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Rules for Trademark
Review and Adjudication
Rules for Trademark Review and Adjudication
(Promulgated on 2 Nov., 1995 and revised on 17 Sep.,
2002 by
the State Administration for Industry and Commerce)
Chapter I General Provisions
Rule 1 These Rules are hereby formulated in accordance
with the Trademark Law of the People\'s Republic of
China (hereinafter referred to as the Trademark Law) and
the Implementing Regulations of the Trademark Law of
People\'s Republic of China (hereinafter referred to as
the Implementing Regulations).
Rule 2 Under the Trademark Law and the Implementing
Regulations thereof, the Trademark Review and
Adjudication Board of the State Administration for
Industry and Commerce (hereinafter referred to as the
Trademark Review and Adjudication Board) shall be
responsible for handling the following cases of
trademark dispute:
(1) Cases of application for reexamination filed
according to the provision of Article 32 of the
Trademark Law out of dissatisfaction with decisions made
by the Trademark Office of the State Administration for
Industry and Commerce (hereinafter referred to as the
Trademark Office) on rejection of applications for
trademark registration;
(2) Cases of application for reexamination filed
according to the provision of Article 33 of the
Trademark Law out of dissatisfaction with opposition
adjudication made by the Trademark Office;
(3) Cases of request for adjudication on cancellation of
registered trademarks filed according to the provision
of Article 41 of the Trademark Law; and
(4) Cases of application for reexamination filed
according to the provision of Article 49 of the
Trademark Law out of dissatisfaction with cancellation
decisions made by the Trademark Office according to the
provisions of Articles 41, paragraph one, 44 and 45 of
the Trademark Law.
Rule 3 The review and adjudication activities in which
an interested party participates in cases of trademark
dispute shall proceed in writing.
Rule 4 The Trademark Review and Adjudication Board shall
hear cases of trademark dispute on the basis of facts
and in accordance with law.
Rule 5 The Trademark Review and Adjudication Board shall
hear cases of trademark dispute in such a way that all
interested parties are equal in application of law.
Rule 6 The Trademark Review and Adjudication Board shall
hear cases of trademark dispute in writing, except the
circumstances where it decides to publicly review and
adjudicate a case according to the provision of Article
33 of Implementing Regulations.
Rule 7 The Trademark Review and Adjudication Board shall
notify, in writing, the interested parties of, and
explain the reason for, the decisions and adjudication
made according to the Trademark Law, the Implementing
Regulations and these Rules.
Rule 8 Unless otherwise provided for in these Rules, the
collegial system shall be adopted for the Trademark
Review and Adjudication Board to hear cases of trademark
dispute, and the staff members for the trademark review
and adjudication shall make a collegial panel to conduct
the hearing of a case.
When the collegial panel hears a case, the principle is
adopted that the minority are subordinate to the
majority.
Rule 9 In any one of the following circumstances, any
staff member of the Trademark Review and Adjudication
Board shall withdraw, or an interested party may request
him to withdraw:
(1) he is a party or a close relative to a party or
agent of the case;
(2) he is related in such ways a party or agent insofar
as the relation would affect impartiality; or
(3) he has his interests in the handling of the matter
of trademark review and adjudication.
An interested party shall apply for the withdrawal of a
staff member for trademark review and adjudication in
writing and explain the reason therefore.
Rule 10 During the review and adjudication, an
interested party shall have the right to dispose of,
according to law, his trademark right and the right
relating to trademark review and adjudication.
Rule 11 Where interested parties who are co-owners of a
trademark participate in the review and adjudication,
they shall designate a representative; where no
representative is designated, the first person indicated
in the trademark registration application or in the
Trademark Register shall be the representative. The
action of the representative to participate in the
review and adjudication shall have effect on the
interested parties he represents, but change of the
representative, waiver of the review and adjudication
request or acknowledgement of the other party\'s review
and adjudication request must be authorized in writing
by the interested parties represented.
Rule 12 Where a foreign person or enterprise attending
to matters of review and adjudication who has his or its
habitual residence or place of business in China may
entrust a trademark agency authorized by the State and
having the qualifications with, or directly attend to,
the matter. Where a foreign person or enterprise
attending to the matter of review and adjudication who
does not have his or its habitual residence or place of
business in China shall entrust a trademark agency
authorized by the State and having the qualifications.
Rule 13 An interested party entrusting a trademark
agency with the participation in the trademark review
and adjudication shall submit a Power of Attorney. The
Power of Attorney shall indicate such content and
competence as authorized; the Power of Attorney from a
foreign person or foreign enterprise shall, in addition,
indicate the nationality of the entruster.
Notarization and legalization of the Power of Attorney
and other relevant certificates from a foreign person or
foreign enterprise shall be done based on the principle
of reciprocity.
The foreign person or foreign enterprise that applies
for or participates in trademark review and adjudication
shall use the Chinese language, and documents in a
foreign language shall be attached with a Chinese
translation thereof.
Rule 14 Where there is a change in the competence as
authorized or the agent relation dissolved, the
interested party shall inform the Trademark Review and
Adjudication Board in writing in a timely manner.
Rule 15 Interested parties and agents may consult
documents relating to a case, and apply for making
copies of the documents and legal instruments relating
to the case. The scope and way of the consulting and
copying of the documents relating to the case shall be
provided for by the Trademark Review and Adjudication
Board.
Chapter II Application and Acceptance
Rule 16 Applications for trademark review and
adjudication shall conform to the requirements as
follows:
(1) The applicants must be lawfully qualified subjects;
(2) The applications are filed within the statutory time
limit;
(3) The applications fall within the scope of review and
adjudication by the Trademark Review and Adjudication
Board;
(4) Applications and the relevant proofs that conform to
the requirement are submitted according to law;
(5) There are specific requests, factual bases and
grounds for the review and adjudication; and
(6) The review and adjudication fees are paid according
to law.
Rule 17 To apply for trademark review and adjudication,
one shall file an Application with the Trademark Review
and Adjudication Board. If there is (are) a
respondent/respondents, the applicant shall file as many
copies of the Application as there are respondents. To
apply for reexamination in respect of a decision or
adjudication made by the Trademark Office, one shall
also submit the Decision or Adjudication made by the
Trademark Office along with the Application.
Rule 18 Following information shall be indicated in the
Application:
(1) The name, address and postal code of the applicant;
if the applicant is a legal entity or other
organization, the name and position of its legal
representative or leading person;
(2) The title, application number or preliminary
examination number, registration number of the trademark
at issue and the issue number of the Trademark Gazette
publishing the trademark;
(3) Specific request for the review and adjudication,
and the facts, grounds and legal bases for the request;
and
(4) The name and telephone number of the person to be
contacted.
Where the respondent(s) is(are) indicated in the review
and adjudication application, the name and address
thereof shall be indicated. Where a trademark agency is
appointed to attend to the matter of the trademark
review and adjudication, the name, address, postal code
and telephone number thereof shall also be indicated.
Rule 19 The Trademark Review and Adjudication Board
shall not accept trademark review and adjudication
applications that do not conform to any one of the
requirements of Rule 16 (1), (2) and (3) of these Rules,
notify the applicants in writing and explain the reason.
Rule 20 Where a trademark review and adjudication
application that does not conform to any one of the
requirements of Rule 16 (4), (5) and (6) of these Rules
or where the relevant certificates or proofs are not
submitted according to the Implementing Regulations and
these Rules, the Trademark Review and Adjudication Board
shall notify the applicant to make rectification and
require him to comply within 30 days from the date of
receipt of the notification on rectification.
The Trademark Review and Adjudication Board shall not
accept any application that remain contrary to the
requirements upon rectification, notify the applicant in
writing and explain the reason. Where the rectification
is not made at the expiration of the time limit, the
review and adjudication application shall be deemed to
have been withdrawn by the applicant according to the
provision of Article 30 of the Implementing Regulations,
and the Trademark Review and Adjudication Board shall
notify the applicant in writing.
Rule 21 Where a trademark review and adjudication
application conforms to the requirement of acceptance,
the Trademark Review and Adjudication Board shall issue
to the applicant the Acceptance Notification within
thirty days.
Rule 22 In any one of the following circumstances,
trademark review and adjudication applications accepted
by the Trademark Review and Adjudication Board are ones
that fail to conform to the requirements of acceptance,
and shall be rejected according to Article 30 of the
Implementing Regulations:
(1) they are contrary to the provision of Article 42 of
the Trademark Law in that applications for adjudication
are filed on the basis of the same facts and grounds in
respect of the trademarks to which opposition was raised
and on which adjudication was made before they were
approved for registration;
(2) they are contrary to the provision of Article 35 of
the Implementing Regulations in that applications for
review and adjudication are filed on the basis of the
same facts and grounds in respect of trademarks to which
opposition was raised and on which adjudication was made
after the applicant withdrew the trademark review and
adjudication applications;
(3) they are contrary to the provision of Article 35 of
the Implementing Regulations in that applications for
review and adjudication are filed on the basis of the
same facts and grounds in respect to the adjudication or
decision made by the Trademark Review and Adjudication
Board; or
(4) any other circumstances under which the applications
shall not be accepted.
The Trademark Review and Adjudication Board, when
rejecting a trademark review and adjudication
application, shall notify the applicant in writing, and
explain the reason.
Rule 23 The applicant who needs to supplement relevant
proofs after filing the review and adjudication
applications shall make a statement in the Application
and submit the same number of copies of the proofs as
that of the Application within three months from the
date of filing. Where the applicant does not make the
statement or fails to submit the relevant proofs at the
expiration of the time limit, he is deemed to have
abandoned the supplementation of the relevant proofs.
Rule 24 Where there is/are a respondent/respondents
indicated in the Review and Adjudication Application,
the Trademark Review and Adjudication Board, upon
acceptance, shall forward the copies of the Application
and the relevant proofs thereto in a timely manner, and
require him/them to submit the Reply to the Trademark
Review and Adjudication Board within thirty days from
the date of receipt of the copy of the Application, and
submit the same number of copies thereof as that of the
applicants. Failure to submit the Reply shall not affect
the review and adjudication by the Trademark Review and
Adjudication Board.
Rule 25 The respondent who needs to supplement relevant
proofs after he makes a Reply shall make a statement in
the Reply and submit the same number of copies of the
proofs as that of the Reply within three months from the
date of submitting the Reply. Where the respondent does
not make the statement or fails to submit the relevant
proofs at the expiration of the time limit, he is deemed
to have abandoned the supplementation of the relevant
proofs.
Rule 26 After receipt of the Reply and the relevant
proofs from the respondent, the Trademark Review and
Adjudication Board shall forward the copies of the Reply
and the relevant proofs to the applicant in a timely
manner.
The applicant who has evidence contrary to the Reply and
the relevant proofs shall submit all the evidence to the
Trademark Review and Adjudication Board within thirty
days from the date of the receipt of the Reply and the
relevant proofs.
Rule 27 The applicant, when filing an Application or
respondent, when filing a Reply, shall, meanwhile,
submit valid certificates capable of proving his
identification. The name of the applicant or the
respondent shall be consistent with that indicated in
the certificates submitted.
Where there is a change in the name or address of an
interested party, relevant proofs to this effect shall
be submitted.
Rule 28 The interested party shall categorize, number
and list each proof he submits, briefly explain the
source thereof and specific facts of the evidence, and
sign and seal them.
The Trademark Review and Adjudication Board, after
receiving the proofs submitted by an interested party,
shall check the proofs according to the list thereof,
and the staff member receiving the proofs shall sign his
name thereon and indicate the date of submission.
Rule 29 The Trademark Review and Adjudication
Application and relevant proofs shall be filled out and
submitted in the prescribed form and in conformity with
the requirements. Where the Trademark Review and
Adjudication Application and relevant proofs are not
filled out and submitted in the prescribed form and in
conformity with the requirements, the Trademark Review
and Adjudication Board shall notify the applicant to
make rectification, requiring him to do so within thirty
days from the date of receipt of the rectification
notification. Failure for the amended Application and
relevant proofs to conform to the prescription or
failure to make the rectification at the expiration of
the time limit shall be governed by Rule 20, paragraph
two, of these Rules.
The Trademark Review and Adjudication Reply and relevant
proofs shall be filled out and submitted in the
prescribed form and in conformity with the requirements.
Where the Trademark Review and Adjudication Application
and relevant proofs are not filled out and submitted in
the prescribed form and in conformity with the
requirements, the Trademark Review and Adjudication
Board shall notify the respondent to make rectification,
requiring him to do so within thirty days from the date
of receipt of the rectification notification. Failure
for the amended Reply and relevant proofs to conform to
the prescription or failure to make the rectification at
the expiration of the time limit shall not affect the
review and adjudication by the Trademark Review and
Adjudication Board.
Chapter III Hearing
Rule 30 The Trademark Review and Adjudication Board
shall set up a collegial panel to hear a case of
trademark review and adjudication. The collegial panel
shall be composed of an odd number of three or more
trademark review and adjudication staff members.
However, cases with clear facts and simple circumstances
to be heard by the Trademark Review and Adjudication
Board may be reviewed and adjudicated solely by an
individual trademark review and adjudication staff
member.
Rule 31 In any one of the following circumstances, an
individual trademark review and adjudication staff
member may solely review and adjudicate a case:
(1) where a trademark which has cited by the Trademark
Office in its rejection decision or opposition
adjudication has lost the exclusive right or the right
of priority therein;
(2) where a trademark of which a request for
cancellation has been filed has lost the exclusive right
therein;
(3) where a trademark which has cited by the Trademark
Office in its rejection decision is actually owned by an
applicant, but rejected by the Trademark Office because
the applicant fails to go through the formalities for a
change in time, and the applicant applies, during the
review and adjudication, to the Trademark Office to
complete the formalities for the change;
(4) where a trademark, cited by the Trademark Office in
its rejection decision, in respect of which another
person has filed a prior application or which he has
been granted the registration has been, during the
review and adjudication, approved to be assigned to the
applicant; or
(5) any other cases which the Trademark Review and
Adjudication Board decides that they may be under the
sole review and adjudication by an individual trademark
review and adjudication staff member.
Rule 32 After the trademark review and adjudication
staff members are decided on, the Trademark Review and
Adjudication Board shall notify the interested parties
in writing in a timely manner.
Rule 33 Where an interested party applies for the
withdrawal of a trademark review and adjudication staff
member according to the provision of Article 9 of the
Implementing Regulations and Rule 9 of these Rules, he
shall file the application within fifteen days from the
date of being informed of the trademark review and
adjudication staff members. Where a party finds out the
circumstance in which some relevant trademark review and
adjudication staff member should withdraw at the
expiration of the time limit, he may do so before a
review and adjudication decision or adjudication is
made, but he shall furnish relevant evidence.
Any trademark review and adjudication staff member whose
withdrawal has been applied for shall suspend his
participation in the hearing of the case before the
Trademark Review and Adjudication Board decides whether
or not he should withdraw.
The Trademark Review and Adjudication Board\'s receipt
of a party application for withdrawal after it makes
decision or adjudication shall not affect the validity
of the review and adjudication decision or adjudication.
Rule 34 In respect of a party\'s application for
withdrawal, the Trademark Review and Adjudication Board
shall make its decision within seven days after the date
of the receipt of the application, and notify the
applicant in writing. An applicant who is not satisfied
with the decision on withdrawal made by the Trademark
Review and Adjudication Board, may apply for
reconsideration once within three days after the date of
the receipt of the decision. During the reconsideration,
the trademark review and adjudication staff member whose
withdrawal has been applied for shall not suspend his
participation in the hearing of the case. The Trademark
Review and Adjudication Board shall make its
reconsideration decision within three days, and notify
the reconsideration applicant in writing.
Rule 35 In hearing a case of reexamination applied for
out of dissatisfaction with a decision by the Trademark
Office on the rejection of trademark registration, the
Trademark Review and Adjudication Board shall review and
adjudicate the rejection decision made by the Trademark
Office, the facts of, grounds on and requests for the
reexamination application by the applicant and the
factual situation in the course of review and
adjudication.
Rule 36 In hearing a case of reexamination applied for
out of dissatisfaction with a decision by the Trademark
Office on the opposition adjudication, the Trademark
Review and Adjudication Board shall review and
adjudicate the case in connection with the facts of,
grounds on and requests for, the reexamination
application and reply made by the interested parties.
Rule 37 In hearing a case of reexamination applied for
out of dissatisfaction with a decision by the Trademark
Office on cancellation of a registered trademark
according to the provision of Article 41, paragraph one,
of the Trademark Law, the Trademark Review and
Adjudication Board shall review and adjudicate the case
in connection with the decision made by the Trademark
Office and the facts of, grounds on and requests for,
the reexamination application by the interested parties.
In hearing a case of reexamination applied for out of
dissatisfaction with a decision on cancellation of a
registered trademark made by the Trademark Office
according to the provision of Articles 44 and 45 of the
Trademark Law, the Trademark Review and Adjudication
Board shall review and adjudicate the case in connection
with the facts, grounds and application of law on the
basis of which the Trademark Office has made the
decision on cancellation of a registered trademark.
Rule 38 In hearing a case of adjudication requested
according to the provision of Article 41 of the
Trademark Law on the cancellation of a registered
trademark, the Trademark Review and Adjudication Board
shall review and adjudicate the case in connection with
the facts of, grounds on and requests for, the
reexamination application and reply by the interested
parties.
Rule 39 In any one of the following circumstances, the
review and adjudication shall terminate:
(1) the applicant dies, there is not an heir in title,
or the heir in title abandons his right for review and
adjudication;
(2) the applicant withdraws his application for review
and adjudication;
(3) the interested parties eliminate a dispute via
agreement; or
(4) any other circumstance requiring the termination of
the review and adjudication.
Where the review and adjudication terminates, the
Trademark Review and Adjudication Board shall close the
case, notify the interested parties in writing, and
explain the reason.
Rule 40 Where he requests for withdrawal of his
application before the Trademark Review and Adjudication
Board makes a decision or adjudication, the applicant
may withdraw his application upon explanation in writing
to the Trademark Review and Adjudication Board of the
reasons therefore. However, receipt of the request from
the applicant for withdrawal of his application for
review and adjudication shall not affect the validity of
the review and adjudication decision or adjudication.
Rule 41 The collegial panel shall put down in writing
the case it hears, and the written record shall be
signed by the members thereof. Where the members of a
collegial panel are divided in their opinions, the
divided opinions shall be indicated in the collegial
record.
The Trademark Review and Adjudication Board shall make
decision or adjudication on a case the review and
adjudication of which has been closed.
Rule 42 The following shall be indicated in the decision
or adjudication by the Trademark Review and Adjudication
Board:
(1) Request for review and adjudication and facts at
issue and grounds;
(2) Facts ascertained , reasons and grounds for the
application of law in the decision or adjudication;
(3) Conclusion made in the decision or adjudication;
(4) The follow-up procedure and time limit available to
interested parties; and
(5) Date of the decision or adjudication.
The decision or adjudication shall be signed by the
members of the collegial panel and sealed by the
Trademark Review and Adjudication Board.
Rule 43 In respect of cases transferred from the
people\'s court for reexamination where an interested
party institutes proceedings in the people\'s court out
of dissatisfaction with a decision or adjudication made
by the Trademark Review and Adjudication Board, the
Trademark Review and Adjudication Board shall set up
another collegial panel to conduct the review and
adjudication again.
Rule 44 Where an interested party does not institute
proceedings in the people\'s court in respect of a
decision or adjudication made by the Trademark Review
and Adjudication Board within the statutory time limit,
the decision or adjudication shall become legally
effective.
Chapter IV Public Review and Adjudication
Rule 45 The Trademark Review and Adjudication Board may,
at the request of an interested party or according to
practical needs, decide to conduct a public review and
adjudication of the application therefore.
Rule 46 If an interested party requests for public
review and adjudication, he shall give specific reasons
that the public review and adjudication is necessary.
Rule 47 In respect of the following cases involving both
parties, the Trademark Review and Adjudication Board may
decide to hold the public review and adjudication at the
request of an interested party:
(1) One interested party requests for the face-to-face
cross-examination or debate on important evidence with
the other party; or
(2) It is necessary to ask for the presence of the
witness who has furnished important oral evidence for
testimony or cross-examination.
Rule 48 An applicant requesting for the public review
and adjudication shall file the request in writing with
the Trademark Review and Adjudication Board within
fifteen days from the date of receipt of the copy of the
Reply made by the respondent; and a respondent
requesting for the public review and adjudication shall
file the request together with the submission to the
Trademark Review and Adjudication Board of the Reply or
additional relevant proofs.
Rule 49 In any one of the following circumstances, the
Trademark Review and Adjudication Board may decide at
its own discretion to hold the public review and
adjudication:
(1) It is necessary for both parties to hold the
face-to-face cross-examination or debate to determine
important evidence;
(2) It is necessary to cross-examine and question the
witness furnishing important oral evidence to determine
important evidence; or
(3) Any other circumstances in which the public review
and adjudication is necessary.
Rule 50 If it holds necessary, the Trademark Review and
Adjudication Board may decide to hold the public review
and adjudication again of a case in respect of which the
public review and adjudication has been held.
Rule 51 The public review and adjudication shall be
conducted in respect to the proofs that the interested
parties have submitted to the Trademark Review and
Adjudication Board and that have been exchanged between
both parties.
Rule 52 Where a decision is made to hold the public
review and adjudication, the collegial panel shall
notify, in writing, the interested parties and other
review and adjudication staff members fifteen days
before the public review and adjudication is held, of
the date and place of the public review and
adjudication, and the persons making the collegial
panel.
Rule 53 The interested parties shall submit the Receipt
of the Public Review and Adjudication Notification to
the Trademark Review and Adjudication Board three days
before the public review and adjudication is held. Where
the review and adjudication applicant fails to do so to
reply whether he is going to attend the public review
and adjudication at the expiration of the time limit, or
does not attend the public review and adjudication, his
application for review and adjudication shall be deemed
to have been withdrawn, and the review and adjudication
proceeding terminates. The Trademark Review and
Adjudication Board shall close the case and notify the
applicant in writing. Where the review and adjudication
applicant replies before the time limit expires, saying
not to attend the public review and adjudication, or the
respondent does not return the Receipt at the expiration
of the time limit, nor attends the public review and
adjudication, the Trademark Review and Adjudication
Board may hold the review and adjudication by default.
Rule 54 The receipt of the Public Review and
Adjudication Notification shall be signed or sealed by
the interested parties. If they express their intention
to attend the public review and adjudication, the
interested parties shall indicate, in the Receipt of the
Public Review and Adjudication Notification, the name
and identification of the attendants the interested
parties send to the public review and adjudication. If
an interested party appoints a trademark agency to
attend the public review and adjudication, he shall
indicate, in the Receipt of the Public Review and
Adjudication Notification , the name of the trademark
agent who is going to attend the public review and
adjudication.
Where a witness is requested to attend the public review
and adjudication to present his testimony regarding the
oral evidence he has presented during the hearing, the
name of the witness, the relevant information
ascertaining his identification and the facts to be
testified shall be indicated in the Receipt of the
Public Review and Adjudication Notification. A witness
who is not indicated therein shall not attend the public
review and adjudication to present testimony.
Rule 55 Those sent by each party to the public review
and adjudication shall not be more than four persons,
including the agent from an appointed trademark agency.
If one party sends several persons to attend the public
review and adjudication, he shall appoint one of them as
first speaker to make the main presentation.
Rule 56 Before the public review and adjudication
begins, the Trademark Review and Adjudication Board may
hold a pre-hearing preparatory meeting attended by both
parties to solicit their opinions regarding the relevant
facts and proofs and to determine the main issues to be
investigated in the public review and adjudication.
The collegial panel shall prepare a record of the
opinions raised by the interested parties at the
preparatory meeting held before the public review and
adjudication, and the record shall be verified and
signed by both parties.
Rule 57 When the public review and adjudication begins,
the collegial panel shall check the identification
certificates of the participants of the public review
and adjudication and confirm whether or not they are
qualified to attend the public review and adjudication
and find out whether or not the interested parties and
other participants are present at the public review and
adjudication.
Rule 58 Before the investigation at the public review
and adjudication, the collegial panel shall brief on the
case, clarify the main issue in dispute between the two
parties, and then proceed to commence the investigation
of the public review and adjudication.
Article 59 The investigation of the public review and
adjudication proceeds in the order as follows:
(1) the applicant presents his review and adjudication
requests and briefs on the relevant facts and evidence;
(2) the respondent makes a defense;
(3) the collegial panel makes verifications as to the
review and adjudication requests, grounds, and the
evidence furnished by the parties to the case;
(4) the applicant adduces evidence regarding the grounds
of the review and adjudication request, the facts and
proofs based on which the request is filed; and
(5) the respondent cross-examines the applicant\'s
evidence and raises counter evidence, and the applicant
cross-examines the respondent\'s counter evidence.
Rule 60 In cases of public review and adjudication,
evidence shall be presented at the public review and
adjudication and cross-examined by the parties. Evidence
which has not been cross-examined should not be used as
the basis to ascertain the facts in a case. Evidence
which the parties accepted at the pre-hearing
preparatory meeting and which is recorded on files may
do so after the collegial panel makes it clear at the
public review and adjudication.
When cross-examining documentary evidence, material
evidence or audiovisual reference material, an
interested party has the right to request for producing
the original of the evidence, except that the original
has lost or that there exists evidence showing that the
copy or reproduction is consistent with the original.
Rule 61 During the cross-examination, interested parties
shall challenge, clarify and argue about the
authenticity, relevance, legitimacy and the evidential
force of the evidence.
Rule 62 The cross-examination shall proceed in the order
as follows:
(1) The applicant produces evidence, and the respondent
cross-examines it with the applicant; and
(2) The respondent produces evidence, and the applicant
cross-examines it with the respondent.
Rule 63 The members of the collegial panel may question
an interested party or witness on relevant facts and
evidence and require an interested party or witness to
make explanation.
An interested party may question a witness with the
consent of the collegial panel.
The interested party shall not question a witness in
intimidating or insulting language or manner.
Rule 64 Any witness shall not audit on the public review
and adjudication. When a witness is questioned, other
witnesses shall not be present.
The Trademark Review and Adjudication Board may ask a
witness to cross-examine evidence when necessary.
Rule 65 After the public review and adjudication
investigation is over, oral debate may be held. The
interested parties make their observations concerning
the facts demonstrated by the evidence, the issues in
dispute and the matter of application of law.
Where they have no dispute over the evidence and facts
of the case, both parties may directly enter into the
oral debate on the basis of verification of the evidence
and facts.
Rule 66 The oral debate proceeds in the order as
follows:
(1) the applicant makes a presentation;
(2) the respondent makes a defense; then
(3) they debate with each other.
During the oral debate, the members of the collegial
panel may ask questions.
Rule 67 Where an interested party presents evidence
which he has furnished before, but which has not been
investigated in the public review and adjudication in
the course of the oral debate, the collegial panel may
adjourn the debate, and restart the public review and
adjudication investigation. The oral debate shall resume
after the investigation is over.
Rule 68 After both parties make their observations at
the debate, the collegial panel shall first ask the
applicant and then the respondent to make their final
comments.
Rule 69 After the final comments are made, the public
review and adjudication is over. The Trademark Review
and Adjudication Board shall make adjudication according
to law within a certain period afterward, and send the
Adjudication to the interested parties.
Rule 70 The collegial panel shall put the public review
and adjudication down in writing, recording the
important matters involved in the public review and
adjudication. When the public review and adjudication
terminates, the collegial panel shall give the record to
the interested parties for verification. The interested
parties have the right to request for correction of
defects or errors in the record. Record that proves to
be correct upon verification shall be signed by the
interested parties and put on file. Where an interested
party refuses to sign the record, the collegial panel
shall indicate it in the public review and adjudication
record.
The important matters mentioned in the preceding
paragraph contain, among other things, following
information:
(1) the review and adjudication request, grounds and
evidence of the parties;
(2) important facts accepted by both parties; and
(3) any other important matters that need to be put down
in writing.
Rule 71 During the public review and adjudication,
auditing, photograph-taking, sound-recording and
video-recording shall not be allowed without the
permission of the Trademark Review and Adjudication
Board.
Chapter V Rules on Evidence
Rule 72 If an applicant files an application with the
Trademark Review and Adjudication Board or a respondent
raises a rebuttal, he shall furnish relevant proofs.
The proofs include, among other things, documentary
evidence, material evidence, audiovisual reference
material, oral evidence of witnesses, statements made by
the parties and appraisal conclusion.
Rule 73 An interested party shall be under the burden of
proof to testify the facts on the basis of which he
requests for the review and adjudication or on the basis
of which one rebut the other party\'s review and
adjudication request.
Where there is no evidence or there is not sufficient
evidence to attest to the factual claims by an
interested party, the interested party under the burden
of proof shall bear the adverse consequences.
Rule 74 Where one interested party expressly
acknowledges the facts in a case as stated by the other
party, the latter is not under the burden of proof.
The other party\'s neither acknowledging nor denying the
facts claimed by an interested party shall be deemed
acknowledgement thereof.
Where an interested party appoints an agent to attend
the review and adjudication, the agent\'s
acknowledgement shall be deemed the interested party\'s
acknowledgement, except that the acknowledgement by an
agent not specially authorized directly results in the
acknowledgement of the review and adjudication request
of the other party. Lack of denial, on the part of the
interested party present, of the acknowledgement by the
agent shall be deemed acknowledgement thereof.
Where an interested party withdraws his acknowledgement
before the debate at the public review and adjudication
is over and the other party gives his consent thereto,
or where there is sufficient evidence to show that his
acknowledgement is made under coercion or in the
presence of major misunderstanding, the other party
shall not be exempt from the burden of proof.
Rule 75 An interested party does not need to adduce
evidence to prove the following facts:
(1) facts known to all;
(2) facts deducted from the law;
(3) facts proven according to the law;
(4) facts deducted on the basis of experience and laws
of the daily life; and
(5) other facts in respect of which adduction of
evidence is not required under the law.
Except that an interested party has evidence to the
contrary which is sufficient enough to upset the facts.
Rule 76 An interested party who furnishes the Trademark
Review and Adjudication Board with documentary evidence
shall furnish the original, including the original text,
the authentic text and the copy. The interested party
who has difficulty furnishing the original may furnish
the Xerox copies, photographs or extracts certified to
be consistent with the original. Where the Xerox copies,
photographs or extracts, which are certified to be
consistent with the original, of the original
documentary evidence kept by a relevant department, the
sources shall be indicated and sealed thereby upon
verification.
Rule 77 An interested party who furnishes the Trademark
Review and Adjudication Board with material evidence
shall furnish the original material. The interested
party who has difficulty furnishing the original may
furnish the reproduction certified to be consistent with
the original material or other evidence such as
photographs or video-recordings of said material
evidence. Where the original is of relatively many
varieties, a part thereof shall be furnished.
Rule 78 Where an interested party furnishes the
Trademark Review and Adjudication Board with computer
data or audiovisual reference material, such as
sound-recordings or video-recordings, the following
requirements shall be complied with:
(1) the original carrier of the relevant reference
material be furnished; where it is indeed difficult to
furnish the original carrier, the reproduction thereof
may be furnished;
(2) the way, time, reproducer and facts to be proved of
the reproduction be indicated; and
(3) the sound-recording reference material be attached
with the transcripts thereof.
Rule 79 An interested party furnishes the Trademark
Review and Adjudication Board with a witness\'s oral
evidence , the following requirements shall be complied
with:
(1) the name, age, gender, residence, employer or
profession and other information of the witness be
indicated;
(2) the witness signs the oral evidence; where he cannot
sign it, he put his seal on it or give proof in some
other way;
(3) the date on which it is produced be indicated; and
(4) documents showing the identification of the witness,
such as a copy of identification card shall be attached.
Rule 80 Where an interested party furnishes the
Trademark Review and Adjudication Board with an
appraisal conclusion, he shall indicate the entruster,
subject matters of appraisal entrusted, relevant
material submitted to the appraisal department, basis of
appraisal and statements of the qualification of the
appraisal department and appraisers and the appraisal
conclusion shall be signed by the appraisers and sealed
by the appraisal department. For an appraisal conclusion
obtained through analysis, the process of analysis shall
be explained.
Rule 81 Where evidence an interested party furnishes to
the Trademark Review and Adjudication Board is formed
outside the territory of the People\'s Republic of
China, the evidence shall be notarized by a notary
office of the country and legalized by the embassy or
consulate of the People\'s Republic of China in that
country, or undergo the certification procedure provided
for in the relevant treaty concluded between the
People\'s Republic of China and the country.
Where evidence an interested party furnishes to the
Trademark Review and Adjudication Board is formed in
Hong Kong, Macao and Taiwan, he shall go through the
relevant certification procedure.
Rule 82 Where an interested party furnishes to the
Trademark Review and Adjudication Board instruments or
explanatory material in a foreign language, he shall
attach the Chinese translation thereof. Where an
interested party who has furnished evidence in a foreign
language fails to submit the Chinese translation
thereof, the evidence in the foreign language shall be
deemed not to have been submitted.
Where the other party has objection to the specific
content of the translation, he shall submit the Chinese
translation of the part to which the objection is
raised. If necessary, an entity accepted by both parties
may be entrusted with the translation of the text, in
whole or in part, used or objected to.
Where both parties fail to reach an agreement on the
translation entrustment, the Trademark Review and
Adjudication Board may entrust a professional
translation entity with the translation of the text, in
whole or in part, used or objected to. Each party shall
bear 50 percent of the fees necessary for the entrusted
translation. A party\'s refusal to pay the translation
fee shall be deemed its acceptance of the translation
submitted by the other party.
Rule 83 In the following circumstances, the Trademark
Review and Adjudication Board may investigate and
collect evidence:
(1) facts involved that are likely to prejudice the
interests of the country and public; and
(2) matters of procedure that are irrelevant to
substantive disputes, such as termination of the review
and adjudication or withdrawal;
Rule 84 A single piece of evidence may be verified and
confirmed as to the presence and strength of evidential
force in relation to the following aspects:
(1) whether the evidence is the original text, original
material, copy or reproduction; whether it is consistent
with the original;
(2) whether the evidence is relevant to the facts of a
case;
(3) whether the evidence conforms to the law in terms of
form or source;
(4) whether the evidence is true in content; and
(5) whether the witness or the person furnishing the
evidence has interest in an interested party.
Rule 85 The review and adjudication staff members shall
comprehensively examine and evaluate all the evidence as
to the degree of the relevance of all the evidence to
the facts of a case and the relationship of the
evidence.
Rule 86 Evidence obtained in ways prejudicing the lawful
rights and interests of another person or contrary to
provision on prohibition of the law shall not serve as
the basis for ascertaining the facts in a case.
Rule 87 The following evidence shall not alone serve as
the basis for ascertaining facts in a case:
(1) Oral evidence from a minor which does not match his
age or intelligence;
(2) Oral evidence from a witness who is a relative,
affiliate or otherwise closely related to an interested
party in his favor or oral evidence not in his favor
from a witness who is adversely-related thereto;
(3) Oral evidence from a witness who should attend the
public review and adjudication but fails to without
justification;
(4) Audiovisual reference material difficult to be
detected as to whether it is modified or not;
(5) Copy or reproduction impossible to be verified with
the original;
(6) Proofs which one party or another person has
modified and which the other party does not accept; and
(7) Any other proofs that cannot serve as the basis for
ascertaining the facts in a case.
Rule 88 A witness presenting evidence shall objectively
state the truth of his personal experience, and shall
not do so in conjectural, inferential or commentary
language.
A person who is not able to correctly express his will
shall not act as a witness.
Rule 89 The following evidence which one party furnishes
and to which the other party raises his objection
without evidence to the contrary sufficient enough to
deny the truth thereof shall be established by the
Trademark Review and Adjudication Board as having its
evidential force:
(1) The original documentary evidence or the Xerox
copies, photographs, copies or extracts thereof which
are verified to be consistent with the original
documentary evidence;
(2) The original material evidence or the copies,
photographs or video-recording materials thereof which
are verified to be consistent with the original material
evidence;
(3) The audiovisual reference material which is
supported by other evidence and obtained by legal means
and free of any doubt or the reproduction thereof
verified without any inconsistency found.
Rule 90 Where the other party does not have evidence and
reasons sufficient enough to rebut an appraisal
conclusion which an interested party has entrusted an
appraisal department with making, the evidential force
of the appraisal conclusion may be established.
Rule 91 In respect of the evidence one party has
furnished, the other party accepts or the evidence to
the contrary furnished thereby is not sufficient enough
to rebut it, the Trademark Review and Adjudication Board
may determine its evidential force.
Where in respect of the evidence one party has
furnished, the other party has objection thereto and
presents evidence to rebut it, and the other party
accepts the rebutting evidence, the evidential force of
the rebutting evidence may be determined.
Rule 92 Where both parties furnish evidence to the
contrary in respect of the same fact, neither has
sufficient ground for the denial of the evidence of the
other party, the Trademark Review and Adjudication Board
shall evaluate, considering the circumstances of a case,
whether or not the evidence furnished by one party is
obviously more valid in evidential force than that by
the other party, and confirm the evidence carrying more
valid evidential force.
Where it is impossible to evaluate the evidential force
of the evidence, and, as a result, it is difficult to
ascertain the facts in dispute, the Trademark Review and
Adjudication Board shall make determination according to
the doctrine for distribution of burden of proof.
Rule 93 The Trademark Review and Adjudication Board
shall confirm the facts and accepted evidence
acknowledged adverse to an interested party in his
Application, Reply, Written Statement, and the
statements made by the agent he has entrusted in the
course of review and adjudication, except that the party
goes back on his words and has evidence to the contrary
which is sufficient enough to upset the evidence.
Rule 94 Where an interested party has made his own
statement of, but cannot furnish other relevant evidence
to back up, his claim, the claim shall not be supported,
except that the other party otherwise accepts the claim.
Rule 95 The Trademark Review and Adjudication Board may
determine the evidential force of several pieces of
evidence as to the same fact according to the following
principles:
(1) Documents and instruments prepared by a State agency
and any other competent department according to the
functions and authority thereof prevail over other
documentary evidence;
(2) Appraisal conclusions, materials kept on file and
notarized or registered documentary evidence prevail
over other documentary evidence, audiovisual reference
evidence and oral evidence from a witness;
(3) Original documents or materials prevail over copies
or reproductions;
(4) Appraisal conclusions made by statutory appraisal
departments prevail over those by other appraisal
departments;
(5) Original evidence prevails over to derivative
evidence;
(6) Other oral evidence of witnesses prevails to oral
evidence from a witness who is a relative or otherwise
closely related to an interested party in his favor;
(7) Oral evidence from a participant of the public
review and adjudication prevails over that from a
non-participant; and
(8) Several pieces of evidence variant in category and
consistent in content prevail over a single isolated
piece of evidence.
Chapter VI Time Limit and Service
Rule 96 The time limit includes the statutory time limit
and that fixed by the Trademark Review and Adjudication
Board.
The time limit is counted in days, months and years. The
beginning day of a time limit is not counted.
Where the last day on which a time limit expires is a
public holiday, the first workday following the public
holiday is the date on which the time limit expires.
Rule 97 Where any document or material is sent to the
Trademark Review and Adjudication Board, the date of
receipt shall be the date of delivery where it is
delivered personally, or the date of posting indicated
by the postmark if it is sent by post; where the date of
posting indicated by the postmark is illegible, or there
is no postmark, the date of receipt shall be the date on
which the Trademark Review and Adjudication Board
actually receives the document or material, except that
the interested party is able to present evidence as to
the actual date of posting indicated by the postmark.
Rule 98 Any document of the Trademark Review and
Adjudication Board may be served by post, by personal
delivery or by other means. Where an interested party
entrusts a trademark agency, delivery of the document to
the trademark agency shall be deemed delivery thereof to
the interested party.
Where any document is sent to an interested party by the
Trademark Review and Adjudication Board, the date of
receipt shall be the date of receipt indicated by the
postmark on which the interested party receives it if it
is sent by post; where the date of posting indicated by
the postmark is illegible, or where there is no
postmark, or it is not returned to the addressor by the
Post Office the document shall be deemed to have been
delivered to the interested party on the fifteenth day
from the date of posting the document; the date of
receipt shall be the date of delivery if it is delivered
personally. Where any document cannot be sent by post or
by personal delivery, the document may be served by
making an announcement. At the expiration of the
thirtieth day from the date of the announcement, the
document shall be deemed to have been served.
Chapter VII Supplementary Provisions
Rule 99 The circumstances having arisen before entry
into force of the Decision on the Amendment of the
Trademark Law on 1 December 2001 that are listed in
Articles 4, 5, 8, 9, paragraph one, 10, paragraph one
(2), (3) and (4), 10, paragraph two, 11, 12, 13, 15, 16,
24, 25 and 31 of the revised Trademark Law and that the
Trademark Review and Adjudication Board reviewed and
adjudicated after entry into force of the Decision on
the Amendment of the Trademark Law shall be reviewed and
adjudicated pursuant to the relevant provisions of the
revised Trademark Law. In respect of other
circumstances, the Trademark Review and Adjudication
Board shall apply the relevant provisions of the former
Trademark Law to the review and adjudication thereof.
Rule 100 Where an interested party applies to the
Trademark Review and Adjudication Board for review and
adjudication in respect of a dispute over a trademark
that had been registered for a year when the Decision on
the Amendment of the Trademark Law entered into force,
the time limit for filing the application provided for
in Article 27, paragraph two, of the former Trademark
Law shall apply in handling the application to the
Trademark Review and Adjudication Board for review and
adjudication. Where an interested party applies to the
Trademark Review and Adjudication Board for review and
adjudication in respect of a dispute over a trademark
that had been registered for less than a year when the
Decision on the Amendment of the Trademark Law entered
into force, the time limit for filing the application
provided for in Article 41, paragraph three, of the
revised Trademark Law shall apply in handling the
application to the Trademark Review and Adjudication
Board for review and adjudication
Where an relevant entity or person files on application
for review and adjudication according to the provisions
of Article 27 of the former Trademark Law and Rule 25 of
Implementing Regulations thereof before entry into force
of the Decision on the Amendment of the Trademark Law,
and the application falls into the provisions of
Articles 13, 15, 16 or 31 of the revised Trademark Law,
the provision for the time limit for filing application
for review and adjudication of Article 41, paragraph
two, of the revised Trademark Law does not apply.
Rule 101 Where cases had been accepted before entry into
force of the Decision on the Amendment of the Trademark
Law, but fall outside the scope of review and
adjudication by the Trademark Review and Adjudication
Board provided for in Article 28 of the Implementing
Regulations and the review and adjudication of which
have not been closed, the Trademark Review and
Adjudication Board shall return them, notify the
applicants in writing and explain the reason.
Rule 102 Where cases of re-review and re-adjudication
that have been accepted according to the provisions of
Rules 34 and 35 of the Rules for Trademark Review and
Adjudication promulgated by the State Administration for
Industry and Commerce on 2 November 1995 before entry
into force of the Decision on the Amendment of the
Trademark Law fall into the scope of review and
adjudication by the Trademark Review and Adjudication
Board as provided for in Article 28 of the Implementing
Regulations, the Trademark Review and Adjudication Board
shall conduct review and adjudication thereof again and
make decision or adjudication thereon pursuant to the
revised Trademark Law and the Implementing Regulations
thereof, except that it is otherwise provided for in
Rules 99 and 100 of these Rules for the application of
the relevant provisions of the former Trademark Law.
Rule 103 The documents or forms for handling review and
adjudication matters shall be formulated and published
by the State Administration for Industry and Commerce.
Rule 104 The Trademark Review and Adjudication Board
shall establish an experts consultation group for
consultation or comments on relevant points at issue in
the trademark review and adjudication.
The experts consultation group shall be composed of
legal experts, and the Trademark Review and Adjudication
Board shall appoint experts to make the experts
consultation group.
Rule 105 Before these Rules enter into force, the
Trademark Review and Adjudication Board shall hear cases
of trademark review and adjudication according to the
procedure under the Rules for Trademark Review and
Adjudication promulgated by the State Administration for
Industry and Commerce on 2 November 1995. However, where
the Rules run into conflict with the Decision on the
Amendments of the Trademark Law, the Decision on the
Amendment of the Trademark Law shall govern. Where the
Rules run into conflict with the Implementing
Regulations after the Implementing Regulations enter
into force, the Implementing Regulations shall govern.
Where the State Administration for Industry and Commerce
issues notification to provide otherwise in connection
with the Rules, the provisions of the relevant
notification shall be complied with.
Rule 106 The State Administration for Industry and
Commerce shall be responsible for the interpretation of
these Rules.
Rule 107 These Rules shall enter into force on 17
October 2002, and the Rules for Trademark Review and
Adjudication promulgated by the State Administration for
Industry and Commerce on 2 November 1995 shall be
simultaneously abrogated.
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