Trademark Review and Adjudication Rules (2005 Amendment)
发布日期：2005-09-26
Trademark Review and Adjudication Rules (2005 Amendment)
State Administration for Industry and Commerce to make
(No. 20)
"Trademark Review and Adjudication Rules" has the PRC State Administration for Industry and Commerce decided to amend the executive meeting, is hereby promulgated, October 26, 2005 shall come into force.
Secretary: Wang Zhongfu
September 26, 2005
(November 2, 1995 the former State Administration for Industry and Commerce Promulgated by Decree No. 37; September 17, 2002 State Administration for Industry Order No. 3 First Amendment; September 26, 2005 State Administration for Industry and Commerce Order No. 20 Second Revision)
Chapter I General Provisions
First under the "Trademark Law" (hereinafter referred to as the Trademark Law) and "Regulations for the Implementation of the PRC Trademark Law" (hereinafter referred to as the implementation of the Ordinance) provides that the enactment of this rule.
Article according to the Trademark Law and its implementing regulations, the State Administration for Industry and Commerce Trademark Review and Adjudication Board (hereinafter referred to as Trademark Review and Adjudication Board) is responsible for handling cases of trademark review the following:
(A) against State Administration for Industry and Trademark Office (hereinafter referred to as the Trademark Office) decision to reject an application for trademark registration, according to the provisions of the Trademark Law Article 32 apply for a review of the case;
(B) against the opposition and Trademark Office ruled that, according to the provisions of the Trademark Law Article 33 apply for a review of the case;
(C) of the registered trademark, according to the provisions of the Trademark Law 第四十一条 request a decision to dismiss the case;
(D) agree with the Trademark Law and Trademark Office in accordance with article 41, paragraph, Article 44, the provisions of Article 45 to revoke or maintain a registered trademark of the decision, according to the provisions of the Trademark Law Article 49 apply for a review of the case.
Third parties to participate in cases of trademark dispute the assessment activities, should be handled in writing.
Article TRAB hear cases of trademark dispute in writing to implement the trial, but the implementation of regulations according to the provisions of Article 33 except in cases of public review the decision.
Article based on the Trademark Law Trademark Review and Adjudication Board, the implementation of regulations and decisions of the rules and rulings shall be in writing, notify the interested parties, and the reasons.
Article 6 Except as otherwise provided in these Rules, the Trademark Review and Adjudication Board hear cases of trademark dispute collegiate system implemented by the Trademark Review and Adjudication staff collegial group trial.
Collegial panel to hear cases, the implementation of the principle of majority.
Article party or interested party based on the implementation of the provisions of Article IX regulations apply for trademark review and adjudication staff to avoid, it shall apply in writing, and the reasons.
Article in the trademark review period, the parties shall be entitled to dispose of their trademark and related rights and trademark review. Taking into account the public interest, third-party rights under, between the parties can settle their own writing, Trademark Review and Adjudication Board may conduct the mediation.
Article IX of the parties to participate in a total of trademarks Trademark Review and Adjudication, they shall designate a person to be representative; no representative is designated, known for its trademark application or trademark registration book in the order set out in the first human representative. Representative involved in the assessment of the behavior of the parties represented by the occurrence of its effect, but the representative of the change, give up the review request or acknowledge the other party's request for review must have been authorized in writing by the parties represented.
Article foreigners or foreign enterprises for trademark review matters in China has habitual residence or place of business, you can entrust a trademark agency approved by the organization of qualified agents, you can directly apply; in China, no habitual residence or place of business, should be commissioned nationally recognized organization with a trademark agent for the agent.
Change proxy rights, dissolution or change agent agent, or agent of the parties shall promptly notify in writing the Trademark Review and Adjudication Board.
Article XI parties and their agents can apply for access to material relevant to the case.
Chapter II Application and Acceptance
Article 12 Applications for trademark review and adjudication shall meet the following conditions:
(A) The applicant must have a valid qualification;
(B) within the statutory time limit;
(C) belongs to the scope of Trademark Review and Adjudication Board's review;
(D) shall submit the required application form and relevant evidence;
(E) have a clear assessment of the request, based on facts and reasons;
(F) shall pay the assessment fee.
Article XIII apply for trademark review and adjudication shall submit an application to the Trademark Review and Adjudication Board; the respondent, the applicant shall submit the appropriate number of copies of copies; the applicant's mark of an assignment, transfer, and Trademark Office has But the announcement has not yet approved the application, the applicant shall provide the appropriate documents; Trademark Office's decision based on the book or apply for a review of the ruling, it should be accompanied by the Trademark Office's decision or ruling.
Article XIV application shall contain the following:
(A) the name, domicile, address, contact name and phone. Review applications for the respondent, the applicant shall set forth the name and domicile. Entrust a trademark agency to apply for trademark review matters, should also contain a trademark agency's name, mailing address, contact name and phone;
(B) the application number or the disputed trademark and its preliminary validation number, registration number and the publication of the trademark "Trademark Notice" and issue number;
(C) a clear assessment of the request and is based on the facts, reasons and legal basis.
Article XV trademark application does not comply with this rule review Article 12 (a), (b), (c) provides that one of the conditions of the Trademark Review and Adjudication Board shall not accept, notify the applicant and the reasons.
Article XVI does not comply with the Trademark Review and Adjudication Rules apply Article 12 (d), (e), (f) provides that one of the conditions, or not to implement regulations and in accordance with the provisions of this rule to submit the relevant documents, the Trademark Review and Adjudication Board correction notice should be issued to the applicant, limit its receipt of notice of correction within 30 days from the date of correction.
The correction is still not compliant, the Trademark Review and Adjudication Board shall not accept, notify the applicant and the reasons. Limit, no correction, and implementing regulations based on Article 30, as an applicant withdraw an accreditation application, Trademark Review and Adjudication Board shall notify the applicant.
Article XVII Trademark Review and Adjudication review applications meet the conditions for acceptance by the Trademark Review and Adjudication Board shall be issued to the applicant within 30 days' notice of acceptance. "
Article 18 The Trademark Review and Adjudication Board has accepted the application for trademark review and adjudication, one of the following circumstances, the belongs to does not meet the conditions of admissibility, should be based on the implementation of Article 30 of the Ordinance shall be rejected:
(A) violation of the provisions of Article 42 of the Trademark Law, the pre-registration has been approved by the challenge and ruled that a trademark, on the same facts and grounds for a determination of;
(B) the implementing regulations violate Article 35 requires the applicant to withdraw an application for trademark review and adjudication, on the same facts and grounds again review the application;
(C) violation of Article 35 of Regulations for the Implementation of the Trademark Review and Adjudication Board has made a determination or decision to the same facts and grounds again review the application;
(D) does not meet the conditions of admissibility of the case.
Trademark Review and Adjudication Board rejected the application for trademark review and adjudication, it shall notify the applicant and the reasons.
Article 19 applications for review by the applicant, the Trademark Review and Adjudication Board accepted, the copy of the application shall be timely and relevant evidence served by the applicant, limited to its receipt of copy of the application within 30 days from the date of the Trademark Review and Adjudication Board filing an answer, and the number of the applicant to submit the appropriate number of copies; expiration did not submit or late submission, as a waiver of the respondent.
Diershitiao parties need to make the assessment of applications after a reply or additional relevant evidence, it should be declared in the application or pleadings, and defense since the submission of the application or 3 months from the date of submission of application or within a one-time defense the same number of copies of the book of evidence; not declared in the application or the respondent or the expiration of the book is not submitted as a supplement to give up the evidence. However, after the expiration of the formation based on new facts or evidence of other legitimate reasons there except.
Within the statutory period for the parties to provide the evidence, there is the other party, the Trademark Review and Adjudication Board shall send the evidence to the other party, limit its cross-examination within a specified period.
Article an applicant submits an application or the applicant filing an answer, you should also submit to the valid documents to prove their identity. The name of the applicant or the applicant's documents should be submitted with the consistent.
The party name or change of domicile and other matters, should provide the appropriate documents.
Article 22 The parties shall submit evidence of their classification numbers and the production of each directory listing, the source of evidence to prove specific facts to make a brief description, and signature stamp.
Trademark Review and Adjudication Board received evidence submitted by the parties shall, after verification by a directory listing of evidence by the sign on handling personnel in the receipt, indicate the date of submission.
Article 23 The Trademark Review and Adjudication Application and relevant proofs shall be asked to fill in the prescribed form and provide. No prescribed form and asked to fill in, provided Trademark Review and Adjudication Board issued a correction notice to the applicant, limit its receipt of notice of correction within 30 days from the date of correction. The correction is still not compliant, or limit, no correction, the second paragraph of Article XVI of these rules apply to the regulations.
Trademark Review and Adjudication statement and relevant proofs shall be asked to fill in the prescribed form and provide. No prescribed form and asked to fill in, provided by the applicant to the Trademark Review and Adjudication Board issued a correction notice, limit the receipt of notice of correction within 30 days from the date of correction. The correction is still not compliant, or limit, no correction does not affect the Trademark Review and Adjudication Board for review.
Chapter III trial
Article 24 The Trademark Review and Adjudication Board shall hear cases of trademark review form a collegial panel to hear. Collegial group of people by the Trademark Review and Adjudication staff of more than 3 singular form. But one of the following circumstances cases, reviewers can mark a person by the sole review:
(A) and Trademark Office in its rejection decision, ruled that the opposition in the review cited mark has lost the exclusive right or prior right;
(B) requested an adjudication to cancel the trademark has lost the exclusive rights;
(C) and Trademark Office rejection decision cited by the applicant that all trademarks are the property because the applicant did not timely process the change was rejected and Trademark Office, Trademark Office review applications when the applicant has changed after finishing procedures;
(D) of the Trademark Office rejected the decision made by others cited earlier application or registered trademarks of the review are transferred to approved applicants;
(E) any review of other cases can be alone.
Article 25 The party or interested party based on rules to implement provisions of Article 9 and the provisions of Article VII of the Trademark Review and Adjudication apply for the withdrawal of personnel, was to avoid the application of trademark review and adjudication staff in the Trademark Review and Adjudication Board to decide whether to avoid the decision, should be suspended participate in the trial of the case.
Trademark Review and Adjudication Board make a decision, ruling party or interested party made after receipt of application for withdrawal, and does not affect the accreditation decision, ruled that the validity. However, reviewers need to avoid the situation does exist, the Trademark Review and Adjudication Board shall make a deal.
Article 26 The Trademark Review and Adjudication Board's application for withdrawal of the parties shall within 7 days after receipt of the application, in writing, make a decision and notify the applicant in writing. Applicants to the Trademark Review and Adjudication Committee is not satisfied with the decision to avoid, you can apply within 3 days after receipt of the decision for reconsideration. During the reconsideration is to avoid the application of trademark reviewers, do not stop in the trial of the case. Trademark Review and Adjudication Board shall review an application within three days to make a reconsideration decision and notify the applicant for reconsideration.
Article 27 The Trademark Review and Adjudication Board hearing against Trademark Office rejected the application for trademark registration review cases decided, in addition to the Trademark Law shall apply Articles 10, 11, 12 and 16, first paragraph, the Trademark Office should be directed to decision of rejection and the applicant apply for a review of the facts, reasons, the fact that when the request and review the state assessment. Trademark Review and Adjudication Board under the foregoing provisions of this section shall be heard before the decision to review the applicant's views.
Article 28 The Trademark Review and Adjudication Board hearing ruled against the opposition and Trademark Office review the case, the parties shall review the application and the respondent for the facts, reasons and requests for review.
Article 29 The Trademark Review and Adjudication Board hearing request based on the Trademark Law 第四十一条 registered trademark of the decision to dismiss the case, the parties shall apply for and defense of the facts, reasons and request review.
Article 30 The Trademark Review and Adjudication Board hearing against the Trademark Law and Trademark Office in accordance with the provisions of article 41, paragraph a registered trademark of the decision to dismiss the case review, should be directed to the Trademark Office's decision and the applicant apply for a review of the facts, reasons and request review.
Trademark Review and Adjudication Board hearing against the Trademark Law and Trademark Office in accordance with Article 44, Article 45 to revoke or review the decision to maintain a registered trademark case, the Trademark Office should be directed to withdraw or maintain the registered trademarks of decision based on facts, reason and application of the law be reviewed. However, according to the Trademark Law Article 44 (d) apply for a review of the parties to the case needs additional evidence and justified exception.
Article 31 Trademark Review and Adjudication proceedings, the parties of the trademark of an assignment, transfer, transferee or successor shall promptly declare in writing to bear the status of the transfer of people to participate in follow-up assessment procedures and undertake the appropriate assessment of the consequences.
Article 32 of the following circumstances, terminate the review:
(A) death or termination of the applicant not to give up heir or heirs the right to review;
(B) assessment of the applicant to withdraw the application;
(C) the parties settle on their own or after mediation by the Trademark Review and Adjudication Board to reach an agreement;
(D) other circumstances review should be terminated.
Termination of accreditation, the Trademark Review and Adjudication Board to be closed, notify in writing the party, and the reasons.
Article 33 should be collegial panel to hear cases made collegiate record, signed by the members of the collegial panel. Collegial group members have different views, should be accurately recorded in collegiate record.
After hearing the end of the case, according to Trademark Review and Adjudication Board make a decision, ruling.
Article 34 The Trademark Review and Adjudication Board to make the decision, ruling shall contain the following elements:
(A) review the request, the dispute of the facts and reasons;
(B) the decision or ruling confirmed facts, reasons and legal basis for application;
(C) the conclusions of the decision or adjudication;
(D) the parties selected for follow-up procedures and time limits;
(E) decision, determination to date.
Decision, ruling signed by the members of the collegial panel, stamped seal of Trademark Review and Adjudication Board.
Article 35 The Trademark Review and Adjudication Board makes the decision, ruling, an appeal against the people's court, it shall submit the complaint to the court at the same time or later than 15 days a copy to the complaint in writing or otherwise inform the Trademark Review and Adjudication Committee.
Since the Trademark Review and Adjudication Board's decision, ruling within 60 days from the date of issue does not receive from the people's court or the parties to the case of any of the decision, ruled that the prosecution of information, as the parties did not apply to a court, the decision, ruled that the transfer of Trademark Bureau.
Article 36 The Trademark Review and Adjudication Board under the request of the parties or the actual needs, decide to review an application for public review.
Article 37 The parties request for public review, the review should be open to the need for specific reasons.
Article 38 The applicant requests a public review, the applicant shall receive a copy of the reply within 15 days from the date of writing to the Trademark Review and Adjudication Committee; the respondent requests for public review, it should be the trademarks of Jury filing an answer or when added together with the evidence put forward.
Article 39 The public review of the specific procedures otherwise provided by the Trademark Review and Adjudication Board.
Chapter IV Rules of Evidence
Article 40 The parties made their own assessment of the facts relied upon request or refute each other's assessment is based on the fact that the request has the responsibility to provide evidence to support it. There is no evidence or insufficient evidence to prove the factual claims of the parties, the burden of proof by the parties bear the negative consequences.
Statement of a party to the other party expressly acknowledge the facts of the case, the other party without the burden of proof.
The facts of the party, the other party neither admitted nor denied that, as a recognition of that fact.
Parties to participate in assessment of an agent, the agent's recognition as a recognized party. But not specifically authorized agent for the recognition of the fact that review led directly to recognition of each other except for the request; the parties recognize the presence of its agents, but not to repudiate it, as the parties recognize.
第四十一条 the fact that the parties without the burden of proof to prove:
(A) well-known fact;
(B) in accordance with the law presumption of fact;
(C) the fact has been proven according to law;
(D) According to the daily experience the fact that the presumption of law;
(E) Other law without proof of the facts.
But the parties have enough conclusive evidence to the contrary, except.
Article 42 The parties to the Trademark Review and Adjudication Board to provide documentary evidence, should provide the original, including original, original and copy. Provide the original difficulty, and can provide copies, photographs, extracts; to provide documentary evidence kept by the authorities a copy of the original, photocopy or copy parts, should indicate the source, by the same department after being checked cover the seal.
Parties to provide evidence to the Trademark Review and Adjudication Board, it shall provide the original. Difficult to provide original, and can provide a copy or that the evidence photos, video and other evidence; original material for the large number of species, and provide part of it.
Party to the other party referred to in documentary evidence, physical evidence of the existence of copies or photographs and have the appropriate evidence to support the suspicion, or Trademark Review and Adjudication Board deems necessary, the parties shall be questioned or to produce relevant evidence to provide the original or a notarized copy.
Article 43 The parties to the Trademark Review and Adjudication Board to provide evidence for the formation of the Department outside the territory of the PRC or Hong Kong, Macao and Taiwan form, the other party in doubt the authenticity of the evidence and corresponding evidence, or trademarks Jury considers necessary, shall be in accordance with relevant provisions of the relevant notary certification procedures.
Article 44 The parties to the Trademark Review and Adjudication Board to provide evidence or a foreign language outside the instrument and explanatory information should be accompanied with a Chinese translation. Foreign parties to submit evidence of the Chinese translation is not submitted, not submitted as evidence of the foreign language.
The specific content of the translation the other party disagrees, it should be part of the object to submit the Chinese translation. If necessary, the parties may be entrusted to the full text of authorized unit, or the use of part or parts of object to be translated.
Commissioned translation of the parties fail to reach an agreement, the Trademark Review and Adjudication Board may specify the professional translation unit for the full text or are using or have objections to some parts of the translation. Commissioned translation of the costs borne by both parties 50% each; refused to pay the translation costs, as its recognition of the submission of the translation.
Article 45 without a single evidence to prove that power and force size can be determined from the following aspects of the audit:
(A) whether the evidence originals, copies, reproductions and originals are matched;
(B) whether the relevant evidence and facts of the case;
(C) the forms of evidence, whether the source of compliance with the law;
(D) evidence of the content is true;
(E) the witness or provide evidence, whether the interest with the parties.
Article 46 The reviewers of the case all the evidence, should evidence from the facts of the case associated with the extent of the link between evidence and other aspects of comprehensive review of judgments.
Article 47 The following evidence can not stand alone as the basis of facts of the case:
(A) minors by age and mental condition is incompatible with the testimony;
(B) has a relationship with a party, affiliation or other closely related by the witness testimony favorable to the party, or have a negative relationship with a party by that party's witnesses to testify;
(C) should attend the public review without good reason not to participate in public testimony and review evidence the testimony of witnesses;
(D) is difficult to identify whether a modified audio-visual materials;
(E) not with the original check or copy of a copy;
(F) changes by one party or another, the other party does not endorse the evidence;
(Vii) other facts of the case can not stand alone as the basis of the evidence.
Article 48 The party put forward the following evidence, to challenge the other party but not enough to refute the evidence to the contrary, the Trademark Review and Adjudication Board shall confirm its probative force:
(A) the original documentary evidence or documentary evidence and verified the original copy, photographs, copies of extracts;
(B) the original evidence and evidence the original or a copy verified, photos, video information, etc.;
(C) there is other evidence and obtained by legal means, and no doubt point of audio-visual materials and audio-visual materials or a copy verified.
Article 49 The party commissioned to make the conclusions appraisal department, no other party is sufficient to refute the evidence to the contrary and reasons can be identified its probative force.
Article 50 The party's evidence, the other party's approval or to the contrary evidence is insufficient to rebut the Trademark Review and Adjudication Board to confirm its probative force.
Party's evidence, and the other party has objection to rebuttal evidence, the other party to refute the evidence of recognition, and can confirm the strength of the evidence to refute.
第五十一条 parties on the same facts were cited evidence to the contrary, they are not sufficient grounds for denying the other evidence, the Trademark Review and Adjudication Board should be combined circumstances of the case, to determine the strength of the evidence provided by one party is significantly larger than the other party to provide evidence probative force, and greater evidence of probative force to be recognized.
Because the evidence can not determine the cause is difficult to ascertain the facts in dispute, Trademark Review and Adjudication Board shall be based on the principle of allocation of the burden of proof to judge.
Article 52 review process, the parties in the application, defense, proxy statements and their agent in the recognition of one's own words the facts and recognition of adverse evidence, Trademark Review and Adjudication Board shall be recognized, but the parties go back and have evidence to the contrary is sufficient to overturn the exception.
Article 53 The party of their own position is that I can not make statements and other relevant evidence, not support its claims. But the other party, except approved.
Article 54 The Trademark Review and Adjudication Board to the fact that several pieces of evidence the probative force of the same, in accordance with the following principles:
(A) the functions of state organs and other documents produced in accordance with terms of reference instruments better than the other documentary evidence;
(B) the conclusions of archival material and notarized or registered in other documentary evidence over documentary evidence, audio-visual materials and testimony of witnesses;
(C) the originals over copies, reproductions;
(D) the conclusions of the statutory appraisal department better than the other identified sectors conclusions;
(E) is better than the original evidence heard evidence;
(Vi) other than the testimony of witnesses and the parties have close ties of kinship or other witnesses provided testimony favorable to the party;
(G) attend the public review the testimony of witnesses did not attend the public review than the testimony of witnesses to testify;
(H) a number of different types, consistent evidence than an isolated evidence.
During the fifth chapter, service
Article 55, including during the statutory period and the Trademark Review and Adjudication Board specified period.
During the day, month, year calculation. During the beginning of the day, not counting the period.
The last day of expiry of the period is a holiday to the first working day after the holiday as the date of expiry of the period.
Article 56 The parties to the Trademark Review and Adjudication Board of the documents or materials of the date, direct submission to submit for date; mailed, the postmark date shall prevail; postmark date is not clear or there is no postmark, to mark Review Committee shall be the date actually received, but the parties are able to put forward evidence of actual postmark date, except.
Article 57 The Trademark Review and Adjudication Board documents, by mail, or submitted directly served by other parties. Party entrusts a trademark agency organization, service of documents served on the parties as a trademark agency organization.
Trademark Review and Adjudication Board to the parties the date of service of various documents, mail to whichever party received the postmark date; postmark date is not clear or there is no postmark, or not returned by the post office, since the file from the date of issue 15 Japan, as served on the parties; submitted directly in order to submit for date. File can not be submitted directly by mail or can not, you can notice served by the parties, since the announcement from the date of 30, the file is deemed to have been delivered.
Article 58 The parties in the People's Republic of residence or business is not always foreigners or foreign enterprises, set forth by the trademark registration files trademark agency in the review process take trademark trademark sign legal documents related obligations; Trademark Review and Adjudication Board to the relevant legal documents to the trademark agency organization, as served on the parties.
Trademark agency organizations in the preceding paragraph before the relevant legal documents with the lifting of the foreign trademark agency relationship between the parties, shall be in writing to the Trademark Review and Adjudication Board explain the situation, and since the receipt of the documents within 10 days from the date of the relevant legal documents to the Trademark Review and Adjudication Board, be served by the Trademark Review and Adjudication Board.
Madrid international registration of trademarks involves forwarding the relevant documents in the International Bureau, it shall submit appropriate evidence of delivery. Uncommitted, should explain the reasons in writing, from the date of the International Bureau issued a document 15 as a full service.
The method can not be served, public notice.
Chapter VI Supplementary Provisions
Article 59 Trademark Law decided on December 1, 2001 occurred prior to the implementation, are revised Trademark Law Article IV, Article V, Article VIII, Article 9, Article 10, paragraph (a), (c), (d), 10 second paragraph, 11, 12, 13, 15, 16, Article 24, Article 25, Article 31 of the cited case, the Trademark Law Trademark Review and Adjudication Board for review after the implementation of the decision, according to the corresponding provisions of the revised Trademark Law of the assessment; other circumstances, the Trademark Review and Adjudication Board of the former Trademark Law applicable to the corresponding provisions for assessment.
Parties in implementing the decision on the Trademark Law of the registered full year dispute over a trademark, the Trademark Review and Adjudication Board for review of the applicable trademark law before the amendment under paragraph 2 of Article 27 time limit for submitting applications; the parties to the Trademark Law decided to modify the implementation of the trademark was registered less than one year dispute, the Trademark Review and Adjudication Board for review of the applicable provisions of the revised Trademark Law Article 41 third paragraph of the application processing period.
The units or individuals to modify the decision in trademark law before the implementation in accordance with Article 27 of the former Trademark Law and its implementing provisions of Rule 25 of the review application, is Article XIII of the revised Trademark Law, 15, 16 and 31 cases of provisions, the revised Trademark Law does not apply under paragraph 2 Article 41 the limit of the assessment of applications made.
Article 60 The Trademark Review and Adjudication matters for the document format, by the State Administration for Industry and Commerce to develop and publish.
Article 61 rules by the State Administration for Industry and Commerce responsible for the interpretation.
Article 62 These Rules October 26, 2005 shall come into force.