China: Beijing IP Court's Stricter Formalities For Trademark Administrative Lawsuits

Last Updated: 9 December 2016
Article by Xiaoming Liu

In China, if a party is dissatisfied with the decisions made by the Trademark Review and Adjudication Board (TRAB) on any trademark appeal or invalidation case, it is entitled to lodge a lawsuit before the Beijing IP Court. An increasing number of the plaintiffs, especially foreign legal persons, usually foreign companies, complained about the Court's stricter formality requirements in recent years. I would like to clarify the change from a professional perspective, and hopefully in a pragmatic manner.

  • Less strict formality examination policies before November 2014

Before the Beijing IP Court was set up in November 2014, all trademark lawsuits against TRAB needed to be filed with the Beijing First Intermediate People's Court. To lodge a lawsuit, a legal person plaintiff was required to file the following documents, after notarization, legalization and authorized translation, to meet the formal requirements in proof of the plaintiff's qualification to lodge the lawsuit:

  1. The original executed Power of Attorney (POA)
  2. A Certificate of Identity of Legal Representative 
  3. A copy of the plaintiff's Certificate of Incorporation

Usually, as long as the above listed documents can be notarized and legalized in the plaintiff's home country and then translated into Chinese by a few authorized or designated translation firms in Beijing, the case could pass the formality examination, without further challenge from the Court.

  • Tightened formality examination after November 2014

After the Beijing IP Court was set up in November 2014, all the trademark lawsuits against TRAB were to be exclusively lodged with the Beijing IP Court. The new Court requires the same formality documents regarding the plaintiff's qualification as in the Beijing First Intermediate People's Court, but it tightened the requirements to a large extent. In many cases, even if the above listed documents are well notarized and legalized in the plaintiff's home country, the documents, especially the "Certificate of Identity of Legal Representative" or "Certificate of Incorporation", may still be rejected

In practice, the Court's requirements can be summarized as follows concerning the above listed three documents, namely the POA, "Certificate of Identity of Legal Representative" and "Certificate of Incorporation":

  1. There are no special requirements about the natural person who signs the POA as the plaintiff's legal representative;
  1. The "Certificate of Identity of Legal Representative" should very clearly state that the natural person is the plaintiff's legal representative and is empowered to sign legal documents;
  1. It should be very clear that a natural person, usually a different natural person,  who signs the "Certificate of Identity of Legal Representative" has the authorization to sign on behalf of the plaintiff, and such authorization often originates from some statement inthe "Certificate of Incorporation". The following is a typical and good example of a clear statement regarding who can represent the company.

Statutory representation:
Under the law, the Board of Directors represents a company
Representation is based on position:
By the Chair of the Board and the Managing Director, each on their own, and by any two Board members jointly

Persons and titles/positions
... Chair of the Board
... Managing director
... Director
... Director

  1. The "Certificate of Incorporation" usually should be a copy issued by a competent governmental authority or downloaded from the governmental authority's official website. The downloading process should be conducted or witnessed by the Notary Public. And the Certificate should be one issued, updated or downloaded very recently, usually within the last 12 months, which can prove that the plaintiff exists and is in good standing at the time of lawsuit. In other words, the authenticity of "Certificate of Incorporation" should be endorsed by a governmental authority;
  1. If any of the three documents fails to satisfy the above logic, the plaintiff most likely will need to submit substitute documents. For example, if there is no clear statement in a "Certificate of Incorporation" about who can represent the company, but there is such a statement in the Articles of Incorporation or Resolution of the Board of Directors, then such Articles of Incorporation or Resolution of the Board of Directors might be acceptable as substitute or supplementary documents. However, if such Articles of Incorporation or Resolution of the Board of Directors are kept by the plaintiff itself but not previously recorded or docketed by a governmental authority, the documents might remain unacceptable due to a lack of governmental authority's endorsement about its authenticity.
  1. If there are no suitable substitute documents, it might be necessary to hold a board meeting to form a Resolution of the Board of Directors to grant written authorization to the aforesaid different natural person. In some judges' opinions, the Resolution should be formed, signed and witnessed by Notary Public, to ensure its authenticity. Alternatively, the Resolution should be firstly recorded in some governmental authority and then a copy is obtained from the governmental authority or downloaded from the authority's official website; and
  1. Some foreign parties have provided affidavits or Notary Public's personal acknowledgement, to prove that the different natural person is entitled to represent the company, but such evidence by itself usually will be regarded as insufficient to prove the different natural person's authorization. Consequently, the lawsuit shall be rejected.

From the practices mentioned above, we can see that the Court requires a complete chain of authorization. If any part of the chain is missing or not very clear, the case might be rejected. In addition, the documents obtained from or endorsed by the governmental authority are usually accepted without doubt about the authenticity.

The Court seems to want to make absolutely sure that the lawsuit is really lodged by a qualified plaintiff and the POA is really signed by a natural person who has the authorization, to avoid any mistakenly filed lawsuit.

In spite of the good intention, the consequences of such stricter formality requirements are too hard on the parties concerned.

  • The consequences of stricter formality examination

After the stricter formality requirements were adopted, it has become much more time-consuming to prepare such qualified documents. Today, the Beijing IP Court regarded as unacceptable much of the notarization done in the plaintiff's own familiar way in its home country. The plaintiff needs much more time to figure out firstly how to do the notarization in order to satisfy the stricter requirements.

As the notarization procedures vary from country to country, or even from region to region in the same country, it is not easy to tell how the notarization should be done in such a way that is acceptable to the Beijing IP Court and also in compliance with the local notarization law and practice.

  • The latest progress and some tips

The Beijing IP Court's stricter formality requirements have attracted widespread complaint. Upon receiving this information, the IP Court leaders took the complaint seriously and plan to draft some detailed guidelines to better help the foreign plaintiffs to provide acceptable documents, but the draft has not yet been published.

Before the draft is published or the strict requirements are loosened, the following tips might be helpful for passing the strict formality examination.

  1. In the countries where there is a tradition (such as Japan) or clear provision in the law that the corporation seal/stamp can represent the company, the seal on the above listed documents will be sufficient.
  1. In countries outside the scope of the preceding paragraph, the seal can still represent the company if it is so provided in the plaintiff's Article of Incorporation and a copy of seal is recorded in the relevant governmental authority.
  1. The plaintiff usually has three months to prepare and supplement qualified documents, and time extension is usually not possible. However, if the judge clearly knows that the plaintiff did its best to prepare documents but still cannot meet the deadline, then the judge may grant a time extension by using his or her discretion. Therefore, it is advisable to keep the judge informed of every effort made and any progress regarding the preparation of documents.
  1. It is more advisable to prepare and supplement documents as early as possible, rather than using up the entire three month period. This way, even if some documents are not qualified, the plaintiff still has time to re-prepare the same.

In general, the Chinese procedural laws are not detailed enough in some respect. The judges are empowered to use their discretion to accept or refuse certain documents. As a result, inconsistencies happen. We hope that the courts can standardize the formal requirements in a more predictable and consistent way, as soon as possible.

(This article was originally published in the IPPRO the Annual 2016/2017, Page 40-41)

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Xiaoming Liu
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions