The second amendment was made in accordance with the "Decision on Amending the Trademark Law of the People's Republic of China" at the 24th Meeting of the Standing Committee of the Ninth National People's Congress on October 27, 2001 Article 15 of the Trademark Law (hereinafter referred to as the Second Amendment of the Trademark Law) stipulates: “Without authorization, an agent or representative registers the trademark of the principal or represented person in his own name, and the principal shall Or if the represented person raises objections, registration will not be allowed and use will be prohibited. "This provision is intended to prohibit malicious registration behavior by agents or representatives. When the principal or represented person claims that an earlier trademark has been preemptively registered based on this provision, he or she must provide evidence to prove that the preemptively registered trademark belongs to him or her. The prior use by the principal or represented person is one of the ways to prove that the preemptively registered trademark belongs to him, but prior use is not a necessary condition for the application of Article 15 of the Second Amendment to the Trademark Law. . Even if the principal or represented person does not use the prior trademark, but there is other evidence that can prove that the prior trademark belongs to him, such as a company establishment agreement, partnership agreement, authorization document, etc., the agent or representative can still be determined to be a robber. Note the trademark of the principal or representative. Facts of the case The trademark opposed is graphic trademark No. 6735988 (pictured). An application for registration was filed by Zheng Jinfeng, a natural person from Hebei Province, on May 21, 2008. The designated products are Class 1 fertilizers, agricultural fertilizers, plant fertilizers, fertilizer preparations, Planting soil, flower pot soil, plant growth regulator, seaweed (fertilizer), peat (fertilizer), mixed fertilizer. During the announcement period for the preliminary approval of the opposed trademark, Beijing Feitian Fertilizer Company (hereinafter referred to as Feitian Company) filed a complaint with the Trademark Office of the State Administration for Industry and Commerce (hereinafter referred to as Trademark Office) filed an opposition application. On March 20, 2012, the Trademark Office made a ruling that Feitian Company’s objection was untenable and ruled that the opposed trademark should be approved for registration. On May 3, 2012, Feitian Company applied for reexamination to the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce (hereinafter referred to as the Trademark Review and Adjudication Board). The main reasons are: Zheng Jinfeng was a former employee of Feitian Company, and he and Yin Zhongqiu, the original shareholder of Feitian Company, were married. The two conspired to register Feitian Company’s prior trademark, violating Article 15 of the Second Amendment to the Trademark Law. . In order to prove its claim, Feitian Company submitted the following evidence: Zheng Jinfeng’s ID card, work badge, attendance sheet, invoice, remittance voucher, partnership agreement, dissolution agreement, witness testimony; packaging, trademark and signage printing certificate, Feitian Company’s exhibition invoice, use signage, sales contracts, distribution agreements, relevant media reports, etc. On October 28, 2013, the Trademark Review and Adjudication Board made ruling No. 97535. The ruling held that: The evidence submitted by Feitian Company could not show that Feitian Company had previously used the same or similar trademark as the opposed trademark before the application date of the opposed trademark. Therefore, Feitian Company's objection to the opposed trademark violated Article 10 of the Second Amendment to the Trademark Law. The grounds for review under the circumstances mentioned in Article 5 lack factual basis and will not be supported. In accordance with Articles 33 and 34 of the second revised Trademark Law, the Trademark Review and Adjudication Board ruled that the opposed trademark should be approved for registration. Separate investigation revealed that on March 2, 2008, Ren Jinying, Liu Shichuan, Xue Xiuhai, Yin Zhongqiu, and Gao Fulin agreed to each invest 150,000 yuan to establish Feitian Company, a partnership. Feitian Company was established on April 3, 2008. On November 1, 2008, all parties signed a dissolution agreement. On November 2, 2008, Liu Shunxin signed a note on behalf of Feitian Company stating that "the handover of everything in the factory has been completed and verified to be correct." Yin Zhongqiu and Zheng Jinfeng are husband and wife, and Zheng Jinfeng filed an application for registration of the opposed trademark. On May 11, 2010, Gao Fulin, Liu Shichuan, Liu Shunxin, Xu Xiangyu, and Liu Jipeng issued a "certificate" to the Trademark Office stating that Feitian Company has been using the opposed trademark graphics on the fertilizers it produces and operates since its establishment; the opposed trademark graphics The logo was designed by Liu Shichuan and Yin Zhongqiu. The purpose of the design is to use it as a trademark on Feitian Company’s upcoming fertilizer. Zheng Jinfeng claimed that the graphic logo of the opposed trademark was designed jointly by Yin Zhongqiu and his wife. Feitian Company was dissatisfied with the Trademark Review and Adjudication Board’s ruling No. 97535 and filed an administrative lawsuit with the Beijing No. 1 Intermediate People’s Court. Judgment: Beijing No. 1 Intermediate People's Court held that Feitian Company should submit evidence to prove that it had previously used a trademark that is identical or similar to the opposed trademark before the application date of the opposed trademark.

However, Feitian Company’s evidence was not enough to prove that before the application date of the opposed trademark, Feitian Company had already used a trademark that was identical or similar to the opposed trademark. Therefore, Feitian Company’s claim that the opposed trademark violates Article 15 of the Second Amendment to the Trademark Law lacks factual and legal basis and is not supported. In accordance with the provisions of Article 54 (1) of the Administrative Litigation Law of the People's Republic of China, the judgment is: Ruling No. 97535 is upheld. Feitian Company was dissatisfied and appealed to the Beijing Higher People's Court. The Beijing Higher People's Court ruled that the appeal was dismissed and the original judgment was upheld. Comment: The focus of this case is whether Feitian Company, as the right holder of the prior trademark, can claim that its trademark has been preemptively registered. Article 15 of the Second Amendment to the Trademark Law stipulates: “If an agent or representative registers the principal’s or represented person’s trademark in his or her own name without authorization, and the principal or represented person raises an objection, Registration is not allowed and use is prohibited. "According to the above provisions, the trademark registered by the agent or representative shall be the trademark belonging to the principal or represented person. If the earlier trademark has been approved for registration in another country, the ownership can be determined based on the trademark registration. If the prior trademark has not been registered, according to the "Trademark Examination and Trial Standards", the judgment can be based on the following factors: the principal's trademark stated in the contract or authorization document; if the parties have no agreement and the agency relationship has been determined, the principal A trademark that has been previously used by a person on the goods for which the agent is an agent; if the parties have not agreed, if the trademark used by the agent on the goods for distribution by the agent is sufficient to cause the relevant public to think that the trademark is used by the agent's own advertising and publicity, etc. A trademark is a sign that distinguishes the agent's goods from the goods of others, and is regarded as the agent's trademark; the trademark previously used by the represented person; and other trademarks that belong to the represented person according to law. It should be noted that the ownership of a trademark is not the same as the ownership of the trademark mark itself. The ownership of a trademark reflects the control of the use of the trademark on goods. The determination of trademark ownership should first be based on the agreement between the parties. When there is no agreement or the agreement is unclear, prior use will be used as favorable evidence to determine that the prior trademark belongs to the owner. Generally speaking, prior use can generally be used to infer that the trademark belongs to the owner. In the case where there is neither agreement nor usage, other evidence is needed to prove it. Therefore, prior use is not a necessary condition for determining the ownership of a preemptively registered trademark. Although Article 15 of the Second Amendment to the Trademark Law does not require that the principal or represented person’s trademark has been used in China, it does require proof that the trademark belongs to the principal or represented person. The application for the opposed trademark in this case was made on May 21, 2008, later than the establishment of Feitian Company. However, because the relevant parties did not negotiate and reach an agreement in advance on the application for registration of the opposed trademark, and there was no agreement on the application for registration of the opposed trademark. Even if Feitian Company uses the opposed trademark, in the absence of other evidence to support it, it cannot be automatically determined that it is the prior right holder of the opposed trademark. The purpose of the Trademark Review and Adjudication Board and the original court's determination of Feitian Company's prior use of the opposed trademark was to determine whether Feitian Company had prior rights to the trademark. The facts and conclusions they determined were not inappropriate and shall be upheld. Based on the above reasons and because Feitian Company’s evidence was insufficient to prove that the opposed trademark belonged to it, the court of second instance made the above judgment.