China: Provisions Of The Supreme People's Court On Several Issues Concerning The Trial Of Administrative Cases involving Trademark Authorization And Confirmation [Effective]

Announcement of the Supreme People's Court

The Provisions of the Supreme People's Court on Several Issues concerning the Trial of Administrative Cases involving Trademark Authorization and Confirmation, as adopted at the 1,703rd Session of the Judicial Committee of the Supreme People's Court on December 12, 2016, are hereby issued and shall come into force on March 1, 2017.

Supreme People's Court

January 10, 2017

Provisions of the Supreme People's Court on Several Issues concerning the Trial of Administrative Cases involving Trademark Authorization and Confirmation

(Interpretation No. 2 [2017] of the Supreme People's Court, adopted at the 1,703rd Session of the Judicial Committee of the Supreme People's Court on December 12, 2016 and coming into force on March 1, 2017)

For the correct trial of administrative cases involving trademark authorization and confirmation, these Provisions are developed in accordance with the provisions of the Trademark Law of the People's Republic of China, the Administrative Litigation Law of the People's Republic of China and other laws and in consideration of the trial practice.

Article 1 For the purpose of these Provisions, "administrative cases involving trademark authorization and confirmation" means the cases filed with the people's courts by counter parties or interested parties against review of rejection of trademark registration applications, review of disapproval of trademark registration, review of cancellation of trademarks, declaration of invalidation of trademarks and review of declaration of invalidation and other administrative acts made by the Trademark Appeal Board of the administrative department for industry and commerce under the State Council (hereinafter referred to as the "Trademark Appeal Board").

Article 2 The scope of examining the administrative behaviors of trademark authorization and confirmation by the people's courts shall generally be determined according to the claims and grounds of plaintiffs. Where a plaintiff does not make any claim in the litigation, but the relevant identification of the Trademark Appeal Board has obvious inappropriateness, the people's court may review the relevant matters and render a judgment after all parties state their opinions.

Article 3 "Identical with or similar to" the name and other items of the People's Republic of China as prescribed in item (1), paragraph 1, Article 10 of the Trademark Law means that a trademark sign is identical with or similar to the name of the state as a whole.

Where a sign that contains the name of the People's Republic of China and is not identical therewith or similar thereto as a whole may damage state dignity if it is registered as a trademark, the people's court may determine that it falls under the circumstance as prescribed in item (8), paragraph 1, Article 10 of the Trademark Law.

Article 4 Where a trademark sign or its constituent elements are deceptive and easily make the public misunderstand the quality and other characteristics or the origin of the goods and the Trademark Appeal Board identifies that it falls under the circumstance as prescribed in item (7), paragraph 1, Article 10 of the Trademark Law, the people's court shall grant support thereto.

Article 5 Where a trademark sign or its constituent elements may cause passive and negative effect on the social and public interests and public order of China, the people's court may determine that it falls under the circumstance of "having other adverse effect" as prescribed in item (8), paragraph 1, Article 10 of the Trademark Law.

Applying for registration of a name of a public figure in the political, economic, cultural, religious, ethnic and other areas as a trademark falls under the circumstance of "having other adverse effect" as prescribed in the preceding paragraph.

Article 6 Where a trademark mark is composed of a place name a administrative division at or above the county level or another foreign place name known to the public and has a meaning different from the place name as a whole, the people's court shall determine that it does not fall under the circumstance as specified in paragraph 2, Article 10 of the Trademark Law.

Article 7 When examining whether a trademark has a distinctive feature, the people's court shall, according to the general knowledge of the relevant public using the commodity designated to use trademark, judge whether the trademark has any distinctive feature as a whole. A trademark sign that contains descriptive elements but does not affect its distinctive feature as a whole or a descriptive sign that is expressed in a unique way and whose source of goods may be identified by the relevant public shall be determined to have distinctive feature.

Article 8 When a disputed trademark is a sign in foreign language, the people's court shall, according to the general knowledge of the relevant public within the territory of China, examine and judge whether the trademark in foreign language has distinctive feature. Where the inherent meaning of a sign in both Chinese and foreign language may affect its distinctive feature on the commodity designated to use the trademark and the relevant public has relatively low degree of awareness of the inherent meaning and is able to identify the source of goods with the sign, it may be identified that it has distinctive feature.

Article 9 Where an application is filed for the registration of a trademark with the shape or a part of the shape of a commodity as a three-dimensional sign and it is difficult for the relevant public to recognize it as a sign indicating the source of the commodity under general circumstance, the three-dimensional sign has no distinctive feature as a trademark.

The shape is independently created or firstly used by the applicant, and does not surely make it have the distinctive feature as a trademark.

Where a sign referred to in the first paragraph is used for a long period of time or is widely used, the relevant public is able to identify the source of the commodity through the sign, it may be recognized that the sign has distinctive feature.

Article 10 Where a disputed trademark is a legal commodity name or a commodity name established by usage, the people's court shall determine it as a common name specified in item (1), paragraph 1, Article 11 of the Trademark Law. A trademark that is a common name of a commodity under the provisions of the law or the national standards and industry standards shall be recognized as a common name. Where relevant public generally believes that a certain name is able to r efer to a category of goods, it shall be recognized as a common name "established by usage." A trademark that is listed as a commodity name by professional reference books, dictionaries and other items may be used as reference for recognizing the common name established by usage.

Common names established by usage shall generally be judged according to the common understanding of the relevant public across the country. A title of a fixed commodity on relevant market formed due to historical traditions, customs, geographical environment and other reasons that is commonly used on the relevant market may be recognized as a common name by the people's court.

Where a disputed trademark applicant knows perfectly well or should know that the trademark applied to be registered is the name of a commodity established by usage in some regions, the people's court may regard the trademark applied to be registered as a common name.

The people's court shall examine and judge whether a disputed trademark is a common name generally according to the de facto status on the date when an application is filed for the trademark. Where the de facto status changes when the registration is approved, whether it is a common name shall be judged according to the de facto status when the registration is approved.

Article 11 Where a trademark sign only or mainly describes and explains the quality, main raw materials, function, purpose, weight, quantity, origin and other items of the commodity, the people's court shall determine that it falls under the circumstance as prescribed in item (2), paragraph 1, Article 11 of the Trademark Law. Where a trademark sign or its constituent elements imply the characteristics of the commodity, but do not affect its function of identifying the source of the commodity, it does not fall under the circumstance as prescribed in this item.

Article 12 Where a party claims that a disputed trademark constitutes reproduction, imitation or translation of a famous trademark not registered and should not be registered or should be invalidated according to paragraph 2, Article 13 of the Trademark Law, the people's court shall give comprehensive consideration to the following factors and the mutual impact of the factors, and determine whether it easily causes confusion:

  1. the degree of approximation of the trademark sign;
  2. the similarity of the commodity;
  3. the distinctiveness and popularity of the trademark requested to be protected;
  4. the degree of attention of relevant public; and
  5. other relevant factors.

The subjective intent of the trademark applicant and the evidence of actual confusion may be used as a reference factor for determining the possibility of confusion.

Article 13 Where a party claims that a disputed trademark constitutes reproduction, imitation or translation of a famous trademark registered and should not be registered or should be invalidated according to paragraph 3, Article 13 of the Trademark Law, the people's court shall give comprehensive consideration to the following factors, to determine whether the use of a disputed trademark is sufficient to make the relevant public to believe that there is a considerable degree of connection with the famous trademark, thereby misleading the public and resulting in possible harm to the interests of the registrant of the famous trademark:

  1. the distinctiveness and popularity of the reference trademark;
  2. whether a trademark sign is sufficiently similar;
  3. the information on the commodity designated to use the trademark;
  4. the degree of coincidence and attention of relevant public; and
  5. the information on the lawful use of a sign similar to the reference trademark by other market participants or other relevant factors.

Article 14 Where a party claims that a disputed trademark constitutes reproduction, imitation or translation of a famous trademark registered and should not be registered or should be invalidated, and the Trademark Appeal Board upholds its support under the provisions of Article 30 of the Trademark Law, if the disputed trademark has been registered for less than 5 years, the people's court may, after the party state the opinions, try the case under the provisions of Article 30 of the Trademark Law; and if the disputed trademark has been registered for more than 5 years, the people's court shall try the case under paragraph 3, Article 13 of the Trademark Law.

Article 15 Where a trademark agent, representative or distributor, agent and other agents and representatives in the sense of sales agency relation applies for registration of a trademark identical with or similar to the trademark of the principal or represented party on a identical or similar commodity in its own name without authorization, the people's court shall try the case under the provisions of paragraph 1, Article 15 of the Trademark Law.

Where, at the stage of consultation for the establishment of an agent or representative relationship, the agent or representative specified in the preceding paragraph applies for registration of a trademark of a principal or represented party, the people's court shall try the case under the provisions of paragraph 1, Article 15 of the Trademark Law.

Where there is kinship and other specific identity relationships between a trademark applicant and an agent or a representative, it may be presumed that its behavior of trademark registration is maliciously colluded with the agent or representative, and the people's court shall try the case under the provisions of paragraph 1, Article 15 of the Trademark Law.

Article 16 The following circumstances may be recognized as "other relations" as prescribed in paragraph 2, Article 15 of the Trademark Law:

  1. The trademark applicant has kinship with the prior user.
  2. The trademark applicant has labor relation with the prior user.
  3. The trademark applicant has a business address adjacent to that of the prior user.
  4. The trademark applicant has negotiated with the prior user on reaching agent and representative relations, but agent or representative relation has not been formed.
  5. The trademark applicant has negotiated with the prior user on reaching contract and business relations, but contract or business relation has not been formed.

Article 17 Where an interested party of a geographical indication claims that another's trademark shall not be registered or shall be invalidated in accordance with Article 16 of the Trademark Law, if the commodity designated to use the disputed trademark is not identical with the geographical indication product, the interested party of the geographical indication may prove that the disputed trademark is used on the product and is still likely to make the relevant public to mistakenly believe that the product is derived from the region and therefore has specific quality, reputation or other characteristics, the people's court shall grant support thereto.

If the geographical indication has been registered as a collective trademark or a certified trademark, the right owner or the interested party of the collective trademark or certified trademark may choose to claim rights in accordance with the article or otherwise under Article 13 and Article 30 of the Trademark Law.

Article 18 The prior rights as prescribed in Article 32 of the Trademark Law include the civil rights or other lawful rights and interests to be protected as enjoyed by the parties before the date when an application for the disputed trademark is filed. Where the prior rights no longer exist when a disputed trademark is approved to be registered, the registration of the disputed trademark shall not be affected.

Article 19 Where a party claims that a disputed trademark damages its prior copyright, the people's court shall, under the Copyright Law and other relevant provisions, examine whether the subject claimed constitutes a production, whether the party is a copyright owner, or whether another interested party having the right to claim for copyright and the disputed trademark infringe upon the copyright.

Where a trademark sigh constitutes a work protected by the Copyright Law, the design manuscript, original copy, contract on rights obtaining, copyright registration certificate before the date of filing an application for claiming for a trademark, and other documents may be used as the preliminary evidence for proving the ownership of copyright.

Trademark announcement, trademark registration certificate and other items may be used as preliminary evidence for determining that the trademark applicant is an interested party with the right to claim for the copyright of the trademark sign.

Article 20 Where a party claims that a disputed trademark damages its right of name, if the relevant public believes that the trademark sign refers to the natural person, and it is easy to believe that a commodity with the trademark has obtained the permission of the natural person or has specific relation with the natural person, the people's court shall determine that the trademark has damaged the right of name of the natural person.

Where a party claims for the right of name with its pseudonym, stage name, translated name and other specific names, the specific name has certain reputation, the party has established stable correspondence with the natural person, and relevant public refers to the natural person with the name, the people's court shall grant support thereto.

Article 21 Where the title claimed by a party has certain market reputation, another person applies for registration of a trademark identical with or similar to the title without permission, it easily makes relevant public to have confusion on the source of the commodity, and the party therefor constitutes prior rights and interests, the people's court shall grant support thereto. Where a party files a claim on the basis of the short name of an enterprise that has a certain market reputation and has established stable correspondence with the enterprise, the preceding paragraph shall apply.

Article 22 Where a party claims that a disputed trademark damages the copyright of the role image, the people's court shall conduct examination in accordance with Article 19 of these Provisions.

For a work with copyright protection period, if the name of the work and the name of the r ole in the work have relatively high reputation, use of the name as a trademark in a relevant commodity easily makes the relevant public mistakenly believes that permission of the right owner has been obtained or there is specific contact with the right owner, and the party claims that it has prior rights and interests, the people's court shall grant support thereto.

Article 23 Where a prior user claims that a trademark applicant preemptively registers a trademark that is primarily used by it and has certain influence by illicit means, if the trademark primarily used has had certain influence, and the trademark applicant knows or should have known the trademark, it may be presumed that it constitutes "preemptive registration by illicit means," except the trademark applicant proves that it did not maliciously use the goodwill of the trademark.

A prior user proves that its prior trademark has certain period of continuous use, region, sales volume or advertising, the people's court may determine that it has certain influence.

Where a prior user claims that a trademark applicant applies for registration of a trademark that is primarily used by it and has certain influence on a commodity not similar thereto and violates the provisions of Article 32 of the Trademark Law, the people's court shall not grant support thereto.

Article 24 Where a party disrupts the order of trademark registration, damages public interests, illegally occupies public resources or seeks illicit interests by means other than deceit, the people's court may determine that it belongs to "other illicit means" as prescribed in paragraph 1, Article 44 of the Trademark Law.

Article 25 When judging whether a disputed trademark applicant has "maliciously registered" a famous trademark of another party, the people's court shall give comprehensive considerations to the popularity of the reference trademark, the grounds of the disputed trademark applicant for applying for the disputed trademark, and the specific circumstance of using the disputed trademark, to determine its subjective intent. Where a reference trademark has high popularity and a disputed trademark applicant has no justified reason, the people's court may presume that its registration constitutes "malicious registration" as specified in paragraph 1, Article 45 of the Trademark Law.

Article 26 Independent use by a trademark owner, user by another party with permission and other use without violating the will of the trademark owner may be recognized as the use as specified in paragraph 2, Article 49 of the Trademark Law.

Where a trademark sign actually used is slightly different from the trademark sign approved to be registered, but does not change its distinctive feature, it may be deemed use of a registered trademark.

Only transfer or licensing without actual use of a registered trademark or only announcement of the information on trademark registration and statement of enjoying the exclusive right to use the registered trademark shall not be registered as use of a trademark.

Where a trademark owner has the real intention to use a trademark and has made necessary preparations for the actual use, but a registered trademark has not been actually used for other objective reasons, the people's court may determine that it has justified reason.

Article 27 Where a party clams that the following circumstances of the Trademark Appeal Board fall under the circumstances of "violating the legal procedures" as prescribed in item (3), Article 70 of the Administrative Litigation Law, the people's court shall grant support thereto:

  1. The review reasons put forward by the party are omitted, which causes real impact on the rights of the party.
  2. A member of the collegial panel is not informed of the review procedures and there is matters that should have been evaded but have not been evaded upon examination.
  3. Competent party is not notified of participating in the examination and the party expressly raises an objection.
  4. Other circumstances in violation of the legal procedures.

Article 28 Where during the process that a people's court tries an administrative case involving trademark authorization and confirmation, the causes for the Trademark Appeal Board to reject a disputed trademark, disapprove its registration or announce its invalidation no longer exist, the people's court may, on the basis of the new facts, revoke the relevant judgment of the Trademark Appeal Board and order the said Board to render a new judgment according to the changed facts.

Article 29 A review application filed by a party on the basis of the newly found evidence after the original administrative behavior, evidence unable to be obtained during the original administrative procedures due to objective reasons or unable to be provided within the prescribed time limit, or new legal basis is not a review application re-filed on the basis of the "same facts and grounds."

During the procedure of review of rejection of a trademark registration application, after the Trademark Appeal Board preliminarily approves and publishes the trademark applied on the ground that the trademark applied and the reference trademark do not constitute identical or similar trademark used on a same or similar commodity, the following circumstances shall not be deemed re-filing of review application on the "same facts and grounds:"

  1. A reference trademark owner or interested party raises an objection according to the reference trademark, the Trademark Office of the administrative department for industry and commerce under the State Council grants support thereto, and the trademark applicant against which an objection is raised applies for review.
  2. A reference trademark owner or interested party announces it to be invalidated according to the application for the reference trademark after a trademark applied is approved to be registered.

Article 30 Where a people's court has specifically determined the relevant facts and the application of laws in an effective ruling, a counter party or an inter ested party institutes a lawsuit against a ruling re-rendered by the Trademark Appeal Board according to the effective ruling, the people's court shall issue a ruling not to accept the case; and where a case has been accepted, the people's court shall rule to dismiss the lawsuit.

Article 31 These Provisions shall come into force on March 1, 2017. These Provisions may apply, mutatis mutandis, to the administrative cases involving trademark authorization and confirmation tried by the people's courts according to the Trademark Law amended in 2001.

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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