The Beijing IP Court published a notice on its website in
October 2015 entitled Collection and Publication of Opinions
Regarding Law Application on Issues Related to Article 19.4 of the
Trademark Law. This notice looks like irrelevant to the patent
world, but actually the implication goes well beyond trade marks.
Arguably, this court notice started something similar to the amicus
brief system for Chinese IP cases. The issue in this case is
related to whether or not Chinese trade mark agent firms are
entitled to register trade marks under their own names except for
their own trade names.
What is significant is that the panel adjudicating this case went
out to associations and IP law centres in several law schools for
opinions. The notice cited above published five law professors'
opinions in full text. We do not know how the Beijing IP Court
informed the law professors about the background of the case. But
it is very interesting that the Court conducted such an experiment.
Imagine what becomes possible if the same court issues a similar
request in an injunction case involving standard essential
The notice itself includes several interesting details:
First, it is the court panel that was assigned to this
particular case that sought the opinion from the Universities,
associations and research centers. The court said it sent out
"survey forms" to such entities. The notice was signed by
the three judges' names.
Second, the reason the panel sought the opinion is that the
relevant legal provision is new and the very issue is of importance
to the trade mark filing practice and growth of the trade mark
Third, the notice states that the panel published five opinions
it received, for the purpose of "impartiality" and
"transparency". The panel did not say how many opinions
it received in total.
The implications of this notice could be far-reaching in terms
of improvement of the judiciary transparency and quality of
adjudication. A system similar to amicus briefs will allow the
courts to hear from those interested parties on some very complex
legal issues that may have significant social impact. The
involvement of key stakeholders and thought leaders, including
those from the international legal community, will assist the
courts to in- crease the depth of thinking. China now uses
"guiding cases" or leading cases to improve the
consistency of judgments and to guide local courts to deal with
controversial issues. Amicus brief will certainly benefit the
courts to decide what should be those "guiding
The court notice issued on October 13 is clearly another sign of
commitment to a better IP system in China. The Beijing IP Court is
the first IP court to be established in China. The judges appointed
to this court have been considered among the best in China.
Hopefully, the first experiment in trade mark cases will soon
expand over to the patent world.
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