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 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 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 facts of the case, the oral debate may be directly carried out on the basis that both parties have confirmed the evidence and facts.
Article 66 The oral debate shall observe the following order:
1) The applicant makes the statements;
2) The defending party gives the pleadings;
3) The parties debate with each other.
The members of the collegial panel may raise questions in oral debate.
Article 67 During the oral debate, if any party submits the evidence that has been submitted previously but has not been investigated at the public review, the collegial panel may announce discontinuance of the debate and resume the investigation of public review. And the oral debate shall be carried on after the investigation ends.
Article 68 After both parties have finished stating their arguments, the collegial panel shall seek the final statement from the applicant and then from the defending party.
Article 69 The public review shall end after the final statement is given, and the Board shall make the ruling within a certain period afterwards and serve the written ruling to the parties.
Article 70 The collegial panel shall write down the important matters of the public review in the record. At the end of the public review, the collegial panel shall give the record to the parities for verification. The parties shall have the right to correct the mistakes in the record. The record shall be signed by the parties and put on file if it has been verified to contain no mistake. If any party refuses to sign, the collegial panel shall indicate in the record of the public review.
The important matters of public review as referred to in the preceding paragraph shall include the following matters:
1) The claims of review, the reasons and evidence of the parties;
2) The important facts confirmed by both parties;
3) Other important matters that need to be recorded.
Article 71 At the public review, no one may audit, take pictures, or make audio or visual recording without the permission of the Board.
Chapter V Evidence Rules
Article 72 The applicant who files the application to the Board or the defending party who refutes the claims shall provide the corresponding evidence materials.
Evidence shall include documentary evidence, physical evidence, audiovisual reference materials, testimony of the witnesses, statements of the parties, and appraisal conclusions, etc.
Article 73 A party shall bear the responsibility to provide evidence to prove the facts on which his claims are based or the facts on which the refutation against the opposing party's claims is based.
If there is no evidence or the evidence is insufficient to prove the factual arguments of a party, the party with the burden of proof shall bear the adverse results.
Article 74 If one party expressly acknowledges the facts stated by the opposing party, the latter need not produce evidence. If one party neither acknowledges nor denies the facts stated by the opposing party, those facts shall be deemed as being acknowledged.
If a party entrusts an agent to participate in the review, the acknowledgement made by the agent shall be deemed as that of the party.
However, the situation shall be excluded when the acknowledgement made by an agent without special authorization directly leads to the acknowledgement of the claims of the opposing party; if the party is on the scene but doesn't deny the acknowledgement made by his agent, it shall be deemed that the party makes the acknowledgement.
If a party withdraws his acknowledgement, with the consent of the opposing party, before the end of the public review, or there is sufficient evidence showing that his acts were conducted under threat or major misunderstanding and is not consistent with the facts, the burden of proof of the opposing party may not be exempted.
Article 75 A party need not produce evidence to prove the following facts:
1) The facts known to all;
2) The facts concluded pursuant to law;
3) The facts proved in accordance with law;
4) The facts concluded on the basis of daily life experience;
5) Other facts that need not be proved by evidence in accordance with law.
The facts that can be overthrown by the contrary evidence provided by the parties shall be excluded.
Article 76 When submitting documentary evidence to the Board, a party shall submit the original documents, including the originals, the reserved pieces and the counterparts. If it is really difficult to provide the original documents, the party may provide the copies, pictures or extractions which have been verified to be consistent with the original documents; if the party provides the duplications, photocopies or excerptions of the original documentary evidence which are kept by the relevant department, the source shall be indicated, and the said department shall affix its seal after verifying that there is no mistake.
Article 77 When providing physical evidence to the Board, a party shall provide the original articles. If it is really difficult to provide the original articles, the party may provide the duplications that have been verified to be consistent with the original articles, or the pictures, video recordings or other evidence that can prove the physical evidence; if the original articles are indefinite things in large quantities, part of them shall be provided.
Article 78 Where a party provides computer data or audiovisual reference materials such audio or video recordings to the Board, the following requirements shall be met:
1) The original carriers of the relevant materials shall be provided. If it is really difficult to provide the original carriers, the duplications may be provided;
2) The manufacturing method, date, person and facts to be proved, etc. shall be indicated;
3) Written records of the contents of audio materials shall be attached.
Article 79 Where a party provides testimony of a witness to the Board, the following requirements shall be met:
1) The basic information of the witness shall be indicated, such as the name, age, gender, domicile, working entity or profession, etc.;
2) The witness shall sign his name, if the witness is unable to sign, methods such as putting on seal shall be employed;
3) The date of production shall be indicated;
4) The documents that can prove the identity of the witness shall be attached, such as the copy of the resident identification card.
Article 80 Where a party provides appraisal conclusions to the Board, it shall indicate the trustee and the matters entrusted to be appraised, the relevant materials submitted to the appraising department, the basis for appraisal and the explanations on the qualifications of the appraising department and appraiser, and the signature of the appraiser and the seal of the appraising department shall be on the appraisal conclusions. If the appraisal conclusions are obtained through analysis, the analysis process shall be explained.
Article 81 If the evidence provided by a party to the Board was formed outside the territory of the PRC, such evidence shall be certified by the notarization office of the country where it was formed, and shall be certified by the embassy or consulate of the PRC stationed in that country, or the party concerned shall go through the certification formalities, for the evidence, provided for in the relevant treaties concluded by the PRC and that country.
Where the evidence provided by a party was formed in Hong Kong, Macao or Taiwan area, the relevant certification formalities shall be gone through.
Article 82 Where a party submits documentary evidence or explanation materials in foreign languages, the Chinese translations shall be attached.
If there is no Chinese translation attached to the evidence in foreign languages submitted by a party, such evidence in foreign languages shall be deemed as un-submitted. If the opposing party raises objections to any specific content of the translation, it shall submit the Chinese translation to that part it objects.
If it is necessary, an entity recognized by both parties may be entrusted to translate the full context, or the part used, or the part to which the objection is raised. If the two parties fail to reach an agreement on the entrustment of translation, the Board may entrust a professional translation entity to translate the full context, the part used, or the part to which the objection is raised. The expenses needed for the entrustment shall be borne by the two parties with 50% for each; if one party refuses to pay the expenses for translation, it shall be deemed that that party acknowledges the translation submitted by the opposing party.
Article 83 The Board may investigate and collect the following evidence:
1) Evidence involving the facts that may damage the interests of the state and the public;
2) Evidence involving the procedural matters irrelevant with the substantial dispute, such as the termination of review, or withdrawal, etc.
Article 84 The existence and degree of probative force of single evidence shall be examined from the following aspects:
1) Whether the evidence is the original piece or article, and whether the copy or duplication matches the original piece or article;
2) Whether the evidence is relevant to the facts of the case;
3) Whether the form and source of the evidence conform to the law;
4) Whether the contents of the evidence are true;
5) Whether the witness or the person providing the evidence has any interest relation with the parties.
Article 85 The reviewing officers shall make a comprehensive examination and judgment of all the evidence of the case from the aspects such as the relevance of the evidence with the facts, and the connection between the evidence, etc.
Article 86 Any evidence that is obtained by damaging the legal rights and interests of others or violating the prohibitive provisions of law may not be taken as the basis for ascertaining the facts of the case.
Article 87 The following evidence may not be taken alone as the basis for ascertaining the facts of the case:
1) The testimony given by a minor that doesn't correspond to his/her age and intelligence;
2) The testimony, which is favorable for one party, given by a witness who is the relative, subordinate of or has other close relations with that party, or the testimony, which is unfavorable for one party, given by a witness who has unfavorable relations with that party;
3) The testimony given by a witness who shall testify at the public review but fails to do so without due causes;
4) The audiovisual reference materials which are hard to identify whether they have been modified;
5) The copy or duplication which can't be verified with the original piece or article;
6) The evidence materials which have been modified by one party or by others and are not recognized by the opposing party;
7) Other evidence materials that can't be taken alone as the basis for ascertaining the facts of the case.
Article 88 When giving testimony, a witness shall objectively state the facts he/she is aware of firsthand, and may not use guessing, presuming or commentary words.
Article 89 Where one party presents any of the following evidence and the opposing party raises objection but lacks sufficient contrary evidence to refute, the Board shall confirm the probative force of that evidence:
1) The original piece of the documentary evidence or the copy, picture, counterpart or extraction which has been verified to match the original piece;
2) The original article of physical evidence and the duplication, picture, or video recording which has been verified to match the original article;
3) The audiovisual reference material that is corroborated by other evidence and is obtained through lawful means, or the duplication which has been verified to match the audiovisual reference material.
Article 90 With respect to the appraisal conclusion made by an appraising department entrusted by one party, if the opposing party lacks sufficient contrary evidence and reasons to refute, the probative force of that conclusion shall be confirmed.
Article 91 With respect to the evidence provided by one party, if the opposing party recognizes or the contrary evidence provided by the opposing party is insufficient to refute, the Board may confirm the probative force of the evidence.
With respect to the evidence provided by one party, if the opposing party raises any objection and provides refuting evidence, and the refuting evidence is recognized by the former party, the probative force of such refuting evidence may be confirmed.
Article 92 If the two parties respectively provide conflicting evidence for one fact and neither of them has sufficient basis to refute the evidence provided by the other, the Board shall, in light of the circumstances of the case, judge whether the probative force of the evidence provided by one party obviously exceeds that of the other party, and shall confirm the evidence with the larger probative force.
Where it is difficult to ascertain the disputed facts due to the failure to judge the evidence's probative force, the Board shall judge according to the principle of the distribution of burden of proof.
Article 93 During the review, if one party acknowledges the facts unfavorable for it and recognizes the evidence in the application forms, the written pleadings, the statements or the statements of the authorized agent, the Board shall confirm such facts and evidence, with the exception that the party goes back on his words and has sufficient contrary evidence to overthrow such facts and evidence.
Article 94 If a party can not provide other relevant evidence besides his statements for his argument, that argument shall not be supported. However, the argument recognized by the opposing party shall be exceptional.
Article 95 The Board may determine the probative force of several pieces of evidence for one fact according to the following principles:
1) The official documents produced by state organs and other functional departments based on their powers shall be prior to other documentary evidence;
2) The appraisal conclusions, archive materials, and documentary evidence that have been notarized or registered shall be prior to other documentary evidence, audiovisual reference materials and testimony of witnesses;
3) The original document or article shall be prior to the copy or duplication;
4) The appraisal conclusions made by statutory appraising departments shall be prior to those made by other appraising departments;
5) Primary evidence shall be prior to derivative evidence;
6) The testimony provided by other witnesses shall be prior to the testimony, which is favorable to one party, provided by the witnesses who are relatives or have other close relations with that party;
7) The testimony of the witnesses who have testified at the public review shall be prior to that of the witnesses who have not;
8) The evidence of several different kinds but with the same contents shall be prior to a separate piece of evidence.
Chapter VI Term and Service
Article 96 Terms shall include legal terms and terms designated by the Board. A term shall be calculated by the day, the month and the year.
The day on which a term begins shall not be included in that term.
If the expiration date of a term falls on a holiday, the first workday following that holiday shall be regarded as the expiration date.
Article 97 With respect to the date of submitting documents or materials by a party to the Board, in case of direct delivery, the date of delivery shall be the date of submitting; in case of mail delivery, the date of mailing indicated by the postmark shall be the date of submitting; if the date of mailing indicated by the postmark is unclear or there is no postmark, the date on which the Board actually receives the documents or materials shall be the date of submitting, except that the party can provide evidence to prove the actual date of mailing.
Article 98 The various documents of the Board may be served to the parties by mail, direct delivery or other means.
If a party has entrusted an organization of trademark agency, the documents shall be deemed as being served to the party if it has been served to that organization. With respect to the date of service of various documents to the parties by the Board, in case of mail delivery, the date of receipt by the party indicated by the postmark shall be the date of service; if the date indicated by the postmark is unclear or there is no postmark, or the mail hasn't been returned by the post office, the documents shall be deemed as being served to the party on the 15th day from the day of sending; in case of direct delivery, the day of delivery shall be the date of service. If the documents can not be mailed or can not be directly delivered, they may be served to the parties through pubic announcements, and such documents shall be deemed as being served on the 30th day from the date of promulgation of the public announcement.
Chapter VII Supplementary Provisions
Article 99 With respect to the circumstances, listed in Articles 4, 5 and 8, Paragraph 1 of Article 9, Items 2), 3) and 4) of Paragraph 1 of Article 10, Paragraph 2 of Article 10, Articles 11, 12, 13, 15, 16, 24, 25 and 31 of the modified Trademark Law, that occurred before the implementation of the Decision on Modifying the Trademark Law on December 1, 2001 and are reviewed by the Board after that date, the review shall be carried out pursuant to the corresponding provisions of the modified Trademark Law; with respect to other circumstances, the Board shall review in accordance with the corresponding provisions of the Trademark Law before modification.
Article 100 Where the parties dispute over a trademark, which was registered one year or longer before the implementation of the Decision on Modifying the Trademark Law, and apply to the Board for review, the time limit for filing application provided for in Paragraph 2 of Article 27 of the Trademark Law before modification shall be applied; where the parties dispute over a trademark, which was registered less than one year before the implementation of the Decision on Modifying the Trademark Law, and apply to the Board for review, the time limit for filing application provided for in Paragraph 3 of Article 41 of the modified Trademark Law shall be applied.
Where the relevant entities or individuals, before the implementation of the Decision on Modifying the Trademark Law, applied for review pursuant to Article 27 of the Trademark Law before modification and Article 25 of the Implementation Regulations thereof, and the circumstances are among those listed in Articles 13, 15, 16 and 31 of the modified Trademark Law, the time limit for filing application provided for in Paragraph 2 of Article 41 of the Trademark Law after modification shall not be applied.
Article 101 With respect to the cases that were accepted before the implementation of the Decision on Modifying the Trademark Law but fail to fall within the scope of review by the Board provided for in Article 28 of the Implementation Regulations, and haven't been concluded, the Board shall dismiss such cases and notify the parties by written form and explain the reasons.
Article 102 With respect to the cases that have been accepted for a new review, before the implementation of the Decision on Modifying the Trademark Law, pursuant to Articles 34, 35 of the Rules for Trademark Review and Adjudication promulgated by the former State Administration for Industry and Commerce on November 2, 1995, and fall within the scope of review by the Board provided for in Article 28 of the Implementation Regulations, the Board shall review such cases again pursuant to the modified Trademark Law and the Implementation Regulations thereof, and render the decision or ruling, however, with the exception of the cases that shall be subject to the corresponding provisions of the Trademark Law before modification as provided for in Articles 99, 100 of these Rules.
Article 103 The format of documents for the handling of trademark review shall be formulated and promulgated by the State Administration for Industry and Commerce.
Article 104 The Board shall establish an expert consultation group, from whom the Board shall seek the consultation opinions on the relevant issues in the trademark review.
The expert consultation group shall be composed of several legal experts retained by the Board.
Article 105 Before the implementation of these Rules, the Board shall still try the cases of trademark review according to the procedures provided for in the Rules for Trademark Review and Adjudication promulgated by the former State Administration for Industry and Commerce on November 2, 1995. However, if any provision of the former Rules conflicts with the Decision on Modification of the Trademark Law, the latter shall prevail; after the Implementation Regulations take effect, if any provision of the former Rules for Trademark Review and Adjudication conflicts with the Implementation Regulations, the latter shall prevail; if the State Administration for Industry and Commerce has other notices or provisions on the former Rules for Trademark Review and Adjudication, the relevant notices and provisions shall be observed in execution.
Article 106 The Power to interpret these Rules shall remain with the State Administration for Industry and Commerce.
Article 107 These rules shall enter into force as of October 17, 2002. The Rules for Trademark Review and Adjudication promulgated by the former State Administration for Industry and Commerce on November 2, 1995 is nullified at the same time.
Promulgated by The State Administration for Industry and Commerce on 2002-9-17
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