I. On the subject qualification of the dissenter
Article 17 of the original Trademark Law clearly stipulates that "any person may raise an objection", and Article 30 of the new law also makes the same provision. Although anyone has the right to object, any person must, at the same time as he or she files an application for an objection, prove that he or she has a legal personality, i.e. a natural legal person or other organization. Therefore, the opponent should provide corresponding evidence to prove that his identity is true, legal and effective. If the natural person shows the resident identity card, the legal person shows the copy of the business license, and submit a copy consistent with the original content, or submit a copy confirmed by the certification authority and stamped with the official seal. Where a natural person raises an objection in another person's name, pseudonym or pseudonym, and a legal person raises an objection with an industrial and agricultural license or official seal that is invalid due to revocation or other reasons, it shall not be accepted; For those that have been accepted, they will be rejected because of their lack of subject qualification, and in the case that the current law does not provide for such a rejection system, they can be used as one of the reasons for closing the case and be granted the registration of the challenged trademark.
2. Service of a copy of the trademark opposition when the opponent is a co-owner
Article 16 of the Regulations provides for the appointment and legal presumption of the representative of the co-applicant. Article 22 of the regulations stipulates that "an opponent shall submit a trademark objection in duplicate to the Trademark Office." There is only one copy of the trademark objection. Therefore, it can be presumed that when the opponent is a co-owner, the trademark opposition is served on the representative of the co-owner. In the case that the regulations do not stipulate the rights and obligations of the representative, the provisions of Article 22 of the Regulations make up for this to a certain extent, that is, the copy of the trademark opposition, the notice of correction in the trial process, the trademark opposition ruling and other legal documents can only be served on the representative. For similar issues, that is, when the person being applied for review is a co-owner, the Regulations make different provisions in the review procedure, according to article 30 of the Regulations, the application for review shall submit the corresponding number of copies according to the number of other parties. According to this, it can be presumed that when the applicant is a co-owner, the copy of the trademark review application is served to the co-owners, rather than the representative.
Perhaps, the understanding of the legislator is that since the law stipulates the representative of the joint applicant, the term of office of the representative is at least from the date of application to the date of expiration of the opposition period, and the authority of the representative at least includes signing and receiving legal documents such as copies of the trademark opposition, so only one copy of the trademark opposition is required; At the expiration of the opposition period, after the trademark registration application is approved, the term of office of the representative will naturally expire after entering the trademark dispute after registration, so the number of copies of the review application shall be equal to the number of the other party. It may be that this understanding is reasonable and not clearly illegal, but it is unclear why the legislator hides this understanding behind the law and does not specify the term of office, rights and obligations of the co-applicant's representative.
Third, the trademark opposition shall have a clear request
Article 22 of the Regulations stipulates that "the trademark objection shall have a clear request and factual basis, and the relevant evidentiary materials shall be attached", including "clear request", which is superfluous. Because, the objection request is nothing more than not to agree to the objection of the trademark in all or part of its designated goods registration, even if the objection is not clear for all or part, the trademark Office should also accept the objection application and rule in accordance with the law. In practice, it is extremely rare that the trademark protest lacks an objection request, and it often happens that there is only an objection request without a clear objection reason, which makes it difficult for the Trademark Office to make a decision on whether to accept or not, and the new law still fails to solve this problem. Moreover, Article 33 of the new law stipulates that the Trademark Office shall hear the facts and reasons stated by the opposing parties, and if there is no objection reason, the objection ruling will not be carried out. Therefore, applications without clear grounds for objection may not be entertained. The author believes that the legislation should clearly stipulate that "the application for opposition must meet the following conditions: (1) there is a clear trademark being opposed; (2) There are specific reasons and facts for the objection; (3) Submitted within the objection period; (4) within the scope of the Trademark Office's acceptance of trademark objections." And based on the establishment of an objection application acceptance system, the following provisions can be made: "The Trademark Office received an objection application, after examination, that meets the conditions of the objection application, shall be accepted; If it considers that the application for opposition does not meet the conditions, it shall not be accepted; If, in accordance with the law, it should be handled by the Trademark Review and Adjudication Board, the opposing party shall be informed to file an application for review with the Trademark Review and Adjudication Board."
Iv. Declaration of supplementary evidentiary materials and time limit for submission
In order to enable the parties to submit the objection application or objection defense materials in a timely manner, so as not only to safeguard the legitimate rights of the opposing parties, but also to improve the effectiveness of the objection adjudication work to a certain extent, Article 22, paragraph 3, of the Regulations stipulates: "If a party needs to supplement relevant evidentiary materials after filing an application for opposition or defense, it shall declare it in the application or defense, and submit it within three months from the date of submission of the application or defense; If the documents are not submitted at the expiration of the time limit, the parties shall be deemed to have given up supplementing the relevant evidentiary materials." This provision will effectively change the situation in the past that objections or defense materials can be added at any time. If the opponent or the person opposed fails to supplement the materials in time, it shall bear the adverse consequences that may result therefrom. In the case that the Trademark Office does not accept the later supplementary objection materials and the objection is not established, or the Trademark Office does not accept the later supplementary defense materials and the objection is established, the opponent may apply to the Trademark Review and Adjudication Board for review and submit the proposed supplementary materials to the committee.
The ambiguity of this article is that: If the parties do not declare in the application for opposition or the defense, can they provide the evidentiary materials within the time limit? The author believes that the provision of "should declare" in this article is declarative rather than mandatory, and the right to supplement evidentiary materials cannot be deprived because the parties have not made a declaration. The purpose of this article is two: first, the parties give the Trademark Office a reminder to avoid the Trademark Office before receiving the supplementary evidence of opposition to send a notice of defense, a copy of the trademark opposition, and avoid the Trademark Office before receiving the supplementary evidence of defense to make a ruling. Second, if the party fails to make a declaration, it shall bear the corresponding adverse consequences. For example, if the respondent does not make a statement about the supplementary evidence in his defense, and the Trademark Office makes an adverse ruling against the respondent on the grounds of insufficient evidence before submitting the supplementary evidence materials, the Trademark Office shall not bear any responsibility.
The loophole in this clause is: can the parties add objections or reasons for defense within the prescribed time limit? The author believes that the fundamental purpose of the trademark objection system is to settle the dispute, and the opponent should be allowed to add the reasons for objection while ensuring the respondent's right of defense. Since the law does not require the Trademark Office to transfer the respondent's reply to the opponent and the evidence exchange system, the prohibition of the respondent's supplementary reasons for reply is even less reasonable. If the parties add reasons for objection or reasons for defense, they may be executed in reference to these articles.
The deviation of this article is that it stipulates that "if the expiration of the period is not submitted (supplementary evidentiary materials), it is deemed that the parties have given up the supplementary evidentiary materials", and does not specify the Angle of how to deal with the expiration of the submission. First of all, from the content of this article, the parties have the right to obtain supplementary evidentiary materials through the declaration system. Strictly speaking, what is given up here is not "supplementing the relevant evidentiary materials", but "the right to supplement the relevant evidentiary materials". Secondly, the meaning of "deemed" in this article should be that the parties have not given up, and the law presumes that they have given up. However, if the parties fail to submit within the prescribed time limit or fail to submit at the expiration of the time limit, it is essentially a waiver of the right to supplement the relevant evidentiary materials, and there is no need to "consider". Finally, what really needs to be "considered" is the situation where the party has submitted the supplementary evidentiary materials after the deadline, in other words, the party has not waived the right to supplement the relevant evidentiary materials, but because it is an overdue submission, the law regards it as not submitted. Similar problems also appear in the second paragraph of the article: "the opposition does not answer, does not affect the ruling of the trademark Office", this clause is invalid. Because, the opponent does not answer, the trademark Office will also rule in accordance with the law, is the exercise of the trademark Office ruling power should mean, there is no need to specify otherwise. What the law needs to stipulate is how to deal with the delayed defense of the respondent? Whether the defense of the person opposed is not accepted, or the defense materials are classified into the opposition file, but the reasons for defense are not taken into account when the ruling is made
In order to maximize the protection of the interests of the applicant for trademark registration, that is, the opposed party, and avoid the phenomenon of being rejected as a whole because the opposed trademark conflicts with the prior rights of the opponent in some of its designated goods or services, the first paragraph of article 23 of the new Regulations stipulates that the establishment of the opposition includes the establishment of some designated goods, which is an important progress of the new law. Where the objection is established in respect of some specified goods or services, the application for trademark registration in respect of those specified goods or services shall not be approved. For example: If the applicant has registered the prior trademark "Sunshine" and approved the use of the goods as Category 25 "clothing", and the opposed trademark "Sunshine" designates the use of the goods as category 25 "clothing, shoes, hats", then the objection is established in part on the "clothing" goods, and the application for registration of the opposed trademark on the part of the goods is rejected, and the registration of the opposed trademark on the "shoes and hats" is granted. Since the trademark may be applied for review by others after the final ruling on the registration of the opposition, in order to avoid others from filing an application for review in accordance with the content of the preliminary approval announcement and the original registration announcement, as well as to facilitate public awareness and trademark management, the registration content of the challenged trademark should be published in full if the final ruling of the opposition is established.
6. The starting time of the term for the exclusive right to use the trademark opposed
The second paragraph of Article 18 of the original Rules for the Implementation of the Trademark Law only provides that "if the opposition trademark is registered before the opposition ruling takes effect, the trademark registration announcement is invalid", but does not explicitly stipulate the starting time of the period for the exclusive right of the opposed trademark to be registered after the final ruling, and the Trademark Office later explains that the period for the exclusive right of the opposed trademark is calculated from the date of the original registration announcement. In fact, there are insuperable contradictions in this interpretation in jurisprudence. The reason is that: once the registration announcement is declared invalid, it is invalid from the beginning and invalid for the future, and the registration announcement cannot have any legal effect, why can it be interpreted that the original registration announcement can "come back to life" after the final ruling of the objection and have legal effect?
Regrettably, this interpretation has been incorporated into new laws and regulations. The second paragraph of Article 34 of the new law stipulates that "if the registration is approved after the ruling that the opposition cannot be established, the time for the trademark registration applicant to obtain the exclusive right to use the trademark shall be calculated from the date of the expiration of three months of the preliminary examination announcement", regardless of how the legislative language is changed, of which "the date of the expiration of three months of the preliminary examination announcement" is the date of the original registration announcement. However, the second paragraph of Article 23 of the Regulations stipulates that "where the registration announcement of the opposed trademark has been published before the ruling of the opposition, the original registration announcement shall be revoked, and the trademark whose registration has been approved by the ruling of the opposition shall be published again." Whether it is "revocation of the announcement" or "invalidation of the announcement", the consequence is that the legal effect of the registered announcement is terminated, and no legal effect can occur. The new law stipulates that if the registration is approved after the ruling that the objection cannot be established, the original registration announcement shall have legal effect, and why the Regulations shall "revoke the original registration announcement" and "re-announcement". Therefore, the provisions of this paragraph of the Regulations are fundamentally in violation of the provisions of the second paragraph of Article 34 of the new law, and the term of the exclusive right to use the opposed trademark is calculated from the date of the original registration announcement, and why do you need to re-announce it? What is the purpose and legal effect of the reannouncement? The interpretation that is more in line with the legal principle may be: if the registration announcement of the opposed trademark has been published before the ruling of the objection, the effect of the original registration announcement is "suspended", rather than "terminated" after the invalidation or cancellation.
Vii. Retroactivity of the approved registration of the opposed trademark and its remedies
The third paragraph of Article 23 of the Regulations provides that: "A trademark whose registration has been approved by an objection ruling shall not have retrospective effect on the use by others of the same or similar marks on the same or similar goods from the date of expiration of the objection ruling to the effective date of the objection ruling; However, any loss caused to the trademark registrant by the malicious intent of the user shall be compensated." This paragraph is actually a provision on the retroactivity of the claim for damages of the person opposed and does not involve the cessation of the use of the claim. Because China does not yet recognize the trademark prior use right system, once the trademark is registered and obtained the exclusive right, it is bound to be able to request others to stop using the same or similar logo with the trademark on the same or similar goods. The application of this paragraph also needs to solve two problems: First, how to identify the malicious intent of the user? The so-called "bad faith" means that a person is instructed to use the same or similar mark with the opposed trademark on the same or similar goods, knowing the existence of the opposed trademark. Whether the user knows that the burden of proof is borne by the person opposed. In a more extreme example, the opponent begins to use the same or similar mark with the challenged trademark on the same or similar goods after the objection is filed. Second, how to identify the loss of the person opposed? In principle, the provisions of Article 56 of the new law can be referred to, even if the benefits obtained by the use of the employee during the use period, or the loss suffered by the opponent due to the use of the user, including the reasonable expenses paid by the opponent to stop the use of the act.
8. The beginning of the time limit for filing an application for review of the trademark against which the opposition has been approved by the ruling of opposition
Article 23, paragraph 4 of the Regulations provides: "For a trademark whose registration has been approved by an opposition ruling, the time limit for filing an application for review shall be calculated from the date of the announcement of the ruling on the opposition to the trademark." On the one hand, this paragraph clarifies the beginning of the time limit for reviewing an application for the review of an objection to a trademark that has been approved by the ruling of opposition. On the other hand, it sets up the obligation for the relevant institutions to announce the final decision of the opposition. According to the usual practice, the final ruling of the trademark opposition (including the ruling of the Trademark Review and Adjudication Board) shall be published by the Trademark Office, which is a public announcement and does not have any legal effect. The provisions of this paragraph of the Regulations undoubtedly give this notice a certain legal effect. The questions raised by this are: First, how long should the relevant agency issue the announcement of the objection ruling after the effect of the objection ruling? Second, after the final ruling (judgment) of the opposition after the final judicial appeal, is the Trademark Office also issued a notice of the ruling of the opposition to the trademark? This may have to depend on coordination and interpretation among the relevant agencies.
9. Judicial remedies
The new law abolishes the practice of final administrative rulings, and adds judicial relief procedures on the basis of the objection review procedure, that is, according to the second paragraph of Article 33 of the new law, a party who refuses to accept the objection review ruling of the Trademark Review and Adjudication Board may bring a suit to the people's court within 30 days from the date of receipt of the notice. The people's court shall notify the other party to the trademark review proceedings to participate in the proceedings as a third party. Although the rationality of adopting the administrative litigation mode for trademark review cases is questionable, it provides the parties with judicial relief as the final remedy for their rights. The result of this is that trademark opposition cases implement the four-level trial final trial system of administrative second instance and judicial second instance. That is, the opposition ruling of the trademark Office, the opposition review ruling of the Trademark Review and Adjudication Board, the judgment of the first instance court, and the final judgment of the second instance court. This result is closely related to the function distribution between the Trademark Office and the Trademark Review and Adjudication Board. The existing distribution assumption is that the Trademark Review and Adjudication Board directly has jurisdiction over the disputes after the trademark registration application is rejected and the trademark registration, and the disputes before the trademark registration are still under the jurisdiction of the Trademark Office. As far as trademark objections are concerned, in fact, a party does not accept the decision of the Trademark Office for preliminary examination and approval of the trademark, which is essentially no different from the decision of a party refusing to accept the Trademark Office's registration application and approval of the registered trademark, that is, they are not satisfied with the decision of the Trademark Office, and why does the legislation make a distinction in jurisdiction? It is worth studying the rationality of submitting the "objection" to the Trademark Office's decision of preliminary examination and approval of the trademark and public announcement to the Trademark Office for ruling, and to what extent can self-supervision exert the effectiveness of supervision (mainly in the examination standards of whether the relevant trademarks are similar and whether the commodities are similar)? Therefore, a more reasonable assumption of functional allocation is that the Trademark Review and Adjudication Board directly has jurisdiction over disputes (including objections) that are not satisfied with the decision of the Trademark Office (including the decision of preliminary examination and announcement). This can simplify the number of administrative trials, shorten the trial period of opposition cases, and protect the procedural interests of the person opposed to the greatest extent.
10. On the withdrawal system of dissenting examiners
According to the provisions of Article 9 of the new Law, trademark opposition examiners shall withdraw under any of the following circumstances, and the parties or interested parties may request them to withdraw: (1) they are the parties or close relatives of the parties or agents; (2) Having other relationships with parties or agents that may affect justice; (3) having an interest in a trademark opposition case. The purpose of applying this article is to ensure the fair trial of opposition cases and better safeguard the legitimate rights and interests of the parties. From the perspective of legal system construction, the new law stipulates the avoidance system is one of the manifestations of the progress of the rule of law civilization. However, the provisions of the new law are too simple to be operable. For example, when should a party apply for withdrawal? What is the form of the application? Who makes the decision on whether to withdraw based on the application of the parties? What is the form of the decision? What are the legal consequences of an examiner who should recuse himself but doesn't? In addition, the new law is so general about the circumstances in which examiners should recuse themselves that there are two "backstop clauses" containing "other relationships" or "interests." Can the staff of the Trademark Office and the Trademark Review and Adjudication Board, as public servants of the State, objectively become a party to "trademark matters"? If this happens in practice, is it normal? Therefore, the content of Article 9 of the new law is somewhat blind compared with the relevant avoidance provisions of the civil or administrative procedure law.
The author believes that in the process of trial of opposition cases, the examiner should avoid the circumstances at least include: (1) the examiner's spouse is a party to the case; (2) The examiner is a close relative of one of the parties to the case; (3) the examiner is the legal representative of a party to the case, the main person in charge or a close relative of the case manager; (4) The examiner is a close relative of the agent of a party to the case; (5) the examiner participated in the examination decision of the opposed trademark involved in the case at the examination stage; (6) The examiner has other relations with a party or agent of the case, which may affect the fair trial of the case. If the examiner should withdraw without withdrawal, the trial conclusion of the case is invalid and the case should be tried again. If a party requests the examiner to withdraw, it shall submit a written application and explain the reasons before the conclusion of the trial. The Trademark Office shall notify the parties of its decision in writing and state the reasons.
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