The principle of administrative litigation is to examine the legality of specific administrative acts, but the judicial review of trademark review is obviously different from the general administrative litigation in rationality review. Matters involved in trademark review, such as approximate judgment of trademarks, approximate judgment of goods or services, and judgment of trademark distinctiveness, are subjective and have great discretion, and there is no absolute right or wrong in most cases. The proportion of trademark approximation and commodity approximation in 20 13 years is 26% and 22% respectively, and the proportion of these two problems in 20 12 years is 24%. Judging from the trend, nearly half of trademark reexamination cases are lost because the examiners of the Trademark Review and Adjudication Board and the judges of the people's court disagree on the issues of trademark approximation and commodity approximation.

According to the usual theory of judicial review, it is generally believed that these "grey areas", whether characterized as discretionary acts or uncertain legal concepts, should be left to administrative organs with certain judgment room, which is the so-called "judicial privilege". Judging from the way people's courts examine these issues at present, they all regard them as the problem of finding out the facts of the case, and judges tend to use their own judgment to judge/replace the judgment of administrative staff. Judging from the depth of review, they are beyond the scope of "legality review" of general administrative actions and should belong to the scope of "rationality review".