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China Supreme Court Issued Provisions Concerning Trademark Administrative Litigation

Date:2017-06-16    Source:(Source: People’s Daily)

“Provisions of the Supreme People 's Court Concerning the Trial of Administrative Cases Involving Granting and Determination of Trademark Rights”(the Provisions) was recently annouced and will come into force commencing March 1, 2017. 

The Provisions apply to administrative litigations filed by the interested parties dissatisfied with decisions made by Trademark Review and Adjudication Board on review of trademark refusal, review of trademark opposition,review of trademark cancellation, invalidation and invalidation review cases, the number of which has increased rapidly especially over the past two years. 

In regards to Article 10, Paragraph 1 (8) of China Trademark Law, namely, marks that are harmful to the socialist morality or have other ill influences shall not be used as trademarks, the Interpretations make it clear that

Marks or its composing elements that may have passive and negative affects on social and public interests and public order of China may be considered as having "other ill influences";

Marks composed of the personal names of political, economic, cultural, religious, national and other public figures’ names; and

Marks containing the name of P.R.C. but not identical or similar in its whole, may also be considered as having "other ill influences" if the registration of such marks may damage the dignity of the country. 

According to the Provisions, for trademark disputes based on personal name rights, where the relevant public thinks the disputed mark refers to the natural person concerned, and is apt to believe the products bearing the disputed mark are licensed by or connected with the natural person, the court shall affirm that the trademark has infringed on the natural person's right of name. Where the interested party claims its right of special names such as pen names, stage names or translations that have enjoyed certain publicity and established corresponding relationship with the natural person, so that the relevant public refers it to the natural person, the Court shall support such claim. Where the interested party claims its rights of trade name, which has enjoyed certain publicity, when a third party applies for registration of a trademark similar or identical to the trade name without permission, thus apt to mislead the relevant public and confuse the source of origin, the Court shall support such claim.