China: Provisions Of The Supreme People's Court On Several Issues Concerning The Hearing Of Administrative Cases Involving The Granting And Affirmation Of Trademark Rights

Fa Shi [2017] No. 2

(Adopted at the 1703rd meeting of the Judicial Committee of the Supreme People's Court on December 12, 2016, effective as of March 1, 2017)

 These Provisions are promulgated to facilitate the Court's impartial hearing of administrative cases involving the granting and affirmation of trademark rights, in accordance with the laws and regulations of the "Trademark Law of the People's Republic of China" ("Trademark Law") and the "Administrative Procedure Law of the People's Republic of China" ("Administrative Procedure Law"), while taking into consideration the Court's trial practice.

Article 1

The administrative cases involving the granting and affirmation of trademark rights (trademark administrative cases) referred to in the Provisions are the litigations brought before the Courts by the administrative counterparts or interested parties against the decisions rendered by the Trademark Review and Adjudication Board (TRAB) under the State Administration for Industry & Commerce in respect of cases of review on trademark refusal, review on disapproval of trademark registration, review on trademark revocation, trademark invalidation declaration, review on trademark invalidation declaration, etcetera.

Article 2

In principle, the Court shall rule on the merits of an administrative action involving the granting and affirmation of trademark rights within the scope as determined by the claims and grounds of actions raised by the plaintiff. With respect to grounds that the plaintiff has not raised in the litigation, the Court may, after hearing the statements of all parties, examine and rule on the basis of such grounds if it concludes the TRAB's findings was obviously inappropriate.

Article 3

"Trademarks identical with or similar to the State name of the People's Republic of China" as provided in Article 10.1.1 of the "Trademark Law", refers to trademarks that are identical with or similar to the State name as a whole.

With regard to signs that contain the State name of the People's Republic of China, but are NOT identical with or similar to the State name as a whole, if the registration of such sign as a trademark may be detrimental to the national dignity, the Court may determine that such sign fall under the circumstances as provided in Article 10.1.8 of the "Trademark Law".

Article 4

With regard to those signs or the signs whose components that are deceptive and are likely to mislead the public to misidentify the quality or other characteristics or place of origin of the goods, the Court shall uphold decisions of the TRAB if the said decisions were based on the findings that it falls under the circumstances as provided in Article 10.1.7 of the 2001 version of the "Trademark Law".

Article 5

With regard to those signs or the signs whose components that may have negative or adverse effects on China's public interests or order, the Court may determine that such signs fall under the category of signs "having other unhealthy influences" as provided in Article 10.1.8 of the "Trademark Law".

Where the name of a public figure in the political, economic, cultural, religious, ethnic or other field is filed to be registered as a trademark, the Court shall find such action constitute "other unhealthy influences" as provided in the preceding paragraph.

Article 6

With regard to those signs that are the combination of geographical names as administrative divisions at or above the county level or the foreign geographical names well-known to the public and other elements, if the sign as a whole has the meaning that could distinguish it from geographical name, the Court shall determine that it does not fall under the circumstance as provided in Article 10.2 of the "Trademark Law".

Article 7

The Court finding on the distinctiveness of a litigious trademark shall be made based on the common perception of the relevant public of the goods on which such mark is designated to be used, by taking the said trademark into consideration as a whole. Where the descriptive component of a sign does not affect its distinctiveness as a whole, or a descriptive sign is displayed in a specific manner so as to serve as a source identifier of the goods to which it is attached by the relevant public, the Court shall find such sign distinctive.

Article 8

The Court shall base its distinctiveness finding over a litigious trademark in foreign language on the common perception of the relevant public within Chinese territory. Where the inherent meaning of the litigious mark in the said foreign language may affect its distinctiveness on designated goods, but the relevant public is hardly aware of that meaning so that the mark could still function as a source identifier of the goods to which it is attached, the Court may find it distinctive.

Article 9

Where an application is filed to register the shape or partial shape of a product as a three-dimensional trademark, if under most circumstances, the relevant public is not likely to take such sign as a source identifier of the goods to which it is attached, such sign should be found non-distinctive as a trademark.

The fact that a three-dimensional sign has been originally created by or firstly used by the applicant shall not necessarily be admitted as proof of distinctiveness of such sign.

Whereas an inherently non-distinctive sign as mentioned in the first paragraph has become, through long-term or extensive use, source identifier of the goods to which it is attached by the relevant public, the Court may recognised such sign as distinctive.

Article 10

With regard to those litigious trademarks that are statutory or customary name of the goods to which it is attached, the Court shall find that it constitute the generic name as provided in Article 11.1.1 of the "Trademark Law". Where, in accordance with laws, regulations, national or industry standards, a litigious mark is categorized as the generic name of the goods to which it is attached, the Court shall determine that mark as generic name. A specific name that is commonly perceived by the relevant public as the name of a category of goods, shall be ruled as customary generic name. The fact that a name has been classified as name of certain goods by professional reference books, dictionary, etcetera, may serve as the point of reference for the findings that said name has become the customary generic name of such goods.

In general, common perception of the relevant public nationwide shall be benchmarked in determination of the customary generic name of certain goods. The name being generally used to refer to those goods in its fixed relevant market due to historical tradition, local customs and practices, geographical environment or other reasons, may be ruled by the Court as generic name.

Where the applicant of a litigious trademark definitely knows or should have known that his applied trademark has become the customary name of certain goods within some areas, the Court may find such mark as generic name of such goods.

In general, the Court shall base its finding of generic name on the de facto status at the time of the application date of the litigious trademark. Where the de facto status has changed at the time when litigious trademark is approved for registration, the Court finding shall be based on the de facto status at the time of registration.

Article 11

With regard to those signs that merely or mainly describes or demonstrates the quality, major raw materials, function, usage, weight, quantity, origin or other features of the goods in respect of which the trademark is used, the Court shall find that it falls under the circumstances as provided in Article 11.1.2 of the "Trademark Law". Those signs or the signs whose components insinuating the features of the goods in respect of which the trademark is used, but does not affect its identifying function, shall be excluded from the circumstances as provided in this article.

Article 12

Where a party concerned requests the disapproval of the registration of a litigious trademark or the invalidation of a litigious registered trademark based on Article 13.2 of the "Trademark Law" by claiming that such trademark is a duplication, imitation or translation of its unregistered well-known trademark, the Court shall determine whether the registration of such trademark is likely to cause confusion by taking into consideration the factors listed below and the interplays among them:

 The extent of similarity of the trademarks;

  1. The extent of similarity of the goods on which the trademarks are designated to be used;
  2. The extent of distinctiveness and reputation of the trademark that requests protection;
  3. The degree of attention of the relevant public; and
  4. Other pertinent factors.

 The intention of the trademark applicant and the evidence of actual confusion may also be taken into consideration when determining the likelihood of confusion.

Article 13

Where a party concerned requests the disapproval of the registration of a litigious trademark or the invalidation of a litigious registered trademark based on Article 13.3 of the "Trademark Law" by claiming that such trademark is a duplication, imitation or translation of its registered well-known trademark, the Court shall determine whether the use of such trademark would lead the relevant public to construe that there is certain level of association between the litigious mark and the well-known trademark so as to mislead the public and harm the interests of the well-known trademark owner, by taking into consideration the factors listed below:

 The distinctiveness and extent of reputation of the Cited trademark;

  1. Whether the trademarks are sufficiently similar;
  2. The goods on which the trademarks are designated to be used;
  3. The extent of overlapping of the relevant public and the degree of attention thereof;
  4. Signs similar to the Cited trademark that are legitimately used by other market entities or other pertinent factors.

Article 14

Where a party concerned requests the disapproval of the registration of a litigious trademark or the invalidation of a litigious registered trademark based on the grounds that such trademark is a duplication, imitation or translation of his registered well-known trademark, and the TRAB adjudicates to uphold such claim based on the provisions of Article 30 of the "Trademark Law", the Court, after hearing the statements of all parties, may 1) apply Article 30 of the "Trademark Law" if the litigious trademark has been registered less than 5 years; or 2) apply Article 13.3 of the "Trademark Law" if the litigious trademark has been registered for more than 5 years.

Article 15

Where a trademark agent, representative or a dealer, intermediary, or other agent, representative in the sense of sales agency relations, applies, without authorization, for the registration of a trademark identical with or similar to that of the party being represented, on the same or similar goods, the Court shall apply Article 15.1 of the "Trademark Law".

If during the stage of negotiation relating to the conclusion of an agency or representative relation, the agent or representative as provided in the preceding paragraph applies for the registration of the trademark of the party being represented, the Court shall apply Article 15.1 of the "Trademark Law".

Where a trademark applicant is kin to or has a specific personal status relationship with the agent or representative, based on which his trademark application action could be presumed to be the result of bad faith colluding with such agent or representative, the Court shall apply Article 15.1 of the "Trademark Law".

Article 16

The circumstances below may be recognised as falling under "other relations" as provided in Article 15.2 of the "Trademark Law".

 The trademark applicant is kin to the prior user;

  1. The trademark applicant has labour relations with the prior user;
  2. The trademark applicant is in the proximity of the prior user's business location;
  3. The trademark applicant and the prior user have negotiated for the conclusion of an agency or representative relation but such relation has not been concluded;
  4. The trademark applicant and the prior user have negotiated for the conclusion of contractual or business relation but such relation has not been concluded.

Article 17

Where the interested party of a geographic indication (GI) requests the disapproval of the registration of other's trademark or the invalidation of other's registered trademark based on Article 16 of the "Trademark Law", if the goods designated by the litigious trademark and by the GI are not identical, yet the interested party can still prove that the litigious trademark when being used on its designated goods may still mislead the public to believe that such goods originate from the place indicated by the GI, and thus has its specific quality, prestige or other features, the Court shall uphold such claim.

If such GI has been registered as a collective trademark or certification trademark, its owner or interested party thereof may claim protection of its right based on this Article, or Article 13 and Article 30 of the "Trademark Law".

Article 18

The prior rights as provided in Article 32 of the "Trademark Law" include the civil rights the party concerned enjoys before the application date of the litigious trademark or other legitimate rights and interests that should be protected. The prior right that has ceased to exist when the litigious trademark is approved for registration shall not affect its registration.

Article 19

Where the party concerned claims that the litigious trademark infringes his prior copyright, the Court shall examine in accordance with the provisions of the "Copyright Law": 1) whether the prior right claimed by the party concerned constitutes a work protected by copyright, 2) whether the party concerned is the copyright owner or an interested party eligible to claim prior copyright, and 3) whether the litigious trademark would infringe the copyright of the party concerned.

With respect to the signs that constitute copyrighted works, the design manuscript, original copy, contract vouchering the acquisition of rights, copyright registration certification prior to the application date of the litigious trademark, or other proof adduced by the party concerned that is pertinent to the said signs, may be allowed as preliminary evidence to prove the ownership over the copyright of the work.

Trademark gazettes and trademark registration certificates may be allowed as preliminary evidence to prove that the trademark applicant is entitled to claim his rights, as an interested party, over the copyright of the sign involved.

Article 20

Where a party concerned claims that the litigious trademark infringes his name right, if the relevant public believes that such trademark refers to this natural person and tends to believe that the goods to which such trademark is attached are authorized by or have certain association with such person, the Court may determine that the litigious trademark infringes the name right of this person.

Where a party concerned requests the protection of his right over his pseudonym, stage name, translation name, or other specific name, if such specific name has a certain reputation and has established a stable corresponding relation with the natural person so that the relevant public use such name to refer to that person, the Court shall uphold such claim.

Article 21

Where a trademark filed without authorization, is identical with or similar to the trade name of a party concerned that has certain reputation in the market, so that it is likely to cause confusion among the relevant public over the source of the goods, and the party concerned claims prior right based on this, the Court shall uphold such claim.

Where a party concerned bases his claim on the abbreviated form of his business name that has certain reputation in the market and has established stable corresponding relation with his business, the preceding paragraph shall apply.

Article 22

Where a party concerned claims that the litigious trademark infringes his copyright over a character image, the Court shall examine in accordance with Article 19 in the Provisions.

With respect to those works within copyright terms, if the title of a work or the name of a character in the work enjoys a high reputation, and its use as a trademark in respect of relevant goods is likely to mislead the relevant public to believe that such goods are authorized by or have certain associations with the copyright owner of the work, and the party concerned claims prior right based on this, the Court shall uphold such claim.

Article 23

Where a prior user claims that a trademark applicant filed an application for the pre-emptive registration by unfair means for a trademark which has been prior used by this party and has gained certain influence, if the Court finds that the prior used trademark has a certain influence and the said applicant definitely knows or should have known this prior trademark, the registration action may be presumed to constitute "pre-emptive registration by unfair means", unless the said applicant adduces evidence to prove that he has no bad faith in exploiting the business reputation of the prior used trademark.

Where a prior user adduces evidence to prove that the prior trademark has been continuously used for a certain period of time, or has certain geographical coverage, sales volume or advertisement, the Court may determine that such trademark has certain influence.

Where a prior user claims that a trademark applicant's action is in violation of the provisions of Article 32 of the "Trademark Law" because the trademark applied in respect of goods dissimilar to those designated by his prior used trademark with a certain influence, the Court shall not uphold such claim.

Article 24

With respect to those who disrupt the trademark registration order, harm the public interests, improperly exploit public resources or make illicit gains by using means other than fraud, the Court may determine that it falls under the "other unfair means" as provided in Article 44.1 of the "Trademark Law".

Article 25

The Court, when ruling whether the litigious trademark applicant registers other's well-known trademark in bad faith, shall determine the intent of the litigious trademark applicant by taking into account the reputation of the cited trademark, the applicant's reasons for filing the litigious trademark registration as well as the status of use of the litigious trademark. Where the cited trademark has a high reputation and the applicant has no proper cause to justify his application of the litigious trademark, the Court may presume that such registration constitutes "bad faith registration" as provided in Article 45.1 of the "Trademark Law".

Article 26

The use of a trademark either by its owner or by a licensee, or those trademark use that does not go against the will of its owner may be categorized as trademark use as provided in Article 49.2 of the "Trademark Law".

Where the mark that is actually being used has subtle difference(s) from the registered trademark, as long as the distinctive features of that trademark are not altered, such use may be deemed as use of the said registered trademark.

Where a registered trademark has not been put in actual use, the mere assignment or licensing act of such registered trademark, the publication of the trademark registration information or a declaration made to claim the exclusive right over such registered trademark does not qualify as trademark use.

Where the trademark owner has the real intention to use his trademark and has made necessary preparation for such use, but has not put such registered trademark into actual use due to objective causes, the Court may determine that the owner has a just cause.

Article 27

Where a party concerned claims that the TRAB has committed one of the acts mentioned below so as to "violate legal procedure" as provided in Article 70.3 of the "Administrative Procedure Law", the Court shall uphold its claim:

 Where the TRAB misses the argument raised by the party concerned, which may have substantial influence on his rights;

  1. Where the TRAB fails to notify the party concerned or the interested party the composition of the collegial panel, and due to such failure, certain member of the panel did not recuse himself/herself from the procedure, which the Court confirms;
  2. Where the TRAB fails to inform the competent party to join the review and adjudicating procedure, and such party raises objection to the TRAB;
  3. Other circumstances that violate the statutory procedure.

Article 28

Where during the Court's hearing of the trademark administrative case, the cause based on which the TRAB's decision on refusal of litigious trademark application, disapproval of litigious trademark registration or invalidation declaration of the litigious trademark no longer exists, the Court may revoke the TRAB's decision on the basis of new facts and order the TRAB to re-make its decision according to the changed facts.

Article 29

Where a party concerned files another application for review and adjudication based on new evidence discovered after the previous administrative act, or based on evidence that due to objective causes, was either unattainable during the previous administrative proceeding or was impossible to be produced during the prescribed time limit, or where such party files its application based on new legal grounds, this circumstance shall not be deemed as filing another application for review and adjudication on the basis of "the same facts and grounds".

During the review on trademark refusal procedure, where the TRAB finds that the applied trademark and the cited trademark do not constitute identical or similar trademark used on the same or similar goods and approves the preliminary publication of the applied trademark, the circumstances below shall not be deemed as filing another application for review and adjudication on the basis of "the same facts and grounds":

  1. Where the Trademark Office upholds an opposition filed by the owner of a cited trademark, or an interested party, and the opposed party applies for a review;
  2. Where an opposed trademark has been approved for registration and the owner of the cited trademark, or interested party, files an invalidation application.

Article 30

Where an administrative counterpart or an interested party brings an appeal against a decision of the TRAB that is based on an effective judgment of the Court in which the Court has made clear determination on the relevant facts and application of laws, the Court shall reject such appeal according to law, or dismiss the appeal in the event that the case has been put on docket.

Article 31

The Provisions shall come into force as of March 1, 2017. Court may refer to the Provisions when hearing the administrative cases involving the granting and affirmation of trademark rights in accordance with the 2001 version of the "Trademark Law".

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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