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

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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 adjudication 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 application and the TRAB shall notify the applicant in writing, in accordance with Article 30 of the Implementing Regulations.

  Article 21 If an application for trademark review and adjudication is found upon examination to meet the conditions for acceptance, the TRAB shall issue an Acceptance Notice to the applicant within 30 days.

  Article 22 A trademark review and adjudication application that has been accepted by the TRAB shall be considered as not meeting the conditions for acceptance and rejected in accordance with Article 30 of the Implementing Regulations, if:

  1. the application violates Article 42 of the Trademark Law because the trademark was opposed and such opposition was ruled on before its registration was approved, and the said application for a ruling is subsequently made on the basis of the same facts and grounds;

  2. the application violates Article 35 of the Implementing Regulations because after withdrawing its application for trademark review and adjudication, the applicant again submits a review and adjudication application based on the same facts and grounds;

  3. the application violates Article 35 of the Implementing Regulations because the TRAB has made a ruling or decision, and the said application is a repeat application for review and adjudication based on the same facts and grounds; or

  4. the application fails to meet another condition for acceptance.

  If the TRAB rejects a trademark review and adjudication application, it shall notify the applicant in writing, stating the grounds for the rejection.

  Article 23 If the applicant needs to submit relevant supplementary exhibits after he applies for review and adjudication, he shall include a statement to that effect in his application and submit the exhibits in the same number of copies as the application within three months from the date on which he filed the application. If he does not include the above-mentioned statement in his application or fails to submit the above-mentioned exhibits within the time limit, he shall be deemed to have foregone his submission of supplementary exhibits.

  Article 24 If a review and adjudication application is directed against a respondent, the TRAB shall, once it has accepted the application, promptly deliver the duplicate of the application and the relevant exhibits to the respondent and instruct him to submit a written defence to the TRAB within 30 days from the date of receipt of the duplicate of the application, accompanied by the same number of duplicates as there are applicants. Failure to submit a written defence within the time limit shall not affect the review and adjudication by the TRAB.

  Article 25 If the respondent needs to submit relevant supplementary exhibits after submission of his written defence, he shall include a statement to that effect in his written defence and submit the exhibits in the same number of copies as his written defence within three months from the date on which his written defence was submitted. If he does not include the above-mentioned statement in his written defence or fails to submit the above-mentioned exhibits within the time limit, he shall be deemed to have foregone his submission of supplementary exhibits.

  Article 26 After the TRAB has received the respondent's written defence and exhibits, it shall promptly deliver the duplicate of the defence and the exhibits to the applicant.

  If the applicant has counter-evidence in respect of the respondent's written defence or the exhibits provided, he shall submit such evidence to the TRAB at one time within 30 days from the date of receipt of the written defence and related exhibits.

  Article 27 When the applicant submits his application or the respondent submits his written defence, he shall also provide valid documentation proving his identity. The name of the applicant or respondent must be the same as that on the proof of identity provided.

  In the event of a change in particulars such as the name, domicile, etc. of any of the parties, the party concerned shall furnish the relevant supporting documents.

  Article 28 The parties shall classify and number each exhibit that they submit, compile an index thereof, giving a brief description of the source of the exhibits and the specific facts that they support, and sign and seal the same.

  After the TRAB receives the exhibits submitted by the parties, it shall check the exhibits against the index, and the person handling the matter shall sign, and note the submission date, the index and the acknowledgment of receipt.

  Article 29 The trademark review and adjudication application and the relevant exhibits shall be written and submitted in the prescribed format and according to the specified requirements. If the application or relevant exhibits are not written or submitted in the prescribed format or according to the specified requirements, 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, after supplementation and/or correction, the application or exhibits still fail(s) to satisfy provisions or if the applicant fails to carry out supplementation and/or correction within the time limit, matters shall be handled in accordance with the second paragraph of Article 20 hereof.

  The trademark review and adjudication defence and the relevant exhibits shall be written and submitted in the prescribed format and according to the specified requirements. If the defence or relevant exhibits are not written or submitted in the prescribed format and according to the specified requirements, the TRAB shall notify the respondent to carry out supplementation and/or correction, instructing him to effect the same within 30 days from the date of receipt of the notice. Review and adjudication by the TRAB shall not be affected if, after supplementation and/or correction, the application or exhibits still fail(s) to satisfy provisions or if the respondent fails to carry out supplementation and/or correction within the time limit.

  PART THREE HEARINGS

  Article 30 When hearing a trademark review and adjudication case, the TRAB shall form a tribunal to conduct the hearing. The tribunal shall be composed of an odd number of three or more trademark adjudicators. However, when the TRAB hears cases whose facts are clear and whose circumstances are straightforward, a sole trademark adjudicator may conduct the review and adjudication procedure.

  Article 31 A case may be reviewed and adjudicated by a sole trademark adjudicator if:

  1. the exclusive right to use, or prior right in, the trademark cited in a rejection decision or ruling on an opposition rendered by the Trademark Office had already been lost at the time of the review and adjudication procedure;

  2. a request for a ruling to cancel a trademark has been submitted, but the exclusive right to use such trademark has already been lost;

  3. the trademark cited in the rejection decision rendered by the Trademark Office belongs to the applicant but was rejected by the Trademark Office because the applicant had failed to timely handle procedures for change; however, by the time of the review and adjudication procedure the applicant has applied to the Trademark Office to complete the procedures for change;

  4. the third party's prior application or registered trademark cited in the rejection decision rendered by the Trademark Office has been transferred to the applicant, upon approval, by the time of the review and adjudication procedure; or

  5. it is a case that, as decided by the TRAB, may be reviewed and adjudicated by a sole trademark adjudicator.

  Article 32 After confirming the trademark adjudicators, the TRAB shall promptly notify the relevant parties thereof in writing.

  Article 33 If a party or materially interested person intends to challenge a trademark adjudicator pursuant to Article 9 of the Implementing Regulations and Article 9 hereof, he shall do so within 15 days after he has been informed of the trademark adjudicators. If a party or a materially interested person discovers grounds on which to challenge a relevant trademark adjudicator after the expiration of the time limit, he may submit a challenge before the rendering of the review and adjudication decision or ruling, provided that he submits evidence in support thereof.

  Until the TRAB has made a decision concerning the challenge, the trademark adjudicator challenged shall provisionally cease to participate in the hearing of the case.

  If the TRAB receives a challenge submitted by a party or a materially interested person after rendering the decision or ruling, the validity of such decision or ruling shall not be affected.

  Article 34 The TRAB shall render a written decision on a party's challenge within seven days after receipt of the challenge, and shall notify the challenger in writing. If the challenger is dissatisfied with the Trademark Review and Adjudication Board's decision to reject his challenge, he may apply once for reconsideration within three days after receipt of the decision. While the reconsideration is pending, the trademark adjudicator challenged shall continue to participate in the hearing of the case. The TRAB shall render its decision upon reconsideration within three days and notify the applicant in writing.

  Article 35 When hearing a review case involving dissatisfaction with a decision by the Trademark Office to reject an application to register a trademark, the TRAB shall, when conducting the review and adjudication procedure, consider the Trademark Office's rejection decision, the facts, grounds and claims of the applicant's application for review and the facts as they stand at the time of the review and adjudication procedure.

  Article 36 When hearing a review case involving dissatisfaction with a ruling on an opposition rendered by the Trademark Office, the TRAB shall, when conducting the review and adjudication procedure, consider the facts, grounds and claims of the parties' application for review and defence.

  Article 37 When hearing a review case involving dissatisfaction with a decision by the Trademark Office to cancel a registered trademark pursuant to the first paragraph of Article 41 of the Trademark Law, the TRAB shall, when conducting the review and adjudication procedure, consider the Trademark Office's decision and the facts, grounds and claims of the applicant's application for review.

  When hearing a review case involving dissatisfaction with a decision by the Trademark Office to cancel a registered trademark pursuant to Article 44 or 45 of the Trademark Law, the TRAB shall, when conducting the review and adjudication procedure, consider the facts, grounds and applicability of laws on which the Trademark Office relied at the time it rendered its decision to cancel the registered trademark.

  Article 38 When hearing a case involving a request for a ruling to cancel a registered trademark pursuant to Article 41 of the Trademark Law, the TRAB shall, when conducting the review and adjudication procedure, consider the facts, grounds and claims of the parties' application and defence.

  Article 39 A review and adjudication procedure shall be terminated if:

  1. the applicant is closed or dies without a successor or his successor waives his right to review and adjudication;

  2. the applicant withdraws the review and adjudication application;

  3. the parties eliminate the dispute by means of an agreement; or

  4. another circumstance requiring termination of the review and adjudication procedure arises.

  If a review and adjudication procedure is terminated, the TRAB shall close the case, notify the relevant parties thereof in writing and state the grounds therefor.

  Article 40 If the applicant requests the withdrawal of his application before the TRAB has rendered its decision or ruling, he may do so after stating the grounds therefor to the TRAB in writing. However, if the TRAB receives a request from the applicant for the withdrawal of his application for review and adjudication after it has rendered its decision or ruling, the validity of the review and adjudication decision or ruling shall not be affected.

  Article 41 When the tribunal hears a case it shall keep written record of the proceedings, which shall be signed by the members of the tribunal. If a member of the tribunal has a dissenting opinion, such opinion shall be truthfully entered into the record of the proceedings.

  Once the hearing of a case has been completed, the TRAB shall render its decision or ruling according to law.

  Article 42 The decisions and rulings rendered by the TRAB shall clearly state the following:

  1. the review and adjudication claims and the facts and grounds concerning the dispute;

  2. the facts, grounds and applicable legal basis determined in the decision or ruling;

  3. the conclusions reached in the decision or ruling;

  4. the follow-up procedures available to the parties and time limits thereon; and

  5. the date of the decision or ruling.

  The members of the tribunal shall sign, and the seal of the TRAB shall be affixed to, the written decision or ruling.

  Article 43 In cases where a party was dissatisfied with the decision or ruling rendered by the TRAB and instituted proceedings in a people's court and the people's court ruled to remand the case for renewed review and adjudication, the TRAB shall form another tribunal to review and adjudicate the case anew.

  Article 44 If within the statutory time limit no party institutes proceedings in a people's court in respect of a decision or ruling rendered by the Trademark Review and Adjudication Board, the decision or ruling shall become legally valid.

  PART FOUR OPEN HEARINGS

  Article 45 Based on a party's request or actual need, the TRAB may decide to conduct an open hearing in respect of the application for review and adjudication.

  Article 46 If a party requests an open hearing, he shall furnish the specific reasons why such an open hearing is necessary.

  Article 47 If requested by a party, the TRAB may decide to conduct an open hearing in the following cases that involve two parties:

  1. a party requests that a cross-examination or debate involving important evidence be conducted face to face with the other party; or

  2. it is necessary to obtain a statement from or to cross-examine a witness who has provided important testimony.

  Article 48 If the applicant intends to request an open hearing, he shall make such request in writing to the TRAB within 15 days from the date of receipt of the duplicate of the respondent's written defence. If the respondent intends to request an open hearing, he shall do so when submitting his written defence or when providing relevant supplementary exhibits to the Trademark Review and Adjudication Board.

  Article 49 The TRAB may decide to conduct an open hearing ex officio if:

  1. it is necessary for the parties to conduct cross-examinations or a debate face to face in order to determine important evidence;

  2. it is necessary to cross-examine or question a witness who has provided testimony in order to determine important evidence; or

  3. another circumstance requires the conduct of an open hearing.

  Article 50 If the TRAB deems it necessary, it may decide to conduct a new open hearing in a case where such a hearing has already been conducted.

  Article 51 An open hearing shall examine the exhibits that have been submitted and exchanged by the parties to and through the Trademark Review and Adjudication Board.

  Article 52 Once it has decided to conduct an open hearing, the tribunal shall notify the parties and the other participants in writing 15 days prior to the hearing, informing them of the date and venue thereof, the members of the tribunal, etc.

  Article 53 The parties shall deliver the acknowledgment of receipt of the notice of an open hearing to the TRAB three days prior to the hearing. If the review and adjudication applicant neither submits within the time limit the acknowledgment of receipt, specifying his response as to whether or not he will participate in the open hearing, nor participates in the open hearing, his review and adjudication application shall be deemed to have been withdrawn, the review and adjudication procedure shall be terminated and the TRAB shall close the case and notify the applicant in writing thereof. If the review and adjudication applicant responds before the expiration of the time limit that he will not participate in the open hearing or if the respondent neither submits the acknowledgment of receipt within the time limit nor participates in the open hearing, the TRAB may conduct the review and adjudication procedure by default.

  Article 54 The acknowledgment of receipt of a notice of an open hearing shall be signed or sealed by the party concerned. If a party indicates that he will participate in the open hearing, he shall state on the acknowledgment of receipt the name(s) and position(s) of the person(s) he has appointed to participate in such hearing. If a party has engaged a trademark agency to participate in the open hearing, he shall state on the acknowledgment of receipt the name(s) of the trademark agent(s) who will participate in such hearing.

  If a party requests that a witness who has given testimony be present to give evidence concerning his testimony, the said party shall state on the acknowledgment of receipt of the notice of an open hearing the name of the witness, information sufficient to determine his position and the facts to be proved. Witnesses not indicated on the acknowledgment of receipt of the notice of an open hearing may not attend such hearing to give evidence.

  Article 55 No party may appoint more than four persons, including the agents from the trademark agency that he has engaged, to participate in an open hearing. If a party is to have more than one person participating in the open hearing, he shall designate one of them to deliver the important statements in the capacity of principal spokesperson.

  Article 56 Before the commencement of an open hearing, the TRAB may convene a pre-hearing preparatory meeting at which both sides are present so as to hear the parties' opinions concerning the relevant facts and exhibits and to determine the main issues requiring investigation through the open hearing.

  The tribunal shall make a written record of the opinions stated by the parties at the preparatory meeting held prior to the open hearing. The parties shall verify that such record is accurate and sign the same.

  Article 57 At the commencement of the open hearing, the tribunal shall check the identification documents of the participants and confirm whether or not they are qualified to participate in the hearing. In addition, the tribunal shall ascertain whether or not the parties and the other review and adjudication participants are present.

  Article 58 Before the investigation by open hearing commences, the tribunal shall briefly state the basic circumstances of the case and clarify the main issues in the parties' dispute. Thereafter, the investigation by open hearing shall commence.

  Article 59 Investigations by open hearing shall be conducted in accordance with the following procedure:

  1. the applicant states his claims and makes a brief statement on the relevant facts and evidence;

  2. the respondent offers his defence;

  3. the tribunal verifies the claims and grounds in the case as well as the exhibits provided by each party;

  4. the applicant expounds the grounds for his claims and the facts and evidence on which they are based; and

  5. the respondent cross-examines the applicant and offers counter-evidence, and the applicant cross-examines the respondent on his counter-evidence.

  Article 60 In a case conducted through an open hearing, evidence shall be produced, and the parties cross-examined thereon, during the hearing. Evidence that has not been the subject of cross-examination may not be used as a basis for determining the facts of the case. However, evidence that has been confirmed by the parties and placed on record at the preparatory meeting held prior to the open hearing may be used as a basis for determining the facts of the case following a statement to that effect by the tribunal at the open hearing.

  When cross-examination is carried out in respect of documentary evidence, physical evidence and audio-video reference materials, the parties shall have the right to require that the original document or physical object be produced, unless the original document or physical object no longer exists and there is evidence to prove that the copy of the document or reproduction of the physical object is identical to the original.

  Article 61 During cross-examination, the parties shall ask questions, give explanations and make rebuttals centring on the authenticity, relevance and lawfulness of the evidence and addressing the issue of whether the evidence has any probative force and, if so, to what extent.

  Article 62 Cross-examinations shall be conducted in accordance with the following procedure:

  1. the applicant produces his evidence, and the respondent cross-examines the applicant thereon; and

  2. the respondent produces his evidence, and the applicant cross-examines the respondent thereon.

  Article 63 The members of the tribunal may ask questions of the parties or the witnesses on the relevant facts and evidence, and may require the parties or witnesses to give explanations.

  If the tribunal permits, the parties may question the witnesses.

  When questioning a witness, a party may not use threatening or abusive language or adopt a threatening or abusive manner.

  Article 64 Witnesses may not sit in on the open hearing. When a witness is questioned, no other witnesses may be present.

  If the TRAB considers it necessary, it may request that a witness cross-examine another witness.

  Article 65 Once the investigation by open hearing has been concluded, oral arguments shall be conducted. The parties shall each state their opinions concerning the facts shown by the evidence, the issues under dispute and the issue of the application of law.

  If the parties do not dispute the evidence and facts in the case, the hearing may proceed directly to oral arguments, on the basis of the parties' confirmation of the evidence and facts.

  Article 66 Oral arguments shall be conducted in accordance with the following procedure:

  1. statement by the applicant;

  2. defence by the respondent; and

  3. argument among the parties.

  The members of the tribunal may ask questions during the oral arguments.

  Article 67 If, during the oral arguments, a party offers evidence that had previously been raised but was not investigated during the open hearing, the tribunal may declare the arguments suspended and resume the investigation through open hearing. The oral arguments shall continue after the conclusion of the investigation.

  Article 68 After the parties have fully argued their opinions, the tribunal shall take final statements from each party, first from the applicant and then from the respondent.

  Article 69 After the final statements have been made, the open hearing is concluded. The TRAB shall issue a ruling according to law within a certain period thereafter and serve the written ruling on the parties.

  Article 70 The tribunal shall enter all major matters concerning the open hearing into the written record of the same. Upon termination of the open hearing, the tribunal shall provide the written record to the parties to verify for accuracy. The parties shall have the right to demand that errors in the record be corrected. After the written record has been verified as accurate, it shall be signed by the parties and entered into the case file. If a party refuses to sign the written record, the tribunal shall note the same on the written record of the open hearing.

  For the purposes of the preceding paragraph, “major matters concerning the open hearing” shall include the following:

  1. the claims, grounds and evidence of the parties;

  2. the major facts agreed upon by both parties; and

  3. other major matters that need to be recorded.

  Article 71 Without the permission of the TRAB, no one may sit in on, photograph, record or videotape an open hearing.

  PART FIVE RULES OF EVIDENCE

  Article 72 When the applicant submits his application or the respondent submits his rebuttal to the TRAB, he shall submit exhibits in support thereof.

  Evidence shall include documentary evidence, physical evidence, audio-video materials, witness testimony, statements by the parties, expert conclusions, etc.

  Article 73 A party shall be responsible for providing evidence to support the facts on which his claims are based or the facts on which his rebuttal of the other party's claims is based.

  The absence of evidence, or the insufficiency of evidence to prove the facts alleged by a party, shall operate to the disadvantage of the party who bears the burden of proof.

  Article 74 If a party expressly acknowledges the facts of the case as stated by the other party, such other party shall not be required to provide evidence therefor.

  If one party states a fact and the other party neither acknowledges nor denies the same, such other party shall be deemed to have acknowledged such fact.

  If a party has appointed an agent to participate in the review and adjudication procedure, an acknowledgment by such agent shall be deemed an acknowledgment by the principal, unless the acknowledgment of a fact by an agent who has not been specifically authorized leads directly to the acknowledgment of the other party's claim. If a party is present but does not contradict an acknowledgment by his agent, he shall be deemed to have made the acknowledgment.

  If a party withdraws an acknowledgment before the arguments in an open hearing have been concluded and the other party consents thereto, or if there is sufficient evidence to prove that his acknowledgment was made under duress or was due to a major misunderstanding and does not conform to the facts, the other party shall not be released from the burden of proof.

  Article 75 The parties shall not bear the burden of proof for the following facts unless a party has sufficient counter-evidence to repudiate them:

  1. commonly known facts;

  2. facts presumed in law;

  3. facts that have been lawfully proved;

  4. facts presumed on the basis of the laws of day-to-day living experience; and

  5. other facts that lawfully are not required to be proved.

  Article 76 When a party submits documentary evidence to the TRAB, he shall provide the original documents, which may include originals and duplicates. If it is truly difficult to furnish an original document, a photocopy, photograph or excerpt verified as being faithful to the original may be provided. If a reproduction, photocopy or excerpt of an original certificate kept by the relevant authority is provided, its source shall be indicated and the said authority shall be caused to affix its seal to the reproduction, photocopy or excerpt after it has verified the same as being in order.

  Article 77 When a party submits physical evidence to the TRAB, he shall provide the original object. If it is truly difficult to provide the original object, a reproduction that has been verified as being faithful to the original or other evidence that can serve as proof of the said physical evidence such as a photograph, video recording, etc. may be provided. If the original object consists of a relatively large number of fungibles, a portion thereof shall be submitted.

  Article 78 When a party submits computer data or audio-video reference materials such as sound recordings, video recordings, etc. to the TRAB, the following requirements shall be met:

  1. the relevant materials shall be submitted on their original media, except that if it is truly difficult to submit them on the original media, reproductions may be submitted;

  2. the method and time of production, the producer and the facts proved shall be clearly stated; and

  3. a transcript of the audio content shall be supplied with any audio material.

  Article 79 Witness testimony submitted by a party to the TRAB shall meet the following requirements:

  1. it clearly states basic particulars such as the name, age, sex, domicile, work unit or profession, etc. of the witness;

  2. it has been signed by the witness, or, if the witness is unable to sign his name, it has been certified by a method such as the affixing of a seal;

  3. it clearly indicates the date on which it was given; and

  4. a document evidencing the identity of the witness, such as a photocopy of his resident identity card, etc., has been attached.

  Article 80 An expert conclusion submitted to the TRAB by a party shall state the appointing party and the matters entrusted to expert evaluation, the relevant materials submitted to the expert evaluation organization, the basis of the expert evaluation and evidence of the qualifications of the expert evaluation organization and the expert evaluators. In addition, the expert evaluators shall sign, and the expert evaluation organization shall affix its seal to, such expert conclusion. Expert conclusions obtained through analysis shall include an explanation of the analytical process.

  Article 81 If the evidence submitted by a party to the TRAB originates outside the territory of the People's Republic of China, such evidence shall be certified by a notarial authority of the country in which it is located and legalized by the embassy or consulate of the People's Republic of China resident in such country. Alternatively, the evidence shall be certified in accordance with the procedures stipulated in the relevant treaty concluded between the People's Republic of China and the country in which the evidence is located.

  If a party intends to submit to the TRAB evidence originating from Hong Kong, Macao or Taiwan, the relevant certification procedures shall be carried out.

  Article 82 If documentary evidence or explanatory materials submitted by a party to the TRAB are in a foreign language, the same shall be accompanied by a written Chinese translation thereof. If a party submits evidence in a foreign language and fails to provide a written Chinese translation thereof, such foreign language evidence shall be deemed not to have been submitted.

  If the other party objects to the specific contents of a written translation, he shall provide a written Chinese translation of the portion to which he objects. If necessary, an agency acceptable to both parties may be engaged to translate the entire document, the portion to be used or the portion concerning which the objection was raised.

  Ifthe parties fail to reach agreement on the translator to be engaged, the TRAB may appoint a professional translation agency to translate the entire document, the portion to be used or the portion concerning which the objection was raised.The parties shall each pay 50% of the costs incurred for the translation; if a party refuses to pay his share of the translation costs, he shall be deemed to have confirmed the translation submitted by the other party.

  Article 83 The TRAB may investigate and collect evidence that:

  1. involves facts that could damage the interests of the State or the public interest; or

  2. involves procedural matters such as termination of the review and adjudication procedure, challenge of an adjudicator, etc. that are unrelated to the substance of the dispute.

  Article 84 Whether or not any single piece of evidence has probative force and, if so, to what extent, may be determined by examining:

  1. whether the evidence is the original document or original object and whether any photocopy or reproduction is faithful to the original;

  2. whether the evidence is relevant to the facts of the case;

  3. whether the form and source of the evidence meet legal requirements;

  4. whether the contents of the evidence are true; or

  5. whether the witness or the person providing evidence has a material interest in either party.

  Article 85 The adjudicators shall make a comprehensive examination and judgment in respect of all the evidence in the case based on aspects such as the degree of relevance of each piece of evidence to the facts of the case, the relationship between the pieces of evidence, etc.

  Article 86: Evidence that was obtained by infringing upon the lawful rights and interests of a third party or by violating prohibitive provisions contained in law may not be admitted as a basis for confirming the facts of a case.

  Article 87: The following pieces of evidence may not independently serve as a basis for determining the facts of a case:

  1. testimony offered by a minor that is incompatible with his age and intellect;

  2. testimony favourable to a party that is offered by a witness that has a family relationship or institutional link or is otherwise closely related with such party, or testimony unfavourable to a party that is offered by a witness who has an adverse relationship with such party;

  3. testimony of a witness who should have testified at the open hearing but failed to do so without legitimate cause;

  4. audio-video materials whose integrity is difficult to establish;

  5. photocopies or reproductions that are impossible to verify against the originals;

  6. exhibits that have been altered by either party or a third party and that the other party refuses to accept; or

  7. other pieces of evidence that may not independently serve as a basis for confirming the facts of the case.

  Article 88: When giving testimony, witnesses shall objectively state the facts of which they have first hand experience and may not use language that is conjectural, deductive or in the nature of a commentary.

  Persons who are unable to accurately express their will may not serve as witnesses.

  Article 89: If a party offers any of the evidence set forth below and the other party objects thereto but provides insufficient counter-evidence to refute the same, the TRAB shall confirm its probative force:

  1. the originals of documentary evidence, or photocopies, photographs or duplicates of or extracts from such original documentary evidence that have been verified to be faithful thereto;

  2. originals of physical evidence, or reproductions, photographs or videotaped materials of original physical evidence that have been verified to be faithful thereto; or

  3. audio-video materials that are corroborated by other evidence, were obtained by lawful means and are incontrovertible or copies of such audio-video materials that have been verified to be faithful thereto.

  Article 90: If a party has engaged an expert evaluation organization to issue an expert evaluation and the other party has no counter-evidence, or grounds on which to refute the same, the probative force of such evaluation may be confirmed.

  Article 91: If the evidence produced by either party is accepted by the other party or if the counter-evidence produced by such other party is insufficient to refute the same, the TRAB may confirm its probative force.

  If the evidence produced by either party is challenged by the other party, such other party produces counter-evidence to refute the same and the first party accepts such counter-evidence, the probative force of such counter-evidence may be confirmed.

  Article 92: If the parties each produce mutually contradictory evidence in respect of the same fact but neither party has sufficient basis to refute the evidence produced by the other party, the TRAB shall, in light of the circumstances of the case, judge whether the probative force of the evidence submitted by one party is significantly greater than that of the evidence provided by the other party, and confirm the evidence with the greater probative force.

  If it is difficult to determine the facts of the dispute because it is impossible to reach a judgment on the probative force of the evidence, the TRAB shall reach a judgment based on the principle of allocating the burden of proof.

  Article 93: The TRAB shall confirm any facts acknowledged or evidence accepted by a party in his written application, written defence or statements or in the statements of his agents during the review and adjudication procedure that are unfavourable to such party, unless he retracts, and produces sufficient counter-evidence to refute, the same.

  Article 94: If a party provides only statements made by himself, but fails to produce other relevant evidence, in support of an assertion made by him, his assertion shall not be upheld, unless the same is accepted by the other party.

  Article 95: The TRAB may determine the probative force of several pieces of evidence produced to support the same fact by relying on the following principles:

  1. official documents issued ex officio by State authorities or other functional departments take precedence over other documentary evidence;

  2. expert conclusions, archived materials and notarized or registered documentary evidence take precedence over other documentary evidence, audio-video materials and witness testimony;

  3. original documents or physical objects take precedence over copies thereof;

  4. expert conclusions of statutory expert evaluation organizations take precedence over expert conclusions of other expert evaluation organizations;

  5. primary evidence takes precedence over hearsay evidence;

  6. other witness testimony takes precedence over testimony that is favourable to a party offered by a witness who has a family relationship or is otherwise closely related with such party;

  7. testimony offered by witnesses who participated in the open hearing takes precedence over testimony from witnesses who did not participate in the open hearing; and

  8. several pieces of evidence of different types whose content is consistent take precedence over a single stand alone piece of evidence.

  PART SIX TIME PERIODS AND SERVICE

  Article 96: Time periods include statutory time periods and time periods set by the TRAB.

  Time periods shall be calculated in days, months and years. The date on which a time period commences shall not be calculated as part of the time period.

  If the final day of a time period is a holiday or rest day, the date of expiration of the time period shall be the first working day after the holiday or rest day.

  Article 97: The date on which a party files documents or materials with the TRAB shall be the date of delivery in the case of direct delivery and the date of the postmark affixed at the time of mailing in the case of filing by mail. If the postmark date is unclear or if there is no postmark, then the date of filing shall be the date of actual receipt by the TRAB, unless the party is able to provide evidence of the actual postmark date.

  Article 98: Documents from the TRAB may be served on the parties by mail, direct delivery or otherwise. Where a party has appointed a trademark agency, documents served on the trademark agency shall be deemed to have been served on such party.

  The date on which a document from the TRAB is served on a party shall be the date of the postmark affixed at the time of receipt by the party in the case of service by mail. If the postmark date is unclear, if there is no postmark or if the document is not returned by the post office, then the document shall be deemed to have been served on the party following the lapse of 15 days from the date of sending. In the case of direct delivery, the date of service shall be the date of delivery. If it is impossible to mail the document or to deliver it directly, it may be served on the party by public announcement, in which case it shall be deemed to have been served on the party following the lapse of 30 days from the date of issuance of the public announcement.

  PART SEVEN SUPPLEMENTARY PROVISIONS

  Article 99: If any of the circumstances set forth in Article 4, Article 5, Article 8, the first paragraph of Article 9, Items (2), (3) and (4) of the first paragraph of Article 10, the second paragraph of Article 10, Article 11, Article 12, Article 13, Article 15, Article 16, Article 24, Article 25 and Article 31 of the amended Trademark Law arose prior to the implementation on 1 December 2001 of the decision to amend the Trademark Law, and the case is reviewed and adjudicated by the TRAB after the implementation of the decision to amend the Trademark Law, the review and adjudication procedure shall be conducted in accordance with the relevant provisions of the amended Trademark Law. In all other circumstances that arose prior to the implementation on 1 December 2001 of the decision to amend the Trademark Law, the TRAB shall apply the relevant provisions of the pre-amended Trademark Law when conducting review and adjudication procedures.

  Article 100: If a dispute relating to a trademark that had been registered for one year or more at the time of implementation of the decision to amend the Trademark Law arises and a party applies to the TRAB for review and adjudication, the time limit for submission of applications specified in the second paragraph of Article 27 of the pre-amended Trademark Law shall apply to the handling thereof. If a dispute relating to a trademark that had been registered for less than one year at the time of implementation of the decision to amend the Trademark Law arises and a party applies to the TRAB for review and adjudication, the time limit for submission of applications specified in the third paragraph of Article 41 of the amended Trademark Law shall apply to the handling thereof.

  If any work unit or individual submitted an application for review and adjudication under Article 27 of the pre-amended Trademark Law and Article 25 of its implementing rules before the implementation of the decision to amend the Trademark Law and such application falls under any of the circumstances described in Article 13, Article 15, Article 16 and Article 31 of the amended Trademark Law, the time limits specified in the second paragraph of Article 41 of the amended Trademark Law for the submission of applications for review and adjudication shall not apply.

  Article 101: Where a pending case accepted prior to the implementation of the decision to amend the Trademark Law does not fall within the scope of cases that can be reviewed and adjudicated by the TRAB as defined in Article 28 of the Implementing Regulations, the TRAB shall return the application and notify the applicant in writing, stating the grounds therefor.

  Article 102: Where, prior to the implementation of the decision to amend the Trademark Law, a case was accepted for renewed review and adjudication pursuant to Articles 34 and 35 of the Trademark Review and Adjudication Rules published by the State Administration for Industry and Commerce on November 2 1995 and falls within the scope of cases that can be reviewed and adjudicated by the TRAB as defined in Article 28 of the Implementing Regulations, the TRAB shall conduct the new review and adjudication procedure, and render a decision or ruling, in accordance with the amended Trademark Law and its Implementing Regulations, unless Article 99 or Article 100 hereof specifies that the relevant provisions of the pre-amended Trademark Law shall apply.

  Article 103: The formats for documents used in carrying out trademark review and adjudication related matters will be formulated and published by the State Administration for Industry and Commerce.

  Article 104: The TRAB shall establish an expert advisory group from which to seek advice on relevant issues encountered in trademark review and adjudication procedures.

  The expert advisory group shall be composed of several legal experts. Its members shall be engaged by the TRAB.

  Article 105: Before the implementation hereof, the TRAB shall continue to hear trademark review and adjudication cases in accordance with the procedures specified in the Trademark Review and Adjudication Rules published by the State Administration for Industry and Commerce on 2 November 1995. However, in the event of a conflict between the said Rules and the decision to amend the Trademark Law, the decision to amend the Trademark Law shall apply. In the event of a conflict between the said Rules and the Implementing Regulations after the implementation of the Implementing Regulations, the Implementing Regulations shall prevail. If a circular of the State Administration for Industry and Commerce contains other provisions in respect of the said Rules, matters shall be handled in accordance with the relevant circular.

  Article 106: The State Administration for Industry and Commerce is in charge of interpreting these Rules.

  Article 107: These Rules shall be implemented as of 17 October 2002. The Trademark Review and Adjudication Rules published by the State Administration for Industry and Commerce on 2 November 1995 shall be repealed simultaneously.

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