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Rules for Trademark ...
(2015-3-18)
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(Promulgated on 2 November 1995 in the former Order No. 37 and revised
on 17 September 2002 in the Order No. 3 of the State Administration for
Industry and Commerce)
Chapter I General Provisions
Rule 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 Implementing
Regulations of the Trademark Law of People's Republic of China (hereinafter
referred to as the Implementing Regulations).
Rule 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.
Rule 3 The review and adjudication
activities in which an interested party participates in cases of trademark
dispute shall proceed in writing.
Rule 4 The Trademark Review and
Adjudication Board shall hear cases of trademark dispute on the basis of facts
and in accordance with law.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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 therefore.
Rule 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.
Rule 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.
Rule 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.
Rule 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 entrusted.
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.
Rule 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.
Rule 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
Rule 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.
Rule 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.
Rule 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 organization, 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
(4) 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 42 The following 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.
Rule 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.
Rule 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
Rule 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 therefore.
Rule 46 If an interested party requests
for public review and adjudication, he shall give specific reasons that the
public review and adjudication is necessary.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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 expiration, 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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
defence;
(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.
Rule 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.
Rule 61 During the cross-examination,
interested parties shall challenge, clarify and argue about the authenticity,
relevance, legitimacy and the evidential force of the evidence.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule
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
Rule 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.
Rule 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.
Rule 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 authorised 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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
notarised by a notary office of the country and legalised 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.
Rule 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.
Rule 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;
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 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 notarised 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
Rule 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.
Rule 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.
Rule 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
Rule 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.
Rule 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.
Rule 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.
Rule 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.
Rule 103 The documents or forms for
handling review and adjudication matters shall be formulated and published by
the State Administration for Industry and Commerce.
Rule 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.
Rule 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 with.
Rule 106 The State Administration for
Industry and Commerce shall be responsible for the interpretation of these
Rules.
Rule 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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