Where a registered trademark violates the provisions of Articles 13, 15, 16 and 31 of this Law, the trademark owner or interested party may request the Trademark Review and Adjudication Board to make a ruling to cancel the registered trademark within five years from the date of trademark registration. For malicious registration, the owner of a well-known trademark is not limited by five years.
In addition to the provisions of the preceding two paragraphs, if there is a dispute over a registered trademark, it may apply to the Trademark Review and Adjudication Board for a ruling within five years from the date when the trademark is approved for registration.
After receiving the application for ruling, the Trademark Review and Adjudication Board shall notify the parties concerned and file a reply within a time limit.
Interpretation of this article is about the handling of improperly registered disputed trademarks.
This article is divided into four paragraphs, which respectively stipulate the handling of trademarks that violate Articles 10, 11, 12, 13, 15, 16 and 31 of this Law, or are registered by fraudulent means, and the handling of disputes over registered trademarks. The situation stipulated in this article first occurred because trademark registration violated the law. There are many reasons, including trademark registrant and trademark examiner. Although there are legal standards and objective conditions for trademark examination, it is still difficult to avoid human factors such as mistakes, deception and mistakes in practice. However, in order to maintain the order of market economy, no matter what causes improper trademark registration, it should be corrected.
The first paragraph of this article stipulates two situations that lead to improper trademark registration. First, it violates Articles 10, 11 and 12 of this Law. Article 10 of the law stipulates the signs whose use is prohibited by trademarks, that is to say, the signs listed in this article can be registered as trademarks or not, mainly for the consideration of social interests. Article 1 1 of the law stipulates that three kinds of marks may not be registered as trademarks, but the listed marks can be registered if they are significant and easy to identify after use, which makes clear the significance of trademarks. Article 12 of this law stipulates that an application for registration of a trademark with a three-dimensional mark shall not be registered only on the basis of the nature of the commodity itself, the shape of the commodity required to obtain a technical effect or the shape that makes the commodity have substantial value. If a registered trademark violates these regulations, there are two ways to deal with it. First, the Trademark Office revoked the registered trademark ex officio. Second, other units or individuals may also request the Trademark Review and Adjudication Board to make a ruling to cancel the registered trademark. This paragraph also clearly stipulates the handling of trademark registration obtained by deception or other improper means. Obtaining registration by deception or improper means generally refers to fabricating, concealing the truth or forging application documents and related documents for registration, such as forging business license, changing business scope, fabricating false application items, etc. These acts violate both the trademark law and the principles of civil law, and the registered trademark right obtained by them is illegal. This paragraph stipulates that the Trademark Office shall revoke the registered trademark ex officio or other units or individuals shall request the Trademark Review and Adjudication Board to make a ruling to revoke the registered trademark. There is no time limit for revoking a registered trademark stipulated in this paragraph, and it can be revoked once it is discovered.
Paragraph 2 of this Article stipulates that if a registered trademark violates the provisions of Articles 13, 15, 16 and 31 of this Law, the trademark owner or interested party shall request the Trademark Review and Adjudication Board to cancel the registered trademark within five years from the date of trademark registration, and the five-year period does not apply to the malicious registration of well-known trademarks. Among them, Article 13 is about not violating the principle of good faith and registering other people's well-known trademarks by copying, imitating or translating. Article 15 provides that an agent or representative shall not register the trademark of the principal or representative in his own name without authorization. Article 16 is about not using geographical indications illegally in trademarks. Article 31 is about not infringing upon the lawful prior rights of others, such as the patent right of design, the right of citizen portrait, the right of name, the copyright of citizen legal person, the right of manufacturer name and the right of name. , or preemptively register trademarks that have been used by others and have certain influence by unfair means. In the latter case, it is obvious that the trademarks already used by others actually take care of the unregistered trademarks that have been used to some extent. Because most of the illegal acts in this paragraph are civil rights disputes, this paragraph does not give the Trademark Office the right to directly revoke the registered trademark, but stipulates that the trademark owner or interested party may, within five years from the date of trademark registration, make a ruling request to the Trademark Review and Adjudication Board to revoke the registered trademark. If a well-known trademark is registered in bad faith, the owner of the well-known trademark can pursue it indefinitely, without being limited by five years.
The third paragraph of this article stipulates that, except for the cases specified in the preceding two paragraphs, if there is a dispute over a registered trademark, it may apply to the Trademark Review and Adjudication Board for ruling within five years from the date when the trademark is approved for registration. According to this regulation, if the owner of a registered trademark finds that the registered trademark is the same as or similar to its earlier registered trademark, causing misunderstanding among consumers and harming their rights and interests, he may file an application for adjudication of disputes within the statutory time limit, and the Trademark Review and Adjudication Board shall accept it.
The fourth paragraph of this article stipulates the review procedure of the Trademark Review and Adjudication Board. First of all, the Trademark Review and Adjudication Board is the statutory body responsible for adjudicating registered trademark disputes in China, and it is the duty of the Trademark Review and Adjudication Board to adjudicate registered trademark disputes. Secondly, applying to the Trademark Review and Adjudication Board for adjudication of disputes must comply with the statutory time limit. According to the provisions of the second and third paragraphs of this article, except in special circumstances (malicious cybersquatting of other people's well-known trademarks), the Trademark Review and Adjudication Board shall accept the application for adjudication of disputes within five years from the date of approval and registration of the disputed trademark. Any unit or individual who finds any of the circumstances specified in the first paragraph may directly apply to the Trademark Review and Adjudication Board for a ruling to cancel the registered trademark.
After receiving the application for ruling, the Trademark Review and Adjudication Board shall conduct an examination. Those who meet the acceptance conditions stipulated in this law shall accept it, notify the parties concerned and give a reply within a time limit. Notifying the parties refers to notifying the parties to participate in the arbitration activities in accordance with the prescribed time, manner and requirements in some form of documents. Defense is a necessary procedure in adjudication and an important right of the parties. The Trademark Review and Adjudication Board must ensure that both parties exercise their rights equally in the review activities. If the parties fail to submit the defense on time or refuse to reply, the ruling will proceed as usual and will not be affected.
Article 42 A trademark that has been challenged and ruled before its registration is approved may not apply for ruling on the same facts and reasons.
Interpretation of this article is about prohibiting repeated application for an award with the same facts and the same reasons.
According to the relevant provisions of this law, any person may raise an objection to the preliminarily approved trademark within three months from the date of announcement. Where an objection is raised to a trademark that has been preliminarily examined and announced, the Trademark Office shall listen to the facts and reasons stated by the objector and the objector and make a ruling after investigation and verification. If a party refuses to accept the decision, he may also apply to the Trademark Review and Adjudication Board for reexamination according to law, and the Trademark Review and Adjudication Board will make a reexamination ruling. If a party refuses to accept the ruling of the Trademark Review and Adjudication Board, he may also receive the notice himself. In this way, the registered trademark has completed all the administrative and judicial review procedures for the reasons and facts put forward by the dissidents before completing the approval and registration procedures. This objection procedure is open to all units and individuals within three months after the announcement of preliminary examination. Therefore, the protection of the rights of any potential opponent is stipulated by law, and this legal protection procedure runs through all administrative and judicial remedies. After the registration of a registered trademark is approved, if any unit or individual objects to the trademark and makes a ruling during the preliminary examination and approval announcement before the registration is approved, the Trademark Review and Adjudication Board will not accept the application for ruling on the same facts and reasons. This is because the facts and reasons on which the objection ruling is based are confirmed through statements, debates, investigation and verification, and in some cases, through judicial procedures. If the Trademark Office, the Trademark Review and Adjudication Board and the judicial organ make a ruling on the same fact and reason again, it will not only have no practical significance, but also cause the loss of manpower, material resources and financial resources, cause procedural confusion and lead to the loss of the final ruling of objection.
The condition for prohibiting any unit or individual from applying for an award is whether to "apply for an award again on the same facts and reasons". Therefore, even if the ruling applicant and the objection ruling applicant are not the same unit or individual, the relevant authorities should not accept it. As for the "facts and reasons are the same" as stipulated in this article, it can be the situation stipulated in Article 41 of this Law or other circumstances. As long as the registered trademark has been challenged and ruled before the registration is approved, it means that the relevant procedures have been completed, and this article prohibits further application for ruling.
Article 43 After the Trademark Review and Adjudication Board decides to maintain or cancel a registered trademark, it shall notify the parties concerned in writing.
If a party refuses to accept the ruling of the Trademark Review and Adjudication Board, he may bring a lawsuit to the people's court within 30 days from the date of receiving the notice. The people's court shall notify the other party to the trademark adjudication procedure to participate in the proceedings as a third party.
Interpretation of this article is about the notification obligation and judicial relief ruled by the Trademark Review and Adjudication Board.
This article is divided into two paragraphs. The first paragraph stipulates that after the Trademark Review and Adjudication Board decides to maintain or cancel a registered trademark, it shall notify the parties concerned in writing of the decision. Prior to this amendment, China's Trademark Law stipulated that the ruling of the Trademark Review and Adjudication Board was final and the parties could not seek relief again. After China's accession to the World Trade Organization (WTO), in order to link up with the judicial relief procedures in the relevant agreements of the organization, this revision of the Trademark Law stipulates that the ruling of the Trademark Review and Adjudication Board is not final, and the parties who are dissatisfied with its ruling can also seek judicial protection and bring a lawsuit. At the processing stage of the Trademark Review and Adjudication Board, the Trademark Review and Adjudication Board may decide to maintain a registered trademark. The ruling of maintaining a registered trademark means that the Trademark Review and Adjudication Board decides to maintain the exclusive right to use a registered trademark. That is to say, according to the adjudication procedure, the Trademark Review and Adjudication Board considers that the objection to a registered trademark is insufficient, and that the registration of a specific trademark conforms to the provisions of the Trademark Law, and may make an adjudication to maintain the registered trademark, and notify the relevant parties of the adjudication in time. A case in which the Trademark Review and Adjudication Board decides to revoke a registered trademark means that the Trademark Review and Adjudication Board decides to revoke the exclusive right to use a registered trademark. That is to say, the Trademark Review and Adjudication Board shall, in accordance with the adjudication procedure, confirm the reasons and facts put forward by the registered trademark dissenter or the ruling applicant, and may make a ruling to revoke the registered trademark, and notify the parties concerned of the ruling in time.
Paragraph 2 of this article stipulates that if a party refuses to accept the ruling of the Trademark Review and Adjudication Board, he may bring a lawsuit to the people's court within 30 days from the date of receiving the notice. The prosecution here should belong to administrative litigation. According to the provisions of China's administrative procedure law, citizens, legal persons or other organizations have the right to bring a lawsuit to the people's court in accordance with the administrative procedure law if they think that the specific administrative acts of administrative organs and their staff infringe upon their legitimate rights and interests. The ruling made by the Trademark Review and Adjudication Board fails to confirm the legitimate requirements put forward by the dissenter or the applicant according to the facts and reasons or to revoke the registered trademark of the party concerned, which is the reason for the party concerned to bring an administrative lawsuit to the people's court. The time for bringing a lawsuit is within 30 days from the date of receiving the notice of ruling, and the people's court shall notify the other party to the trademark ruling procedure to participate in the lawsuit as a third party. It should be pointed out that Article 2 of the Law clearly states that the administrative department for industry and commerce of the State Council shall set up a Trademark Review and Adjudication Board to handle trademark disputes. Therefore, the Trademark Review and Adjudication Board is a statutory organ, and its ruling is a specific administrative act. Therefore, if a party refuses to accept the ruling made by the Trademark Review and Adjudication Board, he may bring an administrative lawsuit to the Trademark Review and Adjudication Board. After trial, the people's court held that the ruling of the Trademark Review and Adjudication Board was correct and should be upheld. If the decision to revoke a registered trademark is upheld, it shall be handed over to the Trademark Office for cancellation.