In order to implement the third revised "Trademark Law" that will be implemented on May 1, 2014, the State Council has revised the "Regulations on the Implementation of the Trademark Law" (hereinafter referred to as the "Regulations"). The newly revised "Regulations" make a number of provisions to facilitate parties, and refine some relevant provisions of the new "Trademark Law" to make it easier to operate and more conducive to the public to handle various trademark applications simply and quickly. The author believes that the newly revised "Regulations" in terms of convenience for parties mainly include the following contents:

First, it stipulates the application conditions for sound trademarks. The revised Trademark Law expanded the objects of protection, deleted the "visibility" requirement for registrable marks, and clearly included sound trademarks in the category of marks that can apply for registration. In order to comply with this provision, the newly revised Regulations clearly stipulate the conditions for applying for trademark registration with sound marks. These formal requirements mainly include: (1) It should be stated in the application; (2) The method of using the trademark; (3) Submit a sound sample that meets the requirements. According to the regulations of the Trademark Office, this sample should be in the form of a CD, the audio file should not exceed 5MB, and the format should be wav or mp3. If submitted in paper form, the audio file of the sound sample should be stored in a read-only CD; (4) Describe the sound trademark. If it is of a musical nature, the description can be in the form of staff or simplified notation, and additional text is required. Note: If the sound is of a non-musical nature and cannot be described in staff or simplified notation, it must be described in words; (5) The trademark description and the sound sample should be consistent.

The second is to clarify the meaning of the data message and how to determine the date when the data message format document reaches the competent authority and is delivered to the parties. The revised Trademark Law stipulates that relevant documents for trademark registration applications can be submitted in writing or in the form of data messages. The newly revised Regulations clearly define the data message method as the Internet method.

How to determine the date of submission of documents in the form of data messages or the date on which the Trademark Office and the Trademark Review and Adjudication Board will deliver documents to the parties in the form of data messages is an issue of common concern and has a great impact on the parties. The newly revised Regulations clearly stipulate this: the date of the document submitted by the party in the form of data message shall be the date when it enters the electronic system of the Trademark Office or Trademark Review and Adjudication Board; the Trademark Office and Trademark Review and Adjudication Board shall serve the party in the form of data message. , 15 days from the date of issuance of the document, it will be deemed to have been served on the party concerned.

The third is to clarify the operating procedures for applying for division. The revised Trademark Law stipulates the "one mark, multiple categories" system. In order to enable the applicant to apply for registration of goods or services that encounter legal obstacles in part, the parts that have not encountered obstacles will not be affected, continue the next step of the registration process, and establish the exclusive right to trademark as soon as possible, the "Regulations" specifically stipulate that Apply accordingly for the division system. If the Trademark Office rejects a trademark registration application on some designated goods, the applicant may divide the preliminary application in the application into another application, and the divided application will retain the filing date of the original application.

The fourth is to clarify the date calculation method for documents submitted through express delivery companies. The express delivery industry is booming, and it is increasingly common for applicants to handle trademark business through express delivery companies. The original Trademark Law and Regulations did not clearly stipulate how to determine the date of trademark registration documents submitted through express delivery companies. There are also different views in practice. In order to protect the rights of the parties and enable them to have clear and reasonable expectations for the arrival date of the documents, the revised Regulations stipulate that in addition to the application date for trademark registration, the date on which the parties submit documents or materials to the Trademark Office or the Trademark Review and Adjudication Board shall be determined by If submitted by an express delivery company other than a postal company, the date of collection and delivery by the express delivery company shall prevail.

The fifth is to improve the specific procedures for trademark objections. The revised Trademark Law has improved the trademark registration opposition system.

In order to implement this provision, the revised "Regulations" added the conditions for the acceptance and rejection of trademark opposition applications, stipulated that the Trademark Office's decision to deny registration includes the decision to deny registration on some designated goods, and clarified that the legal time limit for opposition procedures has expired. The principle for handling new evidence submitted by a later party is: if the evidence is generated after the expiration of the time limit or the party has other legitimate reasons for failing to submit it before the expiration of the time limit, if it is submitted after the expiration of the time limit, the Trademark Office may accept the evidence after handing it over to the other party and cross-examining it. .

The sixth is to clarify the specific requirements for trademark use license filing. The original Regulations stipulated that the licensor should submit a copy of the contract to the Trademark Office for filing within 3 months from the date of signing the trademark license contract. The first is to require the licensing contract to be reported to the Trademark Office for record, and the second is to require that the record application should be submitted within 3 months. In practice, many parties are reluctant to submit their commercial contracts to the competent authorities for filing, believing that they involve trade secrets. The three-month time limit requirement is relatively short for both parties, making it inconvenient for them to exercise their rights. The regulations were revised this time, changing "licensing contract filing" to "licensing filing", and also canceling the three-month time limit and replacing it with "the licensor shall file and submit filing materials to the Trademark Office within the validity period of the licensing contract." In addition, it is further clarified that the filing materials should describe the registered trademark licensor, licensee, license period, scope of licensed goods or services, etc.

In recent years, with the process of my country's economic marketization and the development of the trademark industry, the trademark agency industry has gradually developed and expanded, and the number of trademark agencies and trademark agents has continued to grow rapidly. As of April 30, 2014, there were 19,300 trademark agencies (including 8,282 law firms) registered with the Trademark Office to engage in trademark agency business. According to statistics, in the past five years, more than 95% of the national trademark registration applications each year have been submitted through trademark agencies. The trademark agency industry provides professional and meticulous services to Chinese enterprises in terms of trademark registration, early warning and rights protection, and legal consultation, etc., and plays a positive role in the sound and rapid development of my country's economy and society.

However, with the gradual saturation of market share and increasingly fierce competition, due to the serious shortage of high-quality trademark agents, some chaos has appeared in the agency industry. The main manifestations are: the overall quality of trademark agents has declined, and some Agents lack basic professional ethics; vicious competition in the industry is prominent, and the order of the trademark agency market is relatively chaotic; behaviors that damage the legitimate rights and interests of clients occur frequently, seriously disrupting the normal market economic order; trademark agents maliciously register other people's trademarks or hype them to have adverse effects Trademark cases happen from time to time. These problems have a bad impact and have strong social repercussions. Although the State Administration for Industry and Commerce and local industrial and commercial bureaus at all levels have worked hard to innovate regulatory measures and made some useful explorations and attempts, the results have not been very obvious. The main reason is that laws and administrative regulations lack management provisions for the trademark agency industry, making it difficult to achieve effective supervision.

In this regard, the newly revised Trademark Law and Trademark Law Implementing Regulations have formulated special provisions to strengthen the supervision of trademark agencies, adding the following important content:

First of all, clearly stipulate trademark agencies The principle of good faith must be followed, relevant trademark matters must be handled in accordance with the entrustment, and the agent's business secrets learned during the agency process must be kept confidential.

Secondly, strengthen the obligations of trademark agencies. First, if the trademark applied for registration by the client may be prohibited from registration under the Trademark Law, the trademark agency should clearly inform the client, which places higher requirements on the quality and ability of the trademark agency. Second, if a trademark agency knows or should know that the client's application for registered trademark is a case of preemptive registration, it shall not accept the entrustment. Third, the qualifications of trademark agencies applying for trademark registration are limited to prevent trademark agencies from using their own business advantages to maliciously register other people's trademarks, which is conducive to promoting the professional and standardized operation of trademark agencies.

Third, it clearly stipulates the responsibilities and penalties that trademark agencies should bear if they commit illegal acts, focusing on credit management and suspension of acceptance.

The Trademark Law stipulates illegal acts of trademark agency in an enumerated manner, and the Implementing Regulations of the Trademark Law are further detailed and have a relatively broad scope, basically covering easy and frequent illegal acts.

Both international trademark registration practice and judicial practice require improving the effectiveness of domestic legal norms related to international trademark registration.

After the "Trademark Law" was revised, in accordance with the provisions of Article 21, a special chapter on international registration of trademarks was added to the "Regulations for the Implementation of the Trademark Law" to stipulate the relevant contents of the international registration of trademarks in Madrid and achieve It has transformed international law into domestic law, which not only facilitates the practice of trademark authorities and judicial departments, but also helps trademark rights holders safeguard their own rights. It is of great significance to promote the Madrid system for international trademark registration and improve domestic applicants’ awareness of international trademark registration.

This chapter is based on the "Madrid Implementation Measures for International Registration", deletes some outdated provisions, and modifies and improves the provisions according to the development trend of international treaties and the revised Trademark Law. It mainly includes the following contents:

(1) Limits the international registration of trademarks applicable to this chapter, and clearly adjusts the international trademark registrations with China as the country of origin, applications for territorial extension designating China, and other related matters. Apply.

(2) Clarify the qualifications of applicants for international trademark registration with China as the country of origin, the conditions and basic procedures for filing applications for international trademark registration and subsequent applications, mainly involving the application of international treaties.

(3) Provisions are made on the review procedures for territorial extension applications designating China. If you want to protect a three-dimensional mark, color combination, or sound mark as a trademark, or request protection of a collective mark or certification mark, you should apply through a legally established trademark agency within 3 months from the date the mark is registered in the International Register of the International Bureau. Organization, submit relevant materials to the Trademark Office. If relevant materials are not submitted within the prescribed time limit, the Trademark Office will reject the application for territorial extension.

(4) Provisions are made on the objection procedure for territorial extension applications designating China. Since the Trademark Office conducts an ex officio review of the application for territorial extension designating China and does not separately announce the review conclusion, the time for filing an objection to an internationally registered trademark is also different from the provisions of Article 33 of the revised Trademark Law. For an application for territorial extension designating China, within 3 months from the first day of the month following the publication of the World Intellectual Property Organization's "International Trademark Announcement", the opponent who meets the conditions specified in Article 33 of the "Trademark Law" may apply to the Trademark Office Raise an objection.

(5) Provisions are made on the follow-up procedures related to the territorial extension application designating China, including renewal, transfer and deletion, which mainly involve the connection between domestic laws and international treaties. The validity period of an internationally registered trademark protected in China is calculated from the date of international registration or a later designated date. Before the expiration of the validity period, the registrant can apply to the International Bureau for renewal. If the registrant does not apply for renewal within the validity period, he or she may be given a 6-month suspension. Extension period. When transferring an internationally registered trademark, the transferee should comply with the provisions of international treaties. At the same time, according to the provisions of the Trademark Law, the transferor should also transfer its identical or similar trademarks on the same or similar goods or services. The regulations on deletion applications mainly involve the requirements that the scope of goods or services after deletion should comply with.

(6) In view of the differences between the institutional design and specific provisions of the Madrid System for internationally registered trademarks and the Trademark Law, international registration of trademarks has certain differences when applying the Trademark Law and the Implementing Regulations of the Trademark Law. Exclusions apply. Applications for territorial extension designated in China are not subject to the review period for domestic applications for registered trademarks, nor are goods division regulations applicable. The provisions of the Trademark Law on the time limit for opposition hearings do not apply to the Trademark Office’s review of opposed international registered trademarks. The stipulation that when a trademark registrant changes the name or address of the registrant, all registered trademarks must be changed together, and the stipulation that trademark transfer must be applied for and handled by the transferor and the transferee at the same time, do not apply to changes in international registration of trademarks, Transfer matters.

The revisions to the trademark review content of the Trademark Law Implementation Regulations (hereinafter referred to as the Regulations) closely focus on the requirements of the Trademark Law in terms of facilitating parties’ registration applications and maintaining the market order of fair competition, simplifying and Further implementation of requirements such as optimizing authorization and confirmation procedures and increasing efforts to combat malicious registration will play an important role in protecting the legitimate rights and interests of parties involved in trademark review cases, standardizing specific administrative actions for trademark authorization and confirmation, and maintaining a fair and efficient order of trademark authorization and confirmation. effect.

1. Definition of "trademark review"

Article 2 of the Trademark Law stipulates that the Trademark Review and Adjudication Board handles trademark disputes, and in Chapters 3 and 5 , Chapter 6 has made specific provisions in a number of legal articles. Article 51 of the Regulations defines "trademark review" for the first time, clearly stipulates the scope of the Trademark Review and Adjudication Board's handling of "trademark disputes", enumerates specific provisions of the trademark law, and more clearly defines the law for trademark review and confirmation. in accordance with.

2. Refine the provisions of the Trademark Law on adjustments to the opposition procedure

In response to the adjustments to the opposition procedure in the Trademark Law, the Regulations have repositioned the nature of the review procedure for denial of registration. While clarifying the nature of "review", we should also take into account the particularity of the trademark confirmation procedure and give full play to the role of the review procedure in preventing malicious registration. Article 53 of the Regulations stipulates the content and procedures for the Trademark Review and Adjudication Board to review cases of denial of registration, and clarifies that the Trademark Review and Adjudication Board shall listen to the opinions of the original opponent while hearing the Trademark Office's decision to deny registration.

3. It is more conducive to protecting the legal rights of the parties involved in review cases

The Trademark Law clearly stipulates the trial time limit for various cases heard by the Trademark Review and Adjudication Board, which is conducive to improving the speed of case review. efficiency and protect the legitimate rights and interests of the parties concerned.

Fourth, further standardizing the specific administrative actions of trademark authorization and confirmation

The Trademark Review and Adjudication Board is authorized to hear trademark review cases in accordance with the Trademark Law, which falls within the scope of specific administrative actions and should follow the rules of administration in accordance with the law. Basic principles. The trial scope of various review cases is not only the effective basis for the Trademark Review and Adjudication Board to hear various cases, but also strictly defines the scope of the Trademark Review and Adjudication Board's exercise of powers.

5. Highlighting the actual needs and operability of the work

The regulations also stipulate some ambiguities that exist in practical operations, such as clearly stated in Article 12 Article 49 stipulates the starting date and specific calculation method for the general period of time, and makes special provisions for the calculation of the protection period of the exclusive right to use a trademark; Article 49 clarifies that a request for invalidation of an internationally registered trademark shall be effective from the expiration of the rejection period or the administrative decision proposed; Article 61 stipulates that the withdrawal of an application for review by a party shall be reviewed and confirmed by the Trademark Review and Adjudication Board. These provisions are helpful for parties to clarify the rights granted by the law and facilitate them to use legal procedures to safeguard their legal rights.