In China, the Procedure for Administrative Reconsideration (PAR)
is essentially an appeal mechanism established by the
Administrative Reconsideration Law of China in 1999 aimed at
providing some redress against illegal or improper administrative
actions. It operates like a judicial appeal, albeit within the
administrative realm and with correspondingly less burdensome
formalities and costs compared to typical litigation.
PAR is a remedy available to claimants who consider that their
lawful rights and interests have been infringed by an
administrative body. The claimant is entitled to appeal to the next
level of that body to request a review of the act complained of.
The respondent is required to provide details of the grounds upon
which the administrative act was based. The appellate tribunal will
then examine the case to determine whether the act complained of
was legal and proper and issue its decision within 60-90 days.
These reconsideration decisions can be the subject of further
appeals to the courts.
An explosion of trade mark PAR cases
Until late 2014, the PAR mechanism was seldom used in the trade
marks arena. This changed with the advent of the amended Trade Mark
Law of China.
The amended law imposed tight statutory time limits on the China
Trademark Office (CTO) and on the Trade Mark Review and
Adjudication Board (TRAB). To meet these time limits, the CTO began
to dismiss applications and oppositions on seemingly trivial
grounds (e.g. discrepancy between "Company Limited" and
its abbreviated form "Co. Ltd."). The CTO has also begun
to dismiss applications if proposed amendments to a description of
goods/services are deemed "non-standard". Oppositions not
supported by evidence at the date of filing have been dismissed
even though the opponent is presumed to have three months to file
These arbitrary dismissals have fueled an explosion in the
number of trade mark-related PAR cases. Statistics indicate that
nearly 300 trade mark PAR cases were filed in the second half of
2014, which is triple the number for the whole of 2013. 50 per cent
of cases concern dismissal of applications by the CTO.
Handling trade mark PAR cases
Trade mark-related PAR applications are directed to the State
Administration for Industry and Commerce (SAIC), which sits just
above the CTO and TRAB. In practice, cases are filed with the TRAB
because the SAIC delegated this function in 2009. Some cynics might
suggest that the TRAB reviewing TRAB decisions may not be ideal.
The documentary burden on foreign applicants for PAR is heavy in
that legalised documentation is required.
The TRAB has developed a soft approach to PAR cases. It will
open informal discussions with the CTO and suggest the CTO
voluntarily withdraw or revoke unlawful or unreasonable dismissals.
If the CTO complies, the TRAB will ask an applicant to withdraw its
PAR application to avoid embarrassment for the CTO. Otherwise, the
TRAB will order the CTO to explain in writing the basis for its
action and then issue a decision in 60-90 days to sustain or revoke
the CTO dismissal notice. In 2014, about 70 per cent of PAR cases
accepted by the TRAB were settled by mediation. This is six times
the number of settlements achieved in 2013. It suggests that the
CTO voluntarily withdrew or revoked about 70 per cent of the
disputed dismissals. 30 per cent of cases proceeded to formal TRAB
decisions, the majority of which were in favor of the CTO. Less
than 2 per cent of the PAR decisions were appealed further to the
courts for judicial review.
The PAR mechanism has proved an efficient and effective method
of contesting arbitrary trade mark dismissals by the CTO.
Nonetheless, it is important to note that it is only effective in
addressing dismissals based on formal or procedural grounds.
Substantive decisions made by the CTO during examination are not
subject to the same review procedure. These decisions can be
challenged using the normal procedures established by the Trade
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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