China: Provisions Of The Supreme People’s Court On Several Issues Concerning The Trial Of Administrative Cases Involving The Granting And Determination Of Trademark Right (DRAFT For Comment)

Drafted by the Supreme People's Court on October 15, 2014

(NOT officially promulgated yet)

(English Translation for Reference WITHOUT Legal Effects)

To properly adjudicate administrative cases involving the granting and determination of trademark right, exercise the right of judicial review under the law, clarify and unify the adjudication standard, these Provisions are promulgated based on regulations including the Chinese Trademark Law, the Chinese Administrative Procedure Law , and in combination of trial practices.

Rule 1 [Types of Administrative Cases concerning Granting and Determination of Trademark Right]

The term "administrative cases concerning granting and determination of trademark right" mentioned in these Provisions refers to the lawsuits filed before the People's Court by correspondents or interested parties who are dissatisfied with specific administrative decisions rendered by the Trademark Review and Adjudication Board (TRAB) on review of trademark rejection, review of disapproval for trademark registration, review of trademark cancelation, trademark invalidation declaration, and review of trademark invalidation declaration.

Rule 2 [Scope of Adjudication]

The scope of adjudication of the People's Court regarding the legitimacy of the specific administrative acts in relation to granting and determination of trademark right shall generally be determined according to the claims and grounds in the litigation raised by the interested parties. As for the facts and grounds already claimed during the review and adjudication process before the TRAB while not being claimed during the litigation, if the specific administrative acts of the TRAB obviously erred in the determination, the People's Court may render a decision against the erroneous acts after hearing the statements from the various interested parties.

Rule 3 [Extensive Trademark Squatting]

Where a trademark registrant obviously lacks true intention to use, extensively registers other's trademarks with certain fame, or trademarks identical or similar to geographic name with certain fame, or files extensive trademarks without justified reasons, and the TRAB shall apply Article 4 and Article 44 of the Chinese Trademark Law to disapprove the registration or declare the invalidation thereof, it shall be upheld by the People's Court.

Rule 4 [Article 10(1) of the Chinese Trademark Law]

The provision of "those identical with or similar to signs such as the state name of the People's Republic of China" prescribed by Article 10(1) of the Chinese Trademark Law means the trademark in its entirety is identical or similar to signs such as the state name.

As for the sign containing the state name of the People's Republic of China but to which is not identical or similar in its entirety, if the registration of such sign as a trademark is likely to cause abuse of the state name, the People's Court may deem it as the circumstance prescribed under Article 10(1) of the Chinese Trademark Law .

Rule 5 [Other Detrimental Influences]

The term "other detrimental influences" prescribed under Article 10(8) of the Chinese Trademark Law refers to negative or adversary influences that a sign as a trademark or its constituent element is likely to cause to the politics, economics, cultures, religions, ethnic groups and other social public interests and public orders of China.

Where the TRAB disapproves the registration in the rejection review procedure, holding that the trademark application for registration of the name of a public figure and etc. is filed without authorization, which is likely to cause other detrimental influences, such TRAB decision shall be upheld by the People's Court.

Where a trademark application for registration by using the name of a deceased natural person without authorization from the successor thereof, and misleads the public to associate the goods bearing such trademark with said deceased natural person, it may be deemed as "other detrimental influences" prescribed under Article 10(8) of the Chinese Trademark Law .

Rule 6 [Distinctiveness of Three-Dimensional Trademark]

Where the shape or the partial shape of the goods is used as a trademark registration for the three-dimensional sign, the distinctiveness of the three-dimensional sign shall be determined comprehensively based on the relevant public's general knowledge.

Where the trademark applicant provides evidence proving that, through long term use or extensive use, the relevant public has already recognized said sign as a sign of identifying the origin of goods, such sign may be deemed as distinctive.

The creation with originality or first use of the three-dimensional sign by the trademark applicant may be deemed as one factor for consideration for distinctiveness.

(Different Opinion)

Where the shape or the partial shape of the goods is used as a trademark registration for the three-dimensional sign, generally, the said sign shall not be deemed as distinctive, as the relevant public under general situations is unlikely to recognize it as a sign identifying the origin of goods.

The creation with originality or first use of the shape by the trademark applicant is not necessarily a decisive factor for deeming that said sign is of distinctive characteristics as a trademark.

Where a sign without distinctive characteristics acquires high fame through use, becomes widely known to the relevant public, and subsequently possesses the function of identification as a trademark, such sign shall be deemed as distinctive.

Rule 7 [Unregistered Well-Known Trademark]

Where an interested party claims the latter trademark constituting a copy, imitation, or translation of its unregistered well-known trademark shall be disapproved for registration or invalidated based on Article 13(2) of the Chinese Trademark Law, the People's Court shall take the comprehensive considerations of the following factors according to the provisions of relevant laws and judicial interpretations, in order to determine the likelihood of confusion:

  1. Degree of the similarity between the two trademarks;
  2. Degree of the similarity and relatedness of goods designated under both trademarks;
  3. Degree of distinctiveness and fame of the prior trademark;
  4. Degree of attention from the relevant public.

The subjective intention of the latter trademark applicant and the evidence showing the actual confusion may be deemed as reference factors to determine the likelihood of confusion.

Rule 8 [Registered Well-Known Trademark]

Where an interested party claims that a latter trademark constituting a copy, imitation or translation of its registered well-known trademark shall be disapproved for registration or invalidated under Article 13(3) of the Chinese Trademark Law, the People's Court shall take comprehensive considerations of the following factors according to the provisions of relevant laws and judicial interpretations, in order to determine the likelihood of misleading the public and damaging the interests of the well-known trademark registrant:

  1. Degree of fame for the prior trademark;
  2. Degree of distinctiveness for the prior trademark;
  3. Whether the latter trademark is sufficiently similar to the prior trademark;
  4. Goods under each of the two trademarks;
  5. Degree of recognition for the relevant public of the latter trademark towards the prior trademark;
  6. Signs used by other market entities which are similar to the prior trademark.

Rule 9 [Conversion of Law Application between Article 13 and Article 30 of the Chinese Trademark Law]

Where an interested party claims the latter trademark constituting a copy, imitation or translation of its registered well-known trademark, shall be disapproved for registration or invalidated, and the TRAB holds that the latter trademark is identical with or similar to the prior trademark on identical or similar goods, and subsequently renders the decisions under Article 30 of the Chinese Trademark Law, if the latter trademark has been registered for no more than five years, the People's Court may adjudicate the case under Article 30 thereof after hearing the statement from the interested parties.

Where both the latter trademark and the prior trademark obtain registrations on identical or similar goods, if the interested party claims the application of Article 13(3) of the Chinese Trademark Law based on the ground that Article 30 thereof is insufficient to protect his interests, the People's Court may apply either Article 13 or Article 30 thereof according to the situations of the case.

(Different Opinion) Combine the former two paragraphs as follows:

Where both the latter trademark and the prior trademark obtain registrations on identical or similar goods, while the interested party claims under Article 13(3) of the Chinese Trademark Law , if the latter trademark has been registered for no more than five years, the People's Court may adjudicate the case under Article 30 thereof; where the latter trademark has been registered for more than five years, the People's Court may adjudicate the case by applying Article 13(3) thereof.

Rule 10 [Sequence of Application Requirements for Article 13 of the Chinese Trademark Law]

Where the People's Court applies Article 13(2) or Article 13(3) of the Chinese Trademark Law, the well-known status of the trademark seeking protection shall first be determined; under the circumstance that such well-known status may be determined, then it may be further determined on whether the disputed trademark constitutes a copy, imitation, or translation of the well-known trademark, and whether the disputed trademark is likely to cause confusion or mislead the public and thus potentially damages the interests of the well-known trademark owner.

(Different opinion): Delete this Rule

Rule 11 [Squatting by Persons with Specific Relationship to the Agent or Representative]

Where a trademark applicant has specific identification relationship or other specific relationship to the agent or representative as prescribed under Article 15(1) of the Chinese Trademark Law, and it may be presumed that said trademark application is a collusion or conspiracy with said agent or representative, the People's Court shall adjudicate the case under Article 15(1) thereof.

(Different Opinion)

Where a trademark applicant has specific identification relationship or other specific relationship to the agent or representative as prescribed under Article 15(1) of the Chinese Trademark Law, and it may be presumed that such trademark applicant had awareness of the existence of said agent or representative, the People's Court shall adjudicate the case under Article 15(2) thereof.

Rule 12 ["Other Relationship" under Article 15(2) of the Chinese Trademark Law]

The following circumstances shall be deemed as "other relationship" prescribed under Article 15(2) of the Chinese Trademark Law:

  1. The trademark applicant and the prior user of the trademark are located in the same geographic region and the same industry, and the trademark with the prior use is of relatively strong distinctiveness;
  2. The two parties have once negotiated regarding forming an agency or representative relationship but fail to form such relationship;
  3. The trademark applicant extensively registers multiple trademarks of the prior user.

Rule 13 [Geographic Sign]

Where a rights holder of a geographic sign claims the other party's trademark shall be disapproved for registration or invalidated under Article 16 of the Chinese Trademark Law, if the goods designated under the disputed trademark are not identical with the products under geographic sign, such rights holder shall be obligated to prove that use of the geographic sign on the specific products still tends to cause the relevant public to mistakenly believe said products originate from said region of the geographic sign and accordingly possesses the specific quality, reputation or other characteristics.

If the geographic sign has obtained registration as a collective trademark or certification trademark, the relevant rights holder may claim its rights by choosing either said Article 16 or Articles 13, 30 thereof, etc.

(Different Opinion for Paragraph 2)

Where an interested party claims a geographic sign, certification trademark or collective trademark filed by the other party violates Article 13(3) or Article 30 of the Chinese Trademark Law, based on his regular prior trademark registration other than the geographic sign, certification trademark or collective trademark, and requests the disapproval for registration or invalidation thereof, such request shall not be supported. Where an interested party claims a regular trademark application other than the geographic sign, certification trademark or collective trademark filed by the other party violates Article 13(3) or Article 30 thereof, based on his geographic sign, certification trademark or collective trademark, and requests the disapproval for registration or invalidation thereof, such request shall not be supported.

Rule 14 [Prior Copyright]

Where an interested party claims to enjoy prior copyright over the sign of the disputed trademark and claims that the application of such disputed trademark infringes upon his prior right, such interested party shall be obligated to provide evidence proving he is the copyright owner or other interested party entitled to claiming the copyright.

Trademark publication, trademark registration certificate, etc. may serve as preliminary evidence to ascertain the copyright owner or the interested party thereof. Where the applicant of the disputed trademark raises opposition and challenge, such applicant shall be obligated to provide counter evidence to support his opposition and challenge.

The People's Court shall adjudicate, by applying the relevant provisions of the Chinese Copyright Law, whether the prior right claimed by the interested party constitutes as a work, and whether the application of the disputed trademark constitutes copyright infringement.

(Different Opinion)

Where the interested party claims the disputed trademark infringes upon his prior copyright, the People's Court shall adjudicate whether the sign constitutes a work, whether such interested party is the copyright owner or other interested party entitled to claiming the copyright, and whether the disputed trademark constitutes copyright infringement, in accordance with relevant provisions of the Chinese Copyright Law and other laws.

A separate trademark registration certificate, trademark gazette, or a separate copyright registration certificate acquired during or after the trademark review and adjudication procedure shall not be used alone to prove the copyright ownership, but may serve as preliminary evidence of the copyright ownership on the work if it is in combination with other related evidence.

Rule 15 [Prior Name Right]

Where an interested party claims that the disputed trademark infringes upon his name right, if the relevant public believes said name refers to said natural person, and the relevant public tends to believe that the goods marked with said name are licensed by or have other specific associations with the natural person, the People's Court may deem that said disputed trademark infringes upon the name right of said natural person.

Rule 16 [Prior Trade Name Right]

Where the trade name claimed by the interested party has certain fame, the other party files without authorization the trademark application identical with or similar to said prior trade name of said interested party on goods identical with or similar to those said interested party is mainly engaged in, and tends to cause confusion among the relevant public as to the sources of the goods, and if said interested party claims the prior right prescribed under Article 32 of the Chinese Trademark Law, it shall be upheld by the People's Court.

Rule 17 [Character Image and Character Name in a Work]

Where an interested party claims that the disputed trademark infringes upon his copyright of the character image in violation of Article 32 of the Chinese Trademark Law, the People's Court shall adjudicate whether such character image constitutes a work in line with meanings of the Chinese Copyright Law.

Where the name of a work and character name in a work etc. do not constitute a work, but they enjoy relatively high fame and the use thereof on the goods of relevant Classes tends to mislead the relevant public to mistakenly believe they are licensed by or have other specific associations with the rights holder of the work, and if said interested party claims its prior right under Article 32 of the Chinese Trademark Law, it shall be supported by the People's Court.

Rule 18 [Determination of Bad Faith in Squatting by Unfair Means]

Where an interested party claims that the trademark applicant squats by unfair means the trademark with prior use and certain influence, the People's Court shall determine whether it constitutes the unfair means, by considering both of the two aspects: whether the trademark applicant knew or should have known said trademark with prior use and certain influence, as well as whether the trademark applicant has the bad faith to invade the goodwill of the trademark owned by other parties.

Under general conditions, where a trademark with prior use enjoys certain influence, while the trademark applicant knew or should have known such trademark, it may be presumed that such trademark applicant has the bad faith. The factors such as the trademark with prior use has strong distinctiveness or the trademark applicant and the user of prior trademark resides in the same geographic region are helpful in determining the bad faith.

Rule 19 [Determination of Bad Faith for Copy, Imitation, and Translation of a Well-Known Trademark]

As long as the cited trademark has achieved the well-known trademark status through use before the application date of the disputed trademark, and the applicant of the disputed trademark knew or should have known the above fact, the People's Court may presume that the applicant of the disputed trademark has the bad faith in filing the application for the disputed trademark.

Rule 20 [Co-existence Agreement]

Where the TRAB decides, based on conflicts with the prior cited trademark, to reject a trademark application for registration, to disapprove a trademark application for registration, or to declare a registered trademark invalid, if the rights holder of the cited trademark reaches an agreement to consent the registration of the latter trademark during the litigation procedure, the People's Court may permit such registration.

Rule 21 [Violation of Legal Procedure]

Where an interested party claims that the following circumstances of the TRAB shall be deemed as "violation of legal procedure" as prescribed under Article 54(2) of the Chinese Administrative Procedure Law, the People's Court shall uphold such claim:

  1. Omission of important grounds for review raised by the interested party, which may potentially affect the conclusion on substantive right;
  2. Failure of informing the interested party of the members of the collegial panel during the review procedure, and upon examination there truly were grounds for disqualification that was not disqualified;
  3. Failure of notifying the competent interested party to participate in the review procedure, and such interested party expressly raised an opposition;
  4. Other serious violations of legal procedure, which may potentially affect the substantive interests of the interested party.

Rule 22 [Evidence Submitted during the Litigation]

Generally, evidence not submitted during the administrative procedure but submitted during the litigation shall not be admitted, except the permission from the People's Court. However, evidence satisfying both the following requirements is an exception:

  1. Evidence submitted during the litigation is to further prove the relevant facts and grounds which have been adjudicated by the TRAB;
  2. The supplemental evidence may sufficiently affect the outcome of the substantive right, and there are no other remedies available for the party submitting the evidence.

Evidence in the preceding paragraph shall be submitted within the time limitation of evidence adducing during the first instance proceeding. However, the new evidence submitted by the interested party under the law during the second instance proceeding and retrial proceeding is an exception.

Rule 23 [Change of Circumstances]

Where after the TRAB renders its adjudication to reject a trademark application for registration, to disapprove a trademark application for registration, or to invalidate a registered trademark, and in the process of adjudicating administrative cases involving the granting and determination of trademark right, if the facts and grounds for such disapproval of registration or declaration of invalidation regarding the disputed trademark cease to exist, the People's Court may, based on the change of circumstances, revoke the relevant adjudication of the TRAB and order the TRAB to re-render an adjudication based on facts after the change.

Rule 24 [Rule against Double Jeopardy (Principle of Non Bis Idem)]

Where the TRAB has rendered a decision or adjudication on an application for trademark review, no one shall re-file an application for review based on identical facts and grounds.

Where the TRAB, during the trademark rejection appeal proceeding, grants the preliminary approval of the trademark application based on the grounds that the applied trademark is not identical with or similar to the cited trademark on the identical or similar goods, the following circumstances shall not be deemed as "an application for review based on identical facts and grounds":

  1. Where the Chinese Trademark Office (CTMO) upholds the opposition filed by the registrant of the cited trademark or an interested party thereof based on said cited trademark, and the applicant of the disputed trademark requests for review;
  2. The holder of the cited trademark, after approval of registration for the applied trademark, requests to declare said trademark registration invalid based on said cited trademark.

Rule 25 [Death or Termination of the Trademark Applicant]

When adjudicating an administrative case of the TRAB review of disapproval for registration, if the other interested party proves that the business license of the opposed applicant has been suspended for more than three years, and the opposed trademark has not been licensed for use, the People's Court may presume that the opposed applicant has no actual intention to use the trademark and accordingly adjudicate that the opposed trademark shall be disapproved for registration.

(Different Opinion): Delete this Rule

Rule 26 [Direct Change of Legal Basis in Rejection Appeal Cases]

When adjudicating administrative cases of the trademark rejection appeal, if the People's Court holds that the TRAB has conducted substantive review of the disputed facts and grounds and the facts ascertained are clear, the review procedure is legitimate, the adjudication is correct, while only the application of law is inappropriate, the People's Court may dismiss the plaintiff's claim based on a direct change of legal basis.

Rule 27 [Substantial Adjudication]

When adjudicating cases involving granting and determination of trademark right, the People's Court shall adjudicate all the substantial problems covered by the TRAB adjudication and decision which are dissatisfied by the interested party, and shall deliver the express opinion in the judgment where a determination may be made based on the existing evidence.

Rule 28 [Substantial Resolution on the Dispute]

Where the People's Court holds the view through trial that all the grounds for the TRAB invalidation declaration regarding the disputed trademark are invalid and all the grounds for invalidation raised by petitioner have been adjudicated, while the disputed trademark shall be maintained, the People's Court may directly revoke the TRAB decision without ordering the TRAB to re-render a decision.

Rule 29 [Cycle Action]

Where an effective judgment of the People's Court has expressly adjudicated the relevant facts and application of the law, the interested party initiates the litigation against the TRAB decision which are re-rendered based on such effective judgment, the People's Court shall not accept such litigation in accordance with Rule 44(10) of the Supreme People's Court Interpretations on Several Issues concerning Implementation of the Chinese Administrative Procedure; and the People's Court shall dismiss such litigation where the case has been accepted.

Source (Chinese text):
http://www.court.gov.cn/gzhd/zqyj/201410/t20141015_198431.htm

Beijing EAST IP Law Firm presented English Translation for Reference WITHOUT Legal Effects

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PDF Download Here (English Translation & Chinese Version)

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