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  • 商标评审规则(修订) Trademark Review and Adjudication Rules (Revised)

    国家工商行政管理总局令第3号

    (State Administration for Industry and Commerce Order No. 37, promulgated on 2 November 1995, revised by the State Administration for Industry and Commerce Order No. 3, promulgated on 17 September 2002 and effective as of 17 October 2002.)

    颁布日期:20020917  实施日期:20021017  颁布单位:国家工商行政管理总局

      PART ONE GENERAL PROVISIONS

      Article 1 These Rules are formulated in accordance with the PRC Trademark Law (the Trademark Law) and the PRC Trademark Law Implementing Regulations (the Implementing Regulations)。

      Article 2 In accordance with the Trademark Law and the Implementing Regulations, the Trademark Review and Adjudication Board of the Administration for Industry and Commerce (the TRAB) is in charge of handling the following types of trademark dispute cases:

      1. cases where a party is dissatisfied with the rejection by the Trademark Office of the State Administration for Industry and Commerce (the Trademark Office) of his application to register a trademark and applies for review pursuant to Article 32 of the Trademark Law;

      2. cases where a party is dissatisfied with a ruling on his opposition issued by the Trademark Office and applies for review pursuant to Article 33 of the Trademark Law;

      3. cases where a request has been made for a ruling to cancel a registered trademark pursuant to Article 41 of the Trademark Law; and

      4. cases where a party is dissatisfied with a decision of the Trademark Office to cancel a registered trademark made pursuant to the first paragraph of Article 41, Article 44 or Article 45 of the Trademark Law and applies for review pursuant to Article 49 of the Trademark Law.

      Article 3 Participation of the parties in review and adjudication activities related to a trademark dispute shall be done in documentary form.

      Article 4 When the TRAB adjudicates trademark disputes, it shall take the facts as the basis and the law as the measure.

      Article 5 When the TRAB adjudicates trademark disputes, it shall treat the parties as equal under the applicable law.

      Article 6 The hearing of trademark disputes by the TRAB shall be conducted in the form of documentary reviews, unless it decides to conduct an open hearing in accordance with Article 33 of the Implementing Regulations.

      Article 7 The parties shall be notified in writing of the decisions and/or rulings of the TRAB made in accordance with the Trademark Law, the Implementing Regulations and these Rules, and the grounds for such decisions and/or rulings shall be stated.

      Article 8 Except otherwise specified herein, the TRAB shall implement the tribunal system for the hearing of trademark disputes. A tribunal shall be composed of trademark adjudicators and shall conduct the hearing.

      When a tribunal adjudicates a case, the principle of the minority yielding to the majority shall apply.

      Article 9 Pursuant to Article 9 of the Implementing Regulations, a trademark adjudicator shall recuse himself, and may be challenged by a party or a materially interested person, in any of the following circumstances:

      1. he is a party in the case or is a close relative of a party or agent;

      2. he is otherwise related to a party or to an agent in a way that may affect his impartiality; or

      3. he is materially interested in the handling of the trademark review and adjudication matters.

      If a party or materially interested person challenges a trademark adjudicator, he shall do so in writing and state the grounds therefor.

      Article 10 While a trademark review and adjudication procedure is pending, the parties shall have the right to legally dispose of their own trademark rights and their rights relating to the trademark review and adjudication.

      Article 11 When the owners of a collective mark take part in trademark review and ad

    judication activities, they shall designate one party as their representative. If no representative has been designated, the party listed first in the trademark registration application or the register of trademarks shall be the representative. The act of participation by the representative in any review and adjudication procedure shall be valid vis-à-vis the parties he represents; however, any change of representative, relinquishment of a claim or acknowledgement of a claim of the other party shall require the written authorization of the parties represented.

      Article 12 If foreigners or foreign enterprises need to handle trademark review and adjudication matters, they may, if they have a permanent residence or a place of business in China, appoint as their agent an organization recognized by the State as qualified to act as a trademark agent, or they may handle matters directly. Foreigners or foreign enterprises that do not have a permanent residence or place of business in China shall appoint an organization recognized by the State as qualified to act as a trademark agent.

      Article 13 If a party appoints a trademark agency to take part in the trademark review and adjudication procedure, such party shall furnish a power of attorney. The power of attorney shall clearly state the matters entrusted and the limits of authority. The power of attorney issued by a foreigner or foreign enterprise shall also state the nationality of the principal.

      The notarization or legalization procedures for the power of attorney and the related supporting documents of a foreigner or foreign enterprise shall be carried out in accordance with the principle of reciprocity.

      The Chinese language shall be used when a foreigner or foreign enterprise applies for or participates in the review and adjudication of a trademark. A Chinese translation shall be attached to any foreign language documents.

      Article 14 If the limits on the authority of an agent are changed or the agency relationship is terminated, the principal shall promptly inform the TRAB in writing.

      Article 15 The parties, materially interested persons and agents may apply to review the case-related materials and apply to make copies of such materials and legal documents. The scope of case-related materials that may be reviewed and copied, and the measures for such review and copying, shall be determined by the Trademark Review and Adjudication Board.

      PART TWO APPLICATION AND ACCEPTANCE

      Article 16 Applications for trademark review and adjudication shall meet the following conditions:

      1. the applicant is lawfully qualified to act as a party in the case;

      2. the application is lodged within the statutory time limit;

      3. the matter is one that can be reviewed and adjudicated by the Trademark Review and Adjudication Board;

      4. a written application and the related exhibits that meet requirements are submitted according to law;

      5. there are specific claims, a factual basis and grounds for the review and adjudication; and

      6. the review and adjudication fee is paid according to law.

      Article 17 To apply for trademark review and adjudication, a written application shall be submitted to the Trademark Review and Adjudication Board. If there are one or more respondents, a number of duplicates corresponding to the number of respondents shall be submitted. If the application for review is based on a written decision or ruling of the Trademark Office, the application shall additionally be accompanied by the written decision or ruling.

      Article 18 The application shall set out the following matters:

      1. the name, domicile and postal code of the applicant; if the applicant is a legal person or other organization, the name and position of the legal representative or main person in charge shall be specified;

      2. the name and application number,

    preliminary approval number or registration number of the disputed trademark and the number of the issue of the Trademark Gazette in which such trademark was gazetted;

      3. specific claims and the facts, grounds and legal basis on which they are premised; and

      4. the name and contact telephone number of the contact person.

      If the application for review and adjudication is directed against a respondent, the name and domicile of the respondent shall be specified. If a trademark agency is engaged to handle the trademark review and adjudication matters, the name, correspondence address, postal code and contact telephone number of the trademark agency shall also be specified.

      Article 19 If the application for trademark review and adjudication does not meet the conditions specified in Items (1), (2) and (3) of Article 16 of these Rules, the TRAB shall not accept it and shall notify the applicant in writing, stating the grounds for the non-acceptance.

      Article 20 If an application for trademark review and adjudication does not meet the conditions specified in Items (4), (5) and (6) of Article 16 of these Rules or if the applicant fails to submit the relevant supporting documentation in accordance with the Implementing Regulations and these Rules, the TRAB shall notify the applicant to carry out supplementation and/or correction, instructing him to effect the same within 30 days from the date of receipt of the notice.

      If a supplemented and/or corrected application still does not conform to provisions, the TRAB shall not accept it and shall notify the applicant in writing, stating the grounds for the non-acceptance. If supplementation and/or correction is not carried out within the time limit, the applicant shall be deemed to have withdrawn the a

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