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The State Administration for Industry and Commerce
Order of the State Administration for Industry and Commerce of the People’s Republic of China
No.3
The Rules for Trademark Review and Adjudication promulgated by Order No.37 of the former State Administration for Industry and Commerce
were revised in accordance with the Trademark Law of the People’s Republic of China, which took effect on December 1, 2001, and the
regulations for implementation thereof, the revised Rules were adopted at the executive meeting of the State Administration for Industry
and Commerce on September 17, 2002 and are hereby promulgated, and shall come into force on October 17, 2002.
Director of the State Administration for Industry and Commerce Wang Zhongfu
September 17, 2002
Rules for Trademark Review and Adjudication
Chapter I General Rules
Article 1
These Rules are formulated in accordance with the Trademark Law of the People’s Republic of China (hereinafter referred to as the
Trademark Law) and the Regulations for the Implementation of the Trademark Law of the People’s Republic of China (hereinafter referred
to as the Implementation Regulations).
Article 2
According to the Trademark Law and the Implementation Regulations, the Trademark Review and Adjudication Board of the State Administration
for Industry and Commerce (hereinafter referred to as the Board) shall be in charge of the following cases concerning trademark disputes:
1)
The case in which a party refuses to accept the decision of the Trademark Office of the State Administration for Industry and Commerce
(hereinafter referred to as the Trademark Office) on dismissing the application for trademark registration and applies for re-examination
pursuant to Article 32 of the Trademark Law;
2)
The case in which a party refuses to accept the ruling of the Trademark Office concerning objection and applies for re-examination
pursuant to Article 33 of the Trademark Law;
3)
The case in which a party requests the ruling on cancellation of a registered trademark pursuant to Article 41 of the Trademark Law;
4)
The case in which a party refuses to accept the decision made by the Trademark Office, pursuant to Paragraph 1 of Article 41 , Article
44 or Article 45 of the Trademark Law, on cancellation of a registered trademark and applies for re-examination pursuant to Article
49 of the Trademark Law.
Article 3
Where a party participates in the review and adjudication (hereinafter referred to as review) of cases concerning trademark disputes,
it shall handle the process by written form.
Article 4
In the review of cases concerning trademark disputes, the Board shall take facts as the basis and the law as criterion.
Article 5
In the review of cases concerning trademark disputes, the Board shall treat the parties impartially with respect to the application
of law.
Article 6
The Board shall review the cases concerning trademark disputes by examining the records, with the exception of the situations for
which public review shall be held pursuant to Article 33 of the Implementation Regulations.
Article 7
The decisions and rulings made by the Board pursuant to the Trademark Law, the Implementation Regulations and the present Rules shall
be notified to the parties concerned by written form and the reasons shall be explained.
Article 8
Except that there are otherwise provisions in the present Rules, the Board shall apply the collegial system in the review of cases
concerning trademark disputes, and shall form collegial panels of trademark reviewing officers to review the cases.
Collegial panels shall apply the principle of “the minority is subordinate to the majority” in the review of cases.
Article 9
According to Article 9 of the Implementation Regulations, a trademark reviewing officer involved in any of the following situations
shall withdraw, and the parties or interested persons may apply for the withdrawal of that officer:
1)
Being a party or the close relative of a party or agent of the case under review;
2)
Having other relations with a party or agent that may affect the justice of review;
3)
Having interest relations with the trademark review matters.
Where a party or interest person applies for the withdrawal of a trademark reviewing officer, it shall do so by written form and explain
the reasons.
Article 10
During the trademark review, a party shall, pursuant to law, have the right to dispose of his own trademark right and the rights related
to the trademark review.
Article 11
Where the co-owners of a trademark participate in the trademark review, they shall designate one person as the representative; if
no representative has been designated, the trademark owner listed first on the application form for trademark registration or on
the trademark registration book shall be the representative. The act of the representative participating in the review shall be binding
on the parties represented by him, however, to alter or abandon the claims of review or to admit the claims of the opposing party,
the representative must have the written authorization of the parties represented by him.
Article 12
Where foreigners or foreign enterprises handle the trademark review matters, those having regular residence or business places in
China may entrust the organizations with the qualification for trademark agency approved by the state to handle the process or directly
handle the process by themselves; those without regular residence or business places in China shall entrust the organizations with
the qualification for trademark agency approved by the state to handle the process.
Article 13
A party shall submit the trust deed if it entrusts an organization of trademark agency to participate in the trademark review. The
trust deed shall indicate the contents of and authorization to the agency; and the trust deed of a foreigner or foreign enterprise
shall also indicate the nationality of the trustor.
The trust deed of a foreigner or foreign enterprise and the notarization and certification procedures of the relevant certifications
shall be processed pursuant to the principle of reciprocity.
The foreigner or foreign enterprise applying for or participating in the trademark review shall use Chinese; and there shall be Chinese
translations attached to the documents in foreign languages.
Article 14
Where the authorization to the agent is altered or the agency relation is dissolved, the parties shall inform the Board by written
form timely.
Article 15
The parties, interested persons and agents of a case may apply for consulting the relevant materials of that case, and may apply for
copying the relevant materials and legal documents of that case. The scope of and measures for consulting and copying the relevant
materials of the case shall be provided for by the Board.
Chapter II Application and Acceptance
Article 16
One shall meet the following conditions to apply for trademark review:
1)
The applicant shall be a legally qualified subject;
2)
The application shall be filed within the legal time limit;
3)
The application shall be within the scope of review of the Board;
4)
The applicant shall submit the application forms and the relevant evidences conforming to the provisions;
5)
The applicant shall have definite review claims, fact basis and reasons;
6)
The applicant shall pay the expenses of the review.
Article 17
To apply for trademark review, one shall submit the application forms to the Board; where there are parties against whom the application
is filed (hereinafter referred to as the defending party), the applicant shall submit counterparts according to the number of such
defending parties; where the applicant applies for re-examination on the basis of the decision or ruling of the Trademark Office,
it shall also submit the decision or ruling of the Trademark Office at the same time.
Article 18
An application form shall indicate the following matters:
1)
The name, domicile and post code of the applicant, if the applicant is a legal person or other organization, the name and post_title of
the legal representative or the principal shall be indicated;
2)
The name, the application number or preliminary examination number, the registration number of the disputed trademark, and the issue
number of the Trademark Announcement on which that trademark was published;
3)
Definite claims of trademark review, and the facts, reasons and legal grounds on which the claims are based;
4)
The name and contact telephone number of the contact person.
Where there is any defending party, the name and domicile of that party shall be indicated. Where an organization of trademark agency
is entrusted to handle the trademark review, the name, mail address, post code and contact telephone number of that organization
shall also be indicated.
Article 19
Where an application for trademark review fails to meet any of the conditions provided for in Items 1), 2) and 3) of Article 16 of
the present Rules, the Board shall dismiss that application, notify the applicant and explain the reasons.
Article 20
Where an application for trademark review fails to meet any of the conditions provided for in Items 4), 5) and 6) of the present Rules,
or the applicant fails to submit the relevant certifications pursuant to the Implementation Regulations or the present Rules, the
Board shall notify the applicant to correct or supplement the certifications within 30 days from the day of receipt of the notification.
If the corrected and supplemented documents still fail to meet the requirements of the provisions, the Board shall dismiss the application,
notify the applicant by written form and explain the reasons. If no correction or supplementation is made within the time limit,
it shall be deemed as that the applicant withdraws the application for trademark review pursuant to Article 30 of the Implementation
Regulations, and the Board shall notify the applicant by written form.
Article 21
If an application for trademark review meets the conditions for acceptance after examination, the Board shall circulate the Notification
of Acceptance to the applicant within 30 days.
Article 22
If an application that has already been accepted by the Board is in any of the following situations, it shall be dismissed pursuant
to Article 30 of the Implementation Regulations for failure to meet the conditions for acceptance:
1)
If an applicant, in violation of Article 42 of the Trademark Law, applies, on the basis of the same facts and reasons, for ruling
on a trademark, for which an objection has been raised before the approval for registration and for which a ruling has already been
made;
2)
If an applicant withdraws an application for trademark review and, in violation of Article 35 of the Implementation Regulations,
applies for trademark review again on the basis of the same facts and reasons;
3)
If an applicant, in violation of Article 35 of the Implementation Regulations, applies for review with respect to the ruling or decision
already made by the Board on the basis of the same facts and reasons;
4)
Other situations that fail to meet the conditions for acceptance.
In case of dismissal of an applicant for trademark review, the Board shall notify the applicant and explain the reasons by written
form.
Article 23
If an applicant needs to supplement the relevant evidence materials after filing the application forms, it shall declare in the application
forms and shall submit the same pieces of evidence materials as the application forms within 3 months from the day of submitting
the application form; if no declaration is made in the application forms or no supplementation is submitted within the time limit,
the supplementation shall be deemed as being abandoned.
Article 24
Where there are defending parties, the Board shall send the counterparts of the application forms and the relevant evidence materials
to these parties, and order them to submit the written pleadings to the Board within 30 days from receipt of the counterparts, and
submit the counterparts of the written pleadings according to the number of the applicants; the failure to submit the pleadings within
the time limit shall have no affection on the review by the Board.
Article 25
if a defending party needs to supplement the relevant evidence materials after submitting the written pleadings, it shall declare
in the written pleadings and submit the same pieces of evidence materials as the written pleadings within 3 months from submitting
the written pleadings; if it fails to declare in the written pleadings or fails to submit the supplementation within the time limit,
the supplementation of the relevant evidence materials shall be deemed as being abandoned.
Article 26
After receiving the written pleadings and evidence materials from the defending parties, the Board shall send the counterparts of
the written pleadings and the relevant evidence materials to the applicants.
Where an applicant has any contrary evidence against the written pleadings and the evidence materials provided by the defending parties,
it shall submit such contrary evidence once-off to the Board within 30 days from the day of receipt of the written pleadings and
the relevant evidence materials.
Article 27
When an applicant submits the application forms or a defending party submits the written pleadings, he shall at the same time submit
the valid certificate that can prove his identity. The name of the applicant or the defending party shall be identical with that
on the certificate submitted.
In case of alteration of the name or domicile of a party concerned, the relevant certifications shall be submitted.
Article 28
A party concerned shall classify and number the evidence materials submitted by him one by one, and make a list of them to brief the
sources of those evidence materials and the specific facts proved thereby, and shall sign and seal that list.
After receiving the evidence materials submitted by the parties, the Board shall verify the evidence materials according to the list
and the handling personnel shall sign in the list and the return receipt and indicate the date of submitting.
Article 29
The application forms for trademark review and the relevant evidence materials shall be filled in and provided pursuant to the prescribed
format and requirements. If an applicant fails to do so, the Board shall send a notification to the applicant ordering him to make
supplementation and correction within 30 days from the day of receipt of the notification. In case of failure to meet the provisions
after the supplementation and correction or failure to make the supplementation and correction within the time limit, Paragraph 2
of Article 20 of these Rules shall apply.
The written pleadings and the relevant evidence materials of trademark review shall be filled in and provided pursuant to the prescribed
format and requirements. If a defending party fails to do so, the Board shall send a notification to that party ordering him to make
supplementation and correction within 30 days from the day of receipt of the notification. Failure to meet the provisions after supplementation
and correction or failure to make the supplementation and correction within the time limit shall not affect the review by the Board.
Chapter III Trial
Article 30
The Board shall form a collegial panel to try the case concerning trademark review. The collegial panel shall be composed of 3 trademark
reviewing officers or of an odd number above 3. However, the case of which the facts are clear and simple may be tried by a single
trademark reviewing officer.
Article 31
A case involves any of the following circumstances may be tried by a single trademark reviewing officer:
1)
The trademark cited by the Trademark Office in the decision on dismissal or ruling concerning objection has lost the exclusive right
or the prior right;
2)
The trademark for which the ruling of cancellation is requested has lost the exclusive right;
3)
The trademark cited by the Trademark Office in the decision of dismissal belongs to the applicant, and the application is dismissed
because the applicant failed to go through the formalities for alteration timely, but at the time of the review, the applicant had
finished the formalities for alteration with the Trademark Office;
4)
The trademark, which was applied for or registered by others earlier, cited by the Trademark Office in the decision of dismissal has
been assigned to the applicant upon approval;
5)
Any other case which the Board decides to be tried by a single trademark reviewing officer.
Article 32
After the trademark reviewing officers have been determined, the Board shall promptly inform the parties concerned by written form.
Article 33
Where any party or interested person applies for the withdrawal of any trademark reviewing officer pursuant to Article 9 of the Implementation
Regulations or Article 9 of the present Rules, the application shall be filed within 15 days from the day on which he is informed
of the trademark reviewing officers. After that time limit, if a party or interested person finds that any trademark reviewing officer
shall withdraw, he may apply for the withdrawal before the decision or ruling of the review has been made, and shall provide the
relevant evidence.
The trademark reviewing officer against whom the application for withdrawal is filed shall suspend his work in the trial of the case
before the decision or ruling of the review has been made.
If the Board receives the application for withdrawal filed by a party or interested person after the decision or reward has been made,
the effectiveness of that decision or reward shall not be affected.
Article 34
With respect to the application for withdrawal filed by a party, the Board shall make the decision in written form within 7 days from
receipt of the application and shall notify the applicant by written form. If the applicant refuses to accept the non-withdrawal
decision made by the Board, he may apply for reconsideration within 3 days from receiving the decision. During the reconsideration,
the trademark reviewing officer against whom the application for withdrawal is filed shall not suspend his work in the trial of the
case. With respect to the application for reconsideration, the Board shall make the decision of the reconsideration within 3 days
and notify the applicant by written form.
Article 35
In the trial of a re-examination case in which a party refuses to accept the decision made by the Trademark Office on dismissing the
application for trademark registration, the Board shall review the case with the focus on the decision of the Trademark Office on
dismissal, the facts and reasons based on which the applicant applies for the reconsideration and the claims thereof, and the factual
situations of the review.
Article 36
In the trial of a re-examination case concerning the ruling of the Trademark Office concerning objection, the Board shall review the
case with the focus on the party’s application for re-examination, the facts, and reasons of the pleadings, and the claims.
Article 37
In the trial of a re-examination case in which a party refuses to accept the decision made by the Trademark Office, pursuant to Paragraph
1 of Article 41 of the Trademark Law, on cancellation of a registered trademark, the Board shall review the case with the focus
on the decision of the Trademark Office and the facts, reasons and claims of the applicant for re-examination.
In the trial of a re-examination case in which a party refuses to accept the decision made by the Trademark Office, pursuant to Articles
44, 45 of the Trademark Law, on cancellation of a registered trademark, the Board shall review the case with the focus on the facts
and reasons based on which the Trademark Office made the decision on cancellation of the trademark, and the application of law.
Article 38
In the trial of a case in which a party applies for the cancellation of a registered trademark pursuant to Article 41 of the Trademark
Law, the Board shall review the case with the focus on the application of the party, the facts and reasons of the pleadings, and
the claims.
Article 39
The review shall be terminated under any of the following circumstances:
1)
The applicant dies and there is no inheritor, or the inheritor abandons the right of review;
2)
The applicant withdraws the application for review;
3)
The parties concerned settled the dispute through agreement;
4)
Other circumstances under which the review shall be terminated.
In case of termination of the review, the Board shall conclude the case and notify the parties concerned by written form and explain
the reasons.
Article 40
If an applicant requests to withdraw the application before the Board makes the decision or ruling, it may do so after explaining
the reasons to the Board by written form. However, if the Board receives the application for withdrawing the application after the
decision or ruling has already been made, the effectiveness of the decision or award shall not be affected.
Article 41
The collegial panel shall make a record of review for the case it tried, and the panel members shall sign on the record. Where any
panel member has different opinions, such opinions shall be put in the record.
The Board shall make the decision or ruling for a concluded case pursuant to law.
Article 42
The written decision or ruling rendered by the Board shall indicate the following contents:
1)
Claims of review, facts and reasons of the dispute;
2)
Facts and reasons ascertained by the decision or ruling and the legal basis applied;
3)
Conclusion of the decision or ruling;
4)
Follow-up procedures available for the parties to select and the time limit thereof;
5)
Date of the making of decision or ruling.
The written decision or ruling shall be signed by the collegial panel members and bear the seal of the Board.
Article 43
With respect to a case in which a party refuses to accept the decision or ruling made by the Board and files an action with the people’s
court and which has been remanded for a new trial as judged by the people’s court, the Board shall form a new collegial panel to
review the case.
Article 44
If no party files an action with the people’s court against the decision or ruling made by the Board within the statutory time limit,
that decision or ruling shall take effect.
Chapter IV Public Review
Article 45
The board may, according to the request of a party or the actual needs, decide to hold a public review of the application.
Article 46
The party requesting for a public review shall present the specific reasons for his request.
Article 47
The Board may, at the request of any party, decide to hold a public review of any of the following cases involving the parties from
both sides:
1)
One party requests to make cross-examination and debate face to face with the opposing party with respect to the important evidence;
2)
Where it is necessary to request the witness who has given important testimony to testify or to make cross-examination.
Article 48
The applicant requesting for a public review shall, within 15 days from receiving the counterpart of the written pleadings from the
defending party, make the request to the Board by written form; and the defending party requesting for a public review shall make
such a request to the Board when submitting the written pleadings or supplementing the relevant evidence materials.
Article 49
Under any of the following circumstances, the Board may decide to hold a public review by itself:
1)
The ascertaining of important evidence needs the parties from both sides to make a cross-examination or debate face to face;
2)
The ascertaining of important evidence needs the witness who has given testimony to make a cross-examination or be enquired;
3)
Other circumstances that need public reviews.
Article 50
With respect to a case that has been publicly reviewed, the Board may decide to hold the public review again if it deems necessary.
Article 51
A public review shall examine the evidence materials that have been submitted to the Board and been exchanged between the parties
from both sides.
Article 52
If a public review is to be held, the collegial panel shall, 15 days before the public review is held, notify the parties of the case
and other participants to the review by written form of the date and venue of the review and the members of the collegial panel,
etc.
Article 53
The parties shall, 3 days before the public review is held, submit the return receipt of the notification on the review to the Board.
If the applicant neither submits the return receipt within the time limit to reply whether to attend the public review, nor actually
attends the public review, his application for the review shall be deemed as being withdrawn. The review procedures shall be terminated
and the Board shall conclude the case and notify the applicant by written form; if the applicant replies within the time limit that
he will not attend the public review, or the defending party neither submits the return receipt nor attends the pubic review, the
Board may make the review by default.
Article 54
The return receipt of the notification on public review shall bear the signatures or seals of the parties. Those expressing to attend
the public review shall indicate in the return receipt of the notification the name and post_title of the persons accredited to attend
the public review. Where any organization of trademark agency is entrusted to attend the public review, the name of the trademark
agent to attend the public review shall be indicated in the return receipt of the notification.
Where the witness who has given testimony is requested to testify at the public review, the name of that witness, the relevant information
that can determine his identity and the facts to be proved shall be indicated in the return receipt of the notification on public
review. A witness not indicated in the return receipt of the notification may not testify at the public review.
Article 55
The number of the persons accredited by the parties from each side to attend the public review, including the agents of the entrusted
organization of trademark agency, may not exceed 4. Where there are many persons from one side to attend the public review, one of
them shall be designated as the first speaker to make the main statement.
Article 56
Before a public review starts, the Board may hold a preliminary meeting which is participated in by the parties from both sides to
hear the opinions of the parties on the relevant facts and evidence materials and to determine the major issue to be investigated
at the public review.
The collegial panel shall make a record of the opinions of the parties at the preliminary meeting, and the record shall be verified
and signed by the parties from both sides.
Article 57
At the start of a public review, the collegial panel shall verify the identification certificates of the participants to the public
review to confirm whether they have the qualification for participating in that pubic review, and to find out whether the parities
and other participants are present at the review.
Article 58
Before the investigation of the public review starts, the collegial panel shall briefly introduce the basic information about the
case, define the major disputed problems between the two parties, and then the public investigation shall begin.
Article 59
The investigation of public review shall be carried out pursuant to the following order:
1)
The applicant states the claims of review, and briefly states the relevant facts and evidence;
2)
The defending party gives pleadings;
3)
The collegial panel verifies the claims of review, the reasons and the evidence submitted by the parties of this case;
4)
The applicant produces evidence for the reasons for his claims of review and the facts and evidence on which those claims are based;
5)
The defending party makes the cross-examination and produces counter-evidences, and the applicant makes the cross-examination over
the counter-evidence.
Article 60
In a case publicly reviewed, the evidence shall be shown at the public review and be cross-examined by the parties. The evidence that
has not been cross-examined may not be taken as the basis for ascertaining the facts of the case. However, the evidence that has
been confirmed by the parties at the preliminary meeting and been recorded may be taken as the basis for ascertaining the facts of
the case after the collegial panel makes relevant explanations at the public review.
In the cross-examination of documentary evidence, physical evidence and audiovisual reference materials, the parties shall have the
right to request the presentation of the original document or article, however, with the exception that the original document or
article no longer exists but there is evidence proving that the copy or duplication is identical with the original document or article.
Article 61
In the cross-examination, the parties shall, centering on the authenticity, relevancy and legality of the evidence, make inquiry,
explanation or refutation over the existence and degree of the probative force of the evidence.
Article 62
The cross-examination shall observe the following order:
1)
The applicant presents the evidence, and the defending party makes the cross-examination against the applicant;
2)
The defending party presents the evidence, and the applicant makes the cross-examination against the defending party.
Article 63
The members of the collegial panel may raise questions over the relevant facts and evidence to the parties, and may request the parties
or witnesses to make explanations.
A party may enquire the witnesses upon the permission of the collegial panel.
When enquiring the witnesses, the party may not use threatening or insulting words or means.
Article 64
A witness may not audit at the public review; when a witness is enquired, other witnesses may not be present.
The Board may ask the witness to make confrontations when it deems necessary.
Article 65
Oral debate shall be carried out after the investigation of public review ends. The parties shall state their opinions respectively
on the facts proved by the evidence, the disputed problems and the application of law.
Under the circumstance that the two parties have no dispute over the evidence and fac
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