aspects:
(1) whether the evidence is the original text, original material, copy or
reproduction; whether it is consistent with the original;
(2) whether the evidence is relevant to the facts of a case;
(3) whether the evidence conforms to the law in terms of form or source;
(4) whether the evidence is true in content; and
(5) whether the witness or the person furnishing the evidence has interest in
an interested party.
Article 85. The review and adjudication staff members
shall comprehensively examine and evaluate all the evidence as to the degree
of the relevance of all the evidence to the facts of a case and the
relationship of the evidence.
Article 86. Evidence obtained in ways prejudicing the
lawful rights and interests of another person or contrary to provision on
prohibition of the law shall not serve as the basis for ascertaining the
facts in a case.
Article 87. The following evidence shall not alone
serve as the basis for ascertaining facts in a case:
(1) Oral evidence from a minor which does not match his age or intelligence;
(2) Oral evidence from a witness who is a relative, affiliate or otherwise
closely related to an interested party in his favour or oral evidence not in
his favour from a witness who is adversely-related thereto;
(3) Oral evidence from a witness who should attend the public review and
adjudication but fails to without justification;
(4) Audiovisual reference material difficult to be detected as to whether it
is modified or not;
(5) Copy or reproduction impossible to be verified with the original;
(6) Proofs which one party or another person has modified and which the other
party does not accept; and
(7) Any other proofs that cannot serve as the basis for ascertaining the
facts in a case.
Article 88. A witness presenting evidence shall
objectively state the truth of his personal experience, and shall not do so
in conjectural, inferential or commentary language.
A person who is not able to correctly express his will shall not act as a
witness.
Article 89. The following evidence which one party
furnishes and to which the other party raises his objection without evidence
to the contrary sufficient enough to deny the truth thereof shall be
established by the Trademark Review and Adjudication Board as having its
evidential force:
(1) The original documentary evidence or the Xerox copies, photographs,
copies or extracts thereof which are verified to be consistent with the
original documentary evidence;
(2) The original material evidence or the copies, photographs or
video-recording materials thereof which are verified to be consistent with
the original material evidence;
(3) The audiovisual reference material which is supported by other evidence
and obtained by legal means and free of any doubt or the reproduction thereof
verified without any inconsistency found.
Article 90. Where the other party does not have
evidence and reasons sufficient enough to rebut an appraisal conclusion which
an interested party has entrusted an appraisal department with making, the
evidential force of the appraisal conclusion may be established.
Article 91. In respect of the evidence one party has
furnished, the other party accepts or the evidence to the contrary furnished
thereby is not sufficient enough to rebut it, the Trademark Review and
Adjudication Board may determine its evidential force.
Where in respect of the evidence one party has furnished, the other party has
objection thereto and presents evidence to rebut it, and the other party
accepts the rebutting evidence, the evidential force of the rebutting
evidence may be determined.
Article 92. Where both parties furnish evidence to the
contrary in respect of the same fact, neither has sufficient ground for the
denial of the evidence of the other party, the Trademark Review and
Adjudication Board shall evaluate, considering the circumstances of a case,
whether or not the evidence furnished by one party is obviously more valid in
evidential force than that by the other party, and confirm the evidence
carrying more valid evidential force.
Where it is impossible to evaluate the evidential force of the evidence, and,
as a result, it is difficult to ascertain the facts in dispute, the Trademark
Review and Adjudication Board shall make determination according to the
doctrine for distribution of burden of proof.
Article 93. The Trademark Review and Adjudication Board
shall confirm the facts and accepted evidence acknowledged adverse to an
interested party in his Application, Reply, Written Statement, and the
statements made by the agent he has entrusted in the course of review and
adjudication, except that the party goes back on his words and has evidence
to the contrary which is sufficient enough to upset the evidence.
Article 94. Where an interested party has made his own
statement of, but cannot furnish other relevant evidence to back up, his
claim, the claim shall not be supported, except that the other party
otherwise accepts the claim.
Article 95. The Trademark Review and Adjudication Board
may determine the evidential force of several pieces of evidence as to the
same fact according to the following principles:
(1) Documents and instruments prepared by a State agency and any other
competent department according to the functions and authority thereof prevail
over other documentary evidence;
(2) Appraisal conclusions, materials kept on file and notarized or registered
documentary evidence prevail over other documentary evidence, audiovisual
reference evidence and oral evidence from a witness;
(3) Original documents or materials prevail over copies or reproductions;
(4) Appraisal conclusions made by statutory appraisal departments prevail
over those by other appraisal departments;
(5) Original evidence prevails over to derivative evidence;
(6) Other oral evidence of witnesses prevails to oral evidence from a witness
who is a relative or otherwise closely related to an interested party in his
favour;
(7) Oral evidence from a participant of the public review and adjudication
prevails over that from a non-participant; and
(8) Several pieces of evidence variant in category and consistent in content
prevail over a single isolated piece of evidence.
Chapter VI Time Limit and Service
Article 96. The time limit includes the statutory time
limit and that fixed by the Trademark Review and Adjudication Board.
The time limit is counted in days, months and years. The beginning day of a
time limit is not counted.
Where the last day on which a time limit expires is a public holiday, the
first workday following the public holiday is the date on which the time
limit expires.
Article 97. Where any document or material is sent to
the Trademark Review and Adjudication Board, the date of receipt shall be the
date of delivery where it is delivered personally, or the date of posting
indicated by the postmark if it is sent by post; where the date of posting
indicated by the postmark is illegible, or there is no postmark, the date of
receipt shall be the date on which the Trademark Review and Adjudication
Board actually receives the document or material, except that the interested
party is able to present evidence as to the actual date of posting indicated
by the postmark.
Article 98. Any document of the Trademark Review and
Adjudication Board may be served by post, by personal delivery or by other
means. Where an interested party entrusts a trademark agency, delivery of the
document to the trademark agency shall be deemed delivery thereof to the
interested party.
Where any document is sent to an interested party by the Trademark Review and
Adjudication Board, the date of receipt shall be the date of receipt
indicated by the postmark on which the interested party receives it if it is
sent by post; where the date of posting indicated by the postmark is
illegible, or where there is no postmark, or it is not returned to the
addressor by the Post Office the document shall be deemed to have been
delivered to the interested party on the fifteenth day from the date of
posting the document; the date of receipt shall be the date of delivery if it
is delivered personally. Where any document cannot be sent by post or by
personal delivery, the document may be served by making an announcement. At
the expiration of the thirtieth day from the date of the announcement, the
document shall be deemed to have been served.
Chapter VII Supplementary Provisions
Article 99. The circumstances having arisen before
entry into force of the Decision on the Amendment of the Trademark Law on 1
December 2001 that are listed in Articles 4, 5, 8, 9, paragraph one, 10,
paragraph one (2), (3) and (4), 10, paragraph two, 11, 12, 13, 15, 16, 24, 25
and 31 of the revised Trademark Law and that the Trademark Review and Adjudication
Board reviewed and adjudicated after entry into force of the Decision on the
Amendment of the Trademark Law shall be reviewed and adjudicated pursuant to
the relevant provisions of the revised Trademark Law. In respect of other
circumstances, the Trademark Review and Adjudication Board shall apply the
relevant provisions of the former Trademark Law to the review and
adjudication thereof.
Article 100. Where an interested party applies to the
Trademark Review and Adjudication Board for review and adjudication in
respect of a dispute over a trademark that had been registered for a year
when the Decision on the Amendment of the Trademark Law entered into force,
the time limit for filing the application provided for in Article 27,
paragraph two, of the former Trademark Law shall apply in handling the
application to the Trademark Review and Adjudication Board for review and
adjudication. Where an interested party applies to the Trademark Review and
Adjudication Board for review and adjudication in respect of a dispute over a
trademark that had been registered for less than a year when the Decision on
the Amendment of the Trademark Law entered into force, the time limit for
filing the application provided for in Article 41, paragraph three, of the
revised Trademark Law shall apply in handling the application to the
Trademark Review and Adjudication Board for review and adjudication.
Where an relevant entity or person files on application for review and
adjudication according to the provisions of Article 27 of the former
Trademark Law and Rule 25 of Implementing Regulations thereof before entry
into force of the Decision on the Amendment of the Trademark Law, and the
application falls into the provisions of Articles 13, 15, 16 or 31 of the
revised Trademark Law, the provision for the time limit for filing
application for review and adjudication of Article 41, paragraph two, of the
revised Trademark Law does not apply.
Article 101. Where cases had been accepted before entry
into force of the Decision on the Amendment of the Trademark Law, but fall
outside the scope of review and adjudication by the Trademark Review and
Adjudication Board provided for in Article 28 of the Implementing Regulations
and the review and adjudication of which have not been closed, the Trademark
Review and Adjudication Board shall return them, notify the applicants in
writing and explain the reason.
Article 102. Where cases of re-review and
re-adjudication that have been accepted according to the provisions of Rules
34 and 35 of the Rules for Trademark Review and Adjudication promulgated by
the State Administration for Industry and Commerce on 2 November 1995 before
entry into force of the Decision on the Amendment of the Trademark Law fall
into the scope of review and adjudication by the Trademark Review and
Adjudication Board as provided for in Article 28 of the Implementing
Regulations, the Trademark Review and Adjudication Board shall conduct review
and adjudication thereof again and make decision or adjudication thereon
pursuant to the revised Trademark Law and the Implementing Regulations
thereof, except that it is otherwise provided for in Rules 99 and 100 of
these Rules for the application of the relevant provisions of the former
Trademark Law.
Article 103. The documents or forms for handling review
and adjudication matters shall be formulated and published by the State
Administration for Industry and Commerce.
Article 104. The Trademark Review and Adjudication Board
shall establish an experts consultation group for consultation or comments on
relevant points at issue in the trademark review and adjudication.
The experts consultation group shall be composed of legal experts, and the
Trademark Review and Adjudication Board shall appoint experts to make the
experts consultation group.
Article 105. Before these Rules enter into force, the
Trademark Review and Adjudication Board shall hear cases of trademark review
and adjudication according to the procedure under the Rules for Trademark
Review and Adjudication promulgated by the State Administration for Industry
and Commerce on 2 November 1995. However, where the Rules run into conflict
with the Decision on the Amendments of the Trademark Law, the Decision on the
Amendment of the Trademark Law shall govern. Where the Rules run into conflict
with the Implementing Regulations after the Implementing Regulations enter
into force, the Implementing Regulations shall govern. Where the State
Administration for Industry and Commerce issues notification to provide
otherwise in connection with the Rules, the provisions of the relevant
notification shall be complied.
Article 106. The State Administration for Industry and
Commerce shall be responsible for the interpretation of these Rules.
Article 107. These Rules shall enter into force on 17 October
2002, and the Rules for Trademark Review and Adjudication promulgated by the
State Administration for Industry and Commerce on 2 November 1995 shall be
simultaneously abrogated.
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