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Announcement of the State
Administration for Industry and Commerce on Issuing the Measures for the Oral
Trial of Trademark Review Cases
(No. 65 [2017] of the State Administration for Industry and Commerce)
For the purposes of further promoting the reform of facilitating trademark
review and standardizing the procedures for the oral trial of review cases, in
accordance with the Trademark Law of the People's Republic of China,
the Regulation on the Implementation of the Trademark Law
of the People's Republic of China, the Rules on Trademark Review, and
other relevant provisions, the State Administration for Industry and Commerce
has developed the Measures for the Oral Trial of Trademark Review Cases, which
is hereby issued and shall come into force on the date of issuance.
State Administration for Industry and Commerce
May 4, 2017
Measures for the Oral Trial of Trademark Review Cases
Article 1 For the purposes of
ascertaining the relevant facts of the trademark review cases, these Measures
are developed in accordance with the Trademark Law of the People's Republic of China,
the Regulation on the Implementation of the Trademark Law
of the People's Republic of China and the Rules on Trademark Review.
Article 2 The Trademark Review
and Adjudication Board may, according to the requests of parties or the needs
of trial of cases, decide to conduct oral trial of the trademark review cases.
Article 3 Where a party to a
trademark review case has any doubt about the relevant evidence of the case and
believes that cross-examination shall be conducted on the spot, it may request
the Trademark and Adjudication Board to conduct an oral trial. The request
shall be made in writing and the reasons shall be stated. The Trademark Review
and Adjudication Board deeming it necessary may decide to conduct an oral
trial.
Where a party requests to conduct an oral trial, but the written materials on
the case are sufficient to ascertain the case facts, the Trademark Review and
Adjudication Board may decide not to conduct an oral trial and shall explain
the reason in the review decision and ruling.
Article 4 An applicant
requesting an oral trial shall, when an application for review is filed or
within 30 days from the date of receiving the photocopy of the respondent's
defense at the latest, file an application with the Trademark Review and
Adjudication Board; and a respondent requesting an oral trial shall file an
application when submitting the defense to the Trademark Review and
Adjudication Board or supplementing the relevant evidence materials.
Article 5 In accordance with
the actual needs for case trial, the Trademark Review and Adjudication Board
may also decide to conduct oral trial for a review case according to the
functions.
Article 6 A Trademark Review
and Adjudication Board that decides to conduct an oral trial shall inform the
parties in writing of the date and place of the oral trial, the members of the
collegial panel, the oral trial procedures, and the rights and obligations of
the participants of oral trial.
The parties shall, within 10 days from the date of receiving the oral trial
notice, submit an oral trial receipt to the Trademark Review and Adjudication
Board. An application for the withdrawal of a member of the collegial panel
shall be filed with the receipt and the reasons shall be given.
A party that fails to submit a receipt upon expiration shall be deemed not to
participate in oral trial. Where the relevant party does not participate in an
oral trial, the Trademark Review and Adjudication Board may decide to conduct
default trial or cancel the oral trial.
Article 7 All parties
participating in oral trial, including entrusted agents, shall not exceed two
persons, except with the consent of the Trademark Review and Adjudication
Board.
Article 8 Before the start of
an oral trial, the Trademark Review and Adjudication Board shall announce the
relevant information concerning the oral trial case at the office premises and
on the official website or the newspaper and periodical.
Article 9 Oral trial shall be
in the charge of a collegial panel handling the case and the collegial panel
shall consist of three or more singular persons, including one group leader.
Article 10 Before the start of
an oral trial, the collegial panel shall check the identity information of the
persons participating in the oral trial, confirm their eligibility for
participating in the oral trial, and announce the rules of oral trial.
Article 11 An oral trial shall
be presided over by the group leader of the collegial panel. After the group
leader of the collegial panel announces the start of an oral trial, the
investigation of the oral trial shall be carried out in the following order:
(1) Members of the collegial panel introduce the basic situation of the case
and clarify the main problems of the case dispute.
(2) The applicant states the review request.
(3) The respondent presents defenses.
Article 12 A party shall
produce all the evidence submitted during the review process in an oral trial
to be cross-examined by the other party.
Article 13 In
cross-examination, a party shall challenge, explain and refute the
authenticity, relevance and legitimacy of the evidence, the existence of the
evidence's probative force and the strength of the evidence's probative force.
Cross-examination shall be conducted in the following order:
(1) The applicant produces evidence and the respondent conducts
cross-examination with the applicant.
(2) The respondent produces evidence and the applicant conducts
cross-examination with the respondent.
Article 14 With the consent of
the Trademark Review and Adjudication Board , a witness shall be invited to be
present to testify for an oral trial. No witness shall observe any oral trial.
In cross-examination of a witness, other witnesses shall not be present.
Article 15 Members of the
collegial panel may put questions on relevant facts and evidence to the parties
or witnesses, and may request the parties or witnesses to offer explanation;
and may request the witness to be confronted, if necessary.
With the permission of the collegial panel, a party may inquire the witness.
Article 16 Before the end of an
oral trial, the collegial panel shall consult the final opinions of the parties
in the order of applicant and respondent. After the final opinions are stated,
the oral trial ends.
Article 17 Where, in the course
of an oral trial, the relevant parties have withdrawn from the trial without
permission or are ordered by the collegial panel to withdraw from the trial,
the collegial panel may proceed with the trial by default and record the facts
of withdrawal from trial, and the records shall be signed by the parties or the
collegial panel for confirmation. Where all parties have withdrawn from an oral
trial, the oral trial shall be terminated.
Where two parties have reached a settlement agreement or are willing to
reconcile during the process of an oral trial process, the oral trial shall be terminated.
Article 18 The clerk or a
member of the collegial panel designated by the group leader shall record the
important matters of the oral trial in the transcript of oral trial. Besides
transcript, the collegial panel may also make records with recording and
videotaping equipment.
After the end of an oral trial, the collegial panel shall hand over the
transcript to the parties for verification. The parties shall have the right to
request correction of any error of the transcript. A transcript shall be signed
by the parties and be deposited in the file after verification. Where the
parties refuse to sign therein, the collegial panel shall indicate in the
transcript of the oral trial.
Article 19 Without the
permission of the Trademark Review and Adjudication Board, an oral trial shall
not be observed, photographed, recorded or videotaped.
Article 20 For the purposes of
these Measures, “parties” and “respondent” include the original opponent of a
case on the review of disapproval of trademark registration.
Article 21 These Measures shall
come into force on the date of issuance.
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