Review committee of the State Administration for Industry and Commerce Trademark Xu Lin

     One, the basic situation          
     1-6 in 2012, the Trademark Review and Adjudication Board ruled the Trademark Review and Adjudication in 29189 cases. If a party refuses to accept the Trademark Review and Adjudication Board decision, bring an administrative lawsuit to the Beijing first intermediate people's court cases 1335 pieces, accounting for 4.57% of the number of cases of Trademark Review Award, compared with the year 2011 4.86% decline in the proportion of cases of Trademark Review; enter the Beijing higher people's Court of second instance procedure has 417 parts; in the Supreme People's court retrial the hearing procedure to the program there are 27 cases.             
     Here, the TRAb received the court verdict in 807 copies, 407 copies of second instance judgment, then trial 17. The court has accepted the case, I appointed the first half of 2012 two overall successful rate was 81.3%, first and second win rate respectively82.9% and 78.1%.    

       Two, the overall analysis of losing            
     The statistics for the first half of 2011 in the proceedings of the first instance on,Similar trademarks and commodity similar judgment is still the two major causes of losingBecause of similar trademarks determination, the court cases was 20%, 8% lower than 2011; because of the commodity similar judgment court cases was 19%, and in 2011 18% of the roughly equal proportion. Losing reason proportion decreased approximate estimation except the larger, have "changed circumstances", dropped to 2% from 8% last year.             
     Compared with 2011, the causes of lost ratio improved markedly with:One is due to the ten paragraph two relates to the placename trademark registration problemsTherefore, losing in 10 cases, the proportion of court cases up to 7%.This is mainly because the judges and court in 9 pieces of "Shishi" trademark objection review series case about "Shishi" whether there are differences between the meaning of place names with outside, judges think "Shishi" meaning "stone lion" in the name of administrative divisions, is objection trademark does not violate the "ten trademark law" provisions of the two paragraph, and then think "Shishi" can be used for a variety of meaning, it refers to specific things "lions" meaning is not strong in the names of meaning, that is the objected trademark violation of "trademark law" article ten the provisions of paragraph two, the decision to withdraw the judges ruled. Two cases involving well-known trademark recognition losing ratio rose from 2% last year to 5%, the differences are mainly concentrated in the determination of the well-known trademark anti dilution protection;The three is due to review material service of court cases accounted for 6%; four is due to the court proceedings in the new evidence submitted to court cases rose from 1% last year to 7%; five is due to the Department for trademark registration is cancelled or revoked the business license of trademark registration and court on whether differences lose the proportion of cases was 4%; six is the leak trial review request lead to lose the case ratio rose from 3% last year to 7%.

      Three, case specific analysis of the situation
    (a) approximate estimation of foreign trademark             
     For the approximate estimation of foreign trademark, consideration should be given to the China consumers of foreign trademark recognition ability and habit. For China consumers familiar with foreign words, its meaning should be regarded as the important content of the review. For the meaning or language to Chinese public relatively unfamiliar foreign words, or no meaning of the foreign words, foreign words to first look at the "shape", namely to approximate the whole letter combinations are determined; secondly should consider foreign language pronunciation of the word; third, should refer to the main meaning, both form and the other part of the trademark in foreign languages.
             
     In 6970154th, "MER R?"Trademark barge reply ad litem, the cited trademark for English word "roamer",The judges found two trademark and visual effects in the letter hand approximation, coexist in the similar goods, easy cause consumer confusion, used in similar trademarks on similar goods. And the court of first instance but think, "trademark application by Devin the letter R? Mer. German and English for two different languages, German has 30 letters, in addition to A to Z, there are three umlaut letter?,?,?, and a light consonant letter beta. Umlaut letter? And pronunciation differences English letter O greatly, when? And O respectively with the same respective languages in spelling pronunciation differences when. The cited trademark by the English letters roamer, applications for trademark Devin letter for R? MER, because the two different languages, different letters, pronunciation is different, different, different definitions of call, because the defendant decided that the application for trademark with the cited trademark constitutes a similar trademark reason neither factual basis, there is no legal basis ", the decision to withdraw the judges decided.
      On the case, the application for trademark specified using the commodity for the seat belt, baby stroller products, the public should be Chinese ordinary consumers or operators. The popularity of education and Chinese without Devin, the public to apply for trademark with lower cognitive levels of Devin, the public is more likely to be identified as the meaning of the word without English. The court of first instance of the application for trademark words for Devin, and the sounds of the letters? Too much emphasis on special, beyond the obvious application for trademark specified using commodity related public foreign language cognition. Any application for a trademark with the cited trademark are composed of multiple letters in words, two is only a difference of one letter "is in the middle position and not the pronunciation of" a ", the judges from the general cognitive perspective public decision two trademark similar to a trademark is not wrong.
      (two) a review of the case can be dismissed on the application for trademark usage considerations          
     Rejected in No. 6632620th "fast and map" trademark review of administrative litigation,The court of first instance explicitly pointed out that, in the Trademark Review dismissed the case, the application does not need to consider the application for trademark well-known trademark registration is in accordance with the provisions of the Trademark Law Article twenty-eighth when the judgment. The court of first instance on three levels are discussed,The firstIn applying for trademark, has certain popularity, but popularity is far greater than the cited trademark application for trademark case, the court considered the case related public perception of the cited trademark is far better than their knowledge of trade mark applications, so it is easy to think to apply for the use of the trademark or service provided by the cited trademark owner thus, confusion of the source of goods or services, a positive confusion.SecondApplication for trademark, the well-known trademark is far higher than the citation, the court believes that such cases caused by the "reverse confusion", citing trademark rights damage the interests of the people, so also should be banned.ThirdThe application for trademark, even with the cited trademark has a certain visibility, and famous degree difference, also not necessarily does not have the likelihood of confusion, the need to combine the two trademark well-known geographical scope, targeted consumer groups and other factors to determine the.To sum upThe trademark review the case, rejected, because the cited trademark all do not participate in the review process, and to the judges and court inorganic submit evidence to prove that the cited trademark awareness and other relevant facts, therefore cannot consider the visibility and the relevant facts cited trademark case, even if the application for trademark has certain visibility, judges and court also cannot be related to whether the public will apply for trademark and the cited mark indicating the source of goods or services to judge the trademark confusion, rejected without considering the application for trademark well-known evidence review cases.              
     For this view, this can be considered for the analysis from two aspects.(The Trademark Review and Adjudication Board views)FirstThe implementation of the trademark law, article twenty-eighth, whether can or should consider the actual use of the trademark or the mark? The Supreme People's court "about the provisions of Article 1 of the trial of administrative cases on trademark licenses the right", "to use a longer time, has established a high reputation and market related public group litigation trademark, we must accurately grasp the trademark law concerning the protection of commercial mark rights and maintain the first Legislative spirit market order in coordination, fully respect the relevant the public has the objective will be to the relevant business mark to distinguish the actual market, pay attention to the maintenance has been formed and stable market order". Only applicable to "trademark law" article twenty-eighth similar trademarks determination, I appointed the provision is reasonable. Because twenty-eighth is to protect the trademark distinguishing function, the prohibition of confusion for the purpose of legislation, even after the application for trademark and others prior trademark objectively more approximate, but if the trademark after use, has established the high market reputation and public groups, that is related to the public on the market can not be generated and prior trademark confusion the case, should relax on judgment standard of trademark, decision does not constitute twenty-eighth of the cases, this is a correct grasp of twenty-eighth legislative spirit. Therefore, the implementation of the Trademark Law Article twenty-eighth, can and should consider the actual use of the trademark or the mark, pay attention to the maintenance has been formed and stable market order.              
      Secondly.In rejecting the review of the case, the applicable trademark law article twenty-eighth if you can or should consider the actual use of the trademark or the mark? According to the view of the court of first instance, whether to use of trade mark applications will have a material impact on similar trademark judgment, need for visibility of any application for a trademark with the cited trademark were compared, and the comprehensive decision considering other factors. In rejecting the review of the case, because the cited trademark party unable to participate in the program, the judges or courts of the cited trademark awareness and other factors not considered, not related to whether the public will produce confusion to judge the source of goods, so the trademark barge reply trial without consideration for brand awareness of evidence. According to this logic, the review dismissed cases, more approximate in the application for trademark with the cited trademark case, because of the cited trademark all is unable to participate in the program, without also should not consider the use of the trademark, the trademark shall not preliminary approval notice. But once dismissed the application for registration, the application for trademark also cannot enter the objection or disputes and other parties to participate in the program, to obtain the protection of trademark rights, can only be re filed. So move in circles, regardless of the actual use of the mark, in the review dismissed case, its popularity is always excluded from consideration, as long as the cited trademark is still valid, the applicant for trademark will never get registered, even perhaps in the cited trademark all ginseng and procedures and provide relevant evidence, in applying for trademark and the cited trademark is essentially formed their stable market, the public not to confusion, the application for trademark can be allowed to register. This result maintenance has been formed and stable market order to clear with the Supreme Court "several issues concerning trademark licensing administrative cases right opinion" in the legislative spirit contradict, also with the Trademark Law Article twenty-eighth "Prohibition of confusion" runs counter to the purpose of the legislation. Previously, the court had in "Netac", "SANWEI", "Yonghe soybean milk and map" trademarks review dismissed the administrative lawsuit, considering the actual use of trade mark applications and identified with the cited trademark coexistence without causing confusion in the market, that does not constitute a similar trademark.              
     I appoint think, in rejecting the review and objection review cases for review, trademark has not been registered, the administrative organ or the courts to review whether a trademark by using has formed a stable market order and does not cause the relevant public confusion, should be judged more stringent, focuses on the market main body to avoid the prior trademark right, avoid cause public confusion, causing confusion in the market; but also not overcorrect, completely rule out the application for trademark review dismissed cases in. In such cases, if the review trademark with the cited trademark is similar, only the review provides extensive use of trademark, publicity and evidence, prove its long-term coexistence with the cited trademark, has formed a stable market order, will not cause the relevant public confusion, it should be considered to determine its visibility, review and does not constitute trademark adduce trademark use similar trademarks in the similar goods. Even if the application for trademark granted preliminary approval, citing the trademark owner can start trademark objection or dispute procedures to safeguard their own rights and interests, trademark administrative authority or court will have the opportunity to the mark with the cited trademark coexistence will lead to the relevant public confusion, damage the interests of the owner of citation marks a comprehensive review.

        (three) on non to use for the purpose of a trademark act of
       In the evaluation of practice, in some cases only documented evidence is not enough to constitute trademark law article thirteenth, article fifteenth and article thirty-first of the situation, but this is for the owner of a registered trademark registration mark malicious obviously, and the existence of non to use for the purpose of, many others registered trademarks. At present, to regulate such behavior, there are generally two kinds of applicable law choice:             
      One is to apply the trademark law article forty-first a. To determine whether the behavior has disturbed the trademark registration order, a great waste of administrative resources and judicial resources, damage the public interests, constitute the "trademark law" case forty-first a the "registered" by other improper means.For example, in the "crayon Shinchan" series trademark dispute administrative lawsuit, the judges, the first instance, the court of second instance according to documented evidence, are of the view that in the disputed trademark application for registration date, "crayon Shinchan" series of comic and animation in Japan, Hongkong and the Taiwan area broadcast and high visibility. The trademark in dispute is the original applicant Cheng Yi company is located in Guangzhou, adjacent to Hongkong, should have known "crayon Shinchan" reputation, will "text and cartoon crayon" trademark registration, subjective malice obviously. At the same time, taking into account the Chengyi company has large quantities of registered trademark of others, scale and selling for profit behavior, vile, disrupting the trademark registration order, constitute "trademark law" case forty-first a the "registered" by other improper means. In the "Haitang bay" series trademark dispute case, the disputed trademark applicants for living in Hainan province Haikou city harbor nationality of natural persons, in the 41, 43 class registered more than ten pieces and place names of Hainan, landscape, property related trademarks, including the case of trademark dispute "Haitang bay". The judges that the disputed trademark applicant to unfair occupation of public resources for the purpose, apply for the registration of multi piece and place names of Hainan, landscape, property related trademarks, disrupting the trademark registration order, constitute the "trademark law" forty-first article of the cases, it shall be revoked. In this regard, the court of first instance has not to be recognized, but the court of second instance verdict verdict revoked, maintain the judges ruled.             
      Two is for the Trademark Law Article tenth paragraph (eight) study.In the "Shu Uemura and figure No. 3583591st"Trademark objection review case, the objected trademark is specified for use in clothing, shoes, hats and other products, the cited trademark "shu uemura Xiu Zhi cun"Trademark approved for use in cosmetics products, documented evidence is insufficient to prove that the cited trademark in trademark registration has been a well-known trademark. However, the facts of the case that registered Ji Shiqin as the natural person, in 2002 -2003 years, have to apply for registration of the "Puma including PUMA and map", "Saint Laurent YVESSAINTLAURENT and map", "dandy" PARTYBOY ", Montagut MONTAGUT and map", "DuPont", "Rolls-Royce", "Shu Uemura and map", "Ferrari FERRARI", more than 160 pieces of trademark. Accordingly, the judges think malicious registration act Ji Shiqin plagiarism, imitation of others well-known trademark not only disturbed the normal trademark registration and management order in our country, but also will have a negative impact on China's intellectual property protection image, has become a trademark law article tenth (eight) rule "with other adverse effects" of the situation. The first instance court judges ruled that the maintenance: "trademark law of China has taken 'first apply for register first' principle, but its direct purpose is to facilitate the trademark management, does not encourage have notThe actual use of the trademark registration behavior intention. In the sameOr similar goods in large quantities for the registration of a certain well-known trademark identical or similar to the trademark with others, but there is no real intention to use, will cause some monopoly on the specific symbol of unfair and damage to the legitimate interests of others, can be identified as disturbing the order of the trademark registration. In the specific case, if no other legal provisions to regulate the behavior, can be identified as contrary to the principle of honesty and credit, which led to China's economic, cultural and social public interests and public order, negative, negative effect."              
     From the facts of the case that can be seen, for the non to use for the purpose of many others, registered trademark, generally defined as "disturbing the order of trademark registration". And "disturb the order of registered trademark" trademark law forty-first article said "by other improper means to obtain registration" category, therefore, in such cases should be the priority for trademark law article forty-first a regulation. The parties without the forty-first one as a legal basis, only the tenth one (eight) of the "adverse effects" of the law, should be to prevent malicious cybersquatting, safeguard the principle of good faith to justice, judge the tenth one (eight) case study "not good" the.

     (four) determination of copyright             
     Prior work conflict right and trademark right, is one of the most common types of cases of Trademark Law Article thirty-first first half "other prior rights" protection. At present, that the copyright, between the two issues that need judges and courts and their respective internal clarify ideas, a unified standard.             
     One is about the problem of determining whether the works. The basic premise of the right to set up the earlier works is that copyright patterns constitute the "copyright law" meaning of the works. In general, there are conflicts and trademark works of fine art. According to China's "Copyright Law Implementation Regulations" article fourth (eight) of the Convention, "art, painting, calligraphy, sculpture refers to the lines, colors or other form of aesthetic meaning of graphic or three-dimensional shapes of works of art".             
     In practice, decision about writing, there are two kinds of views. One is that the terms of the prior copyright protection should be used with caution, avoid too big impact to the trademark protection system, the pattern is composed of copyright law on the meaning of the works were determined, often more strictly, often with a pattern design is too simple for, do not recognise their composition, even if the pattern has been copyright the registration organ of registration. For example, in the 3950331st graphics trademarkObjection review of administrative litigation, the court of first instance that the cited trademark Anta company of patternAlthough already carried on the copyright registration, but only by two circular arc lines interchange and become, color is pure bright red, lines, color composition, the graphics are too simple, to achieve the "copyright law" sense of originality height.           
     Another view,Judgment of the works, need not too harsh. First of all, in accordance with the release of the National Copyright Administration of voluntary registration of works "Trial Measures" provisions of article fifth, are not protected by the copyright law works, works, the registration organ shall not register. Authority respect copyright authorities in the field of copyright based on, for obtaining copyright registration pattern, judges and court should recognize the works protected by the copyright law, but not to make a contrary decision.            
     Secondly, the original intention of legislation on the "copyright law" in the "art" from the copyright protection of the broad understanding, do, and should not be interpreted as ordinary life of integrity, can be used for the creation of appreciation or the circulation of "works of art". As long as the works through lines, colors or other means to produce aesthetic significance, has a certain originality, embodies the creative people put intellectual labor, will be able to determine the "works of art". Especially for the trademark pattern, sometimes simple design, eye-catching compared with complex pattern has the advantage of recognition. Therefore, for the trademark pattern is a work, but not to the drawing form simple and denied. For example NikeAdidasLiningAntaTrademark pattern, its form is simple, but the designers have great originality embodies the creation, paid their intellectual labor is not complete a simple picture can be put on a par with the. If only to deny the simple pattern composed of copyright law on the meaning of the works, is a complete departure from copyright law to protect intellectual achievements of the original creator.
             
     A doubt also exist in practice, if the creative work requirements are too low, it will cause the protection of trademark right shocks to the system, if a trademark pattern obtained prior copyright registration, is found in its composition works, can obtain the copyright, the trademark is well-known trademark protection beyond the, can be in any of the categories of goods or services for protection?From the "trademark law" in article thirty-first of the prior right of the legislative intent of view, this provision is to solve the conflict of trademark right and other rights, the infringement of legal rights has a pre-existing condition, the trademark shall not be registered or be revoked. On the conflict of trademark right and copyright, is to protect the copyright owner of intellectual achievement as the basic principle, with the mark pattern and others first "works" constitute "substantial similarity", constitute the others earlier "works" malicious copy, imitation is essential.In determining whether or not there is the conflict between trademark, is to "prevent confusion" as the principle, if the trademark and prior trademark approximation, used in the same or similar goods may lead to consumer confusion, that should not be registered trademarks or use constitute infringement in the post. Therefore, the copyright on the trademark rights and the trademark right against trademark legal relationship is different, the two cannot be put on a par with comparison. The former is to protect the intellectual creations as principle, the prohibition of confusion as the principle; the two patterns constitute "substantial similarity" as the premise, the latter is only to pattern "approximate" as a precondition.Back to the aforementioned problems, the well-known trademark can obtain the protection beyond category, the trademark pattern after just similar to, but also well-known degree cited trademark will be similar trademark judgment effect. But for the prior copyright protection, must take the trademark pattern and others earlier works constitute a substantial similarity is the premise. Therefore, can not simply draw for the copyright protection of the well-known trademark trademark can obtain higher standards of protection or to protect the opportunity of conclusion.
       To sum up, the second view is "substantial" approximation are important elements of earlier works right protection, should make full use of the elements of the scope of protection works have been determined, and should not deny the simple form of simple drawings can be made to work, ruled out the possibility to obtain copyright protection. For the performance of a more simple form works, the substantial similarity judgment is composition of complete works of art, should be more strict. Only in the two pattern in the design lines or colors, almost identical, copying the obvious, in order to obtain copyright protection. The 3950331st graphics trademarkObjection review of administrative litigation case, citing trademark patternAlthough relatively simple, but has certain design, through the lines constitute the artistic aesthetic feeling, and has obtained the copyright registration, shall be deemed to constitute works. Comparison of the pattern and objection trademark pattern, if only from the trademark approximation analysis, it can determine the pattern and the objected trademark is composed of approximately. However, copyright protection to constitute a substantial similarity as the premise, in the cited trademark pattern composition or design relatively simple case, the substantial criteria similar should be more strict. Because of the pattern and the objected trademark is drawing lines, composition design are different, should be judged as not to constitute a substantial similarity, therefore, the objected trademark is not constitute damage prior copyright cases referred to in article thirty-first.
     Whether work is an important prerequisite for the protection of the right of prior work, the differences between two views have influenced the trademark licensing unity is the right that the case, the judges and the court should strengthen the study and exchange, in order to reach a unified standard as soon as possible.             
     Two is the effect on later to prove the copyright registration certificate and prior trademark registration with the. At present, the judges and the court has been basically reached a consensus, after the Department for trademark registration application, the application for registration of copyright certificate or the prior trademark registration certificate are not alone prove prior copyright was established. However, if the copyright claim submitted after the copyright registration certificate, and combined with the prior trademark registration certificate, whether should recognize the mark pattern of copyright? At present, the court and the judges did not form a unified hearing.
       In the "KP KIDS'STUFF and map"Trademark dispute administrative litigation and the trademark "Boumpy"The dispute of administrative litigation, court of third people in the Department for a trademark application for registration of trademark registration certificate, in China after the Department for trademark registration application form of the copyright registration certificate and other evidence, identified the third prior copyright. But in the No. 4097289th "Shilin and map""TIGER and its figure trademark objection review administrative litigation, No. 1032900th"Trademark dispute in administrative litigation, No. 3438976th graphics trademarkObjection review of administrative lawsuit, prior copyright claim submitted after the mark registered trademark registration certificate recently and in the Department for trademark registration application form of the copyright registration certificate and other evidence, but the judges and courts are of the view that the documented evidence is not enough to prove its prior copyright.             
     In practice, many of the works designed trademark pattern is used as a trademark, the copyright owner may not submit or writing papers published evidence, if the burden of proof is too harsh, will make the thirty-first first half "prior right" clause cannot realize the legislative value to solve the conflict of rights, not to prevent malicious cybersquatting is prominent in reality by others earlier works as acts of unfair competition, trademark.             
     In fact, although prior trademark registration certificate and the copyright registration certificate can not be proved independently prior copyright was established, but the combination of the two can complement each other mutual proof. Although, from the formal point of view, if the certificate recognized by the above two evidence combination effect, a party can be in the objection, dispute or procedure to carry out copyright registration, as new evidence is presented, which may make not recognized separately prior trademark registration rules of evidence lost too much practical significance. But in fact, this is not the first trademark registration certificate as proof of ownership of copyright, but only on the creation time of the evidence, and only by prior trademark registration certificate will determine the prior copyright was established by logic or is of a different nature. The evidence rule is based on logic, the copyright registration certificate can be used as preliminary evidence if the pattern of copyright; trademark registration certificate prior can be demonstrated in the Department for trade mark registration date, the parties will have and the Department for substantial similarity pattern trademark pattern as a trademark use facts. The combination of the two copyright claim shall be deemed completed the initial burden of proof, the burden of proof should be transferred to the other party, if it is unable to provide evidence to the contrary, it should be recognized prior copyright was established.
      (five) the anti dilution protection of well-known trademark             
     2009 implementation of the "Supreme People's court interpretation concerning the protection of well-known trademark law of civil disputes application issues" (hereinafter referred to as "well known trademark judicial interpretation") ninth provisions of the second paragraph, "enough to make the public think that the trademark and the well-known trademark has a considerable degree of contact, and decreased significantly, undermining the well-known well known trademark trademark market reputation, or improper use of well-known trademark market reputation, misleading belongs to the section second provisions of the trademark law thirteenth 'public, resulting in the well-known trademark registrant possible damage to the interests of the'".             
     At present, the registered trademark protection should introduce dilution theory and application of specific criteria, there is a big controversy in theory and practice. Beijing City Court has been in the No. 1247835th "CROCOCOLA "trademark, No. 3376170th" two side L.M.ZHENLIANGMIANZHEN and map "trademark, No. 4082115th" Jian Nan Chun "trademark, No. 1368314th" apple "brand," Chanel No. 3221732nd CHANEL and map "trademarks, trademarks objection review of administrative litigation, the judicial interpretation in the" well-known trademark "after the implementation of the trademark law," the scope "thirteenth two paragraph has been expanded from the" cross kind of confusion "to" fade "protection, and discusses constitutes a well-known trademark" desalination "standard.             
     Anti dilution protection of well-known trademark, is not only related to the delimitation of the interests of related rights, but also embodies the protection of IPR in China under the existing legal framework level. The judges and the court should be the scope of protection of well-known trademark is registered "to mislead the public, communication standards so that the trademark registrant possible damage to the interests of the" and the specific considerations, in order to form a unified, easy to handle the implementation of the hearing.

       (six) the adoption of a new procedure of submitting the evidence             
     The first half of 2012, submitted in proceedings in the court, the parties did not submit for review in the procedure of evidence which led to the lost first instance cases rose from 1% last year to 7%, become the first case third reasons.The court often to the evidence of facts is critical to determine whether in or belonging to the "corroboration" on the grounds, the plaintiff is not admissible in evidence submitted by the review procedures.           
      At present, on the impact of litigation evidence to adopt substantive results, there are two main approaches to the court. One is that the presented procedure evidence influence TRAb entity verdict may, if not to consider, is not conducive to the protection of the legitimate rights and interests of the parties. The decision to withdraw the order requirements, TRAb considering new evidence submitted by the parties on the court, re. The typical case as the No. 1748888th "Cabernet" trademark dispute case. Another approach is in the proceedings of the parties directly submit supplementary evidence to be admissible, and make a decision. In practice, the vast majority of admissible evidence cases are using this approach.             
     First of all, for no justifiable reason, not submitted in auditing evidence, whether it should be accepted is questionable in administrative litigation. China's "administrative procedure law" fifth stipulates, "people's courts in handling administrative cases, to examine the legality of specific administrative acts". The Supreme People's court "on the implementation of people's Republic of China Administrative Procedure Law" interpretation of several issues "of the provisions of article fifty-sixth," the specific administrative action is lawful but the rationality of the existence of the problem, the people's court shall reject the claims of the plaintiff".             
     Thus, the administrative litigation should be to review the legality of administrative organs of the specific administrative act as the basic principles, and to submit evidence is not specific administrative acts being sued basis, the court should not be adopted. According to the "Regulations" the Supreme People's Court on several issues of administrative procedure evidence rule fifty-ninth, "the defendant in administrative procedures in accordance with the statutory procedures require the plaintiff to provide evidence, the plaintiff shall provide and refused to provide in accordance with the law, provide evidence in proceedings in the people's court shall not be accepted, the general." Prior to this, the people's court opinion on this subject basically agreed with the TRAb, practice is also very good in the guide correctly and timely, ensure the parties burden of proof trademark licensing rights case role of improving efficiency.             
     Secondly, even if the new evidence submitted may affect the substantive justice, the court did not distinguish between direct be accepted practices questionable in administrative litigation. This will cause the other party trial level loss, damage the legitimate rights and interests. In some cases, such as review or trademark dispute is revoked or cancelled review dispute case, the people's court is whether the parties have the follow-up relief procedure as the standard to decide whether or not to submit proof, in another case, the adoption of new evidence submitted did not make a reasonable explanation. Therefore, for the new evidence submitted may affect the result of the case case, the court should make full reasoning in decision, decided to be admissible, also should not be adopted directly in the procedure of administrative litigation, but should respect the property cases, fully protect the rights of another party, ruling judges and heavy cutting back, and supplemented by evidence submitted the parties bear the costs of litigation.

      (seven) a review materials by the burden of proof             
     Assessment procedures, can appear sometimes notice and material is not the post office returned, if the parties fail to answer the. Some parties have not received the notice of defense or only to receive a copy of the application does not receive evidence Sue I Commission stripped of its defense rights, illegal procedure.             
     In 5411394th, "the bridge" trademark dispute administrative litigation and No. 3043353rd "Amy emilceramica and map" trademark dispute administrative lawsuit, the plaintiff the judges not to the mail dispute application materials, make it unable to participate in the review process, the ruling procedure law, it shall be revoked. The post office issued by the TRAb submitted mailing proved to be the case, the court of first instance that the only evidence of TRAb transfer the relevant materials to the post office the fact, cannot prove that the plaintiff has the actual receipt of the materials, the judges as send Party should provide the proof, otherwise, should bear the legal consequences not proof the. The court of first instance in the No. 5773335th "solid TQPGOVM" trademark dispute administrative lawsuit also expressed the view.             
     I think the committee, court about the burden of proof is designated service, "the relevant provisions on the documents to the Trademark Law Implementing Regulations". According to the "Regulations" article eleventh of the implementation of the trademark law, the Trademark Office and the Trademark Review and Adjudication Board to the party served a variety of file date, mail, the postmark date of receipt by the party concerned shall prevail; the postmark date is not clear or not the postmark, since the document issued after 15 days, as by the parties. The provisions of the trademark office or clear TRAb document delivery date, calculation of relevant follow-up procedures of the date is important. According to the regulations, the TRAb provides mailed evidence, and mailing materials did not return, should be regarded as the 15 day served on the parties have issued the material in the documents. At this time, the judges have been completed and the burden of proof on the file service. If the parties that did not receive the file, it should go to the post office to collect relevant evidence to proof, if cannot prove that the post office has not delivered the mail, shall be in accordance with the relevant provisions of the implementation regulations, to infer the TRAb mailed in 15 days after the date of receipt of the documents.             
     The court served the burden of proof on the division, a distinct lack of operational considerations, will give the practice of trademark administrative organs caused great distress. According to this logic, the review dismissed or objection to review the case the applicant cannot provide the postmark date, if the claim has not mailed the Trademark Office, trademark office needs of the parties is whether the sign for the burden of proof, otherwise it will be treated as trademark bureau did not reach the file. This will lead to formal examination period of the Trademark Review and adjudication procedures can not be normal, significantly deviated from the original intention of legislation "Regulations" provisions of article eleventh the implementation of the trademark law. To sum up, the TRAb submitted post office issued mailed to prove the case, shall be deemed to have completed the burden of proof. At this time, the burden of proof should be transferred, if the plaintiff is that its not received the relevant documents, to provide relevant proof of the post office, otherwise it will be regarded as not established.
       (eight) the parties or revocation of the business license of the trial of the case              
     The first half of 2012, I appointed in the Department for trademark registration is cancelled or revoked business license under the registered trademark may issue and court differences lead to lose the case rate was 4%. In such cases, a court was earlier this year to my commission issued a judicial proposals, should be considered the objected trademark is not allowed to register and save social resources and other factors considered, that is the objected trademark shall not be registered. I reply that, in the current legal framework, not directly on the grounds of the registration shall not be approved or revocation of registration. It is understood, in the enterprise registration management practice, the existence of revocation of the business license of enterprise recovery business qualification; and although the enterprise was revoked business license, but according to the "company law" and the relevant provisions of the law, in its deregistration formalities, still have to dispose of their own property rights. Therefore, in the mark body has yet to write off cases, direct disapproval or cancellation of the trademark may deprive or revocation of the business license of enterprise property rights or other legitimate rights and interests.             
     At present, the court about this kind of case judgment standard is not unified. In the 3848227th "REGITAR" trademark objection review of administrative litigation, the court of first instance that is the objection trademark application for registration has been revoked the business license for three years, its not for the liquidation of the company and the cancellation procedures within a reasonable period of time, is not within a reasonable period of time transfer was objection trademark, presumption has no use is subjective intention objection trademark objection, trademark has not been registered by and save social resources and other factors considered, that is the objected trademark shall not be registered. In 1566589th, "Kang Ming" trademark dispute administrative lawsuit, TRAb according to documented evidence dispute the registration of a trademark constitutes the thirty-first part refers to the situation, it shall be revoked. But the court held that, even before third people apply for the registration of a trademark dispute has been in the cooling tower in goods using the "Kang Ming" brand or trademark and has a certain influence, but in view of its business license is revoked has been for three years, it has lost the will "Kang Ming" as the name or trademark is engaged in production management activities of the qualification, the relevant public in fact there is no likelihood of confusion. On this basis, the judges on the basis of Trademark Law Article thirty-first for revocation of the trademark in dispute has no practical significance and necessary, which should be corrected.             
     In 4111700th, "the East glue and map" trademark objection review of administrative litigation, the court of first instance court has expressed contrary to the first two cases perspective. In this case, TRAb determination shall be approved and registered by the trademark in question. The plaintiffs in the lawsuit of third people has been revoked the business license, the lost is eligible to apply for the main objection trademark. The court thinks, although third people business license has been revoked, but it did not cancelled, the qualification of legal entity still exist. In this case, can not be regarded as the third people have lost the objection trademark application was the main qualifications, the plaintiff's claim is untenable.
      (nine) the examination request leakage problems             
     The first half of 2012, and lost as a result of leakage review and request a trial 9 court cases, account for 7%, including the legal basis for the trial of the cited trademark trial and leakage leakage party put forward. On the "leak trial", is a review decision did omissions, not to make a comprehensive review of the reasons or the cited trademark; another situation is due to the unclear, caused by the examiners and judges to understand inconsistent. As No. 1490326th "shelter" trademark objection to review the case, the plaintiff in the objection review reasons that "is the enterprise name and trademark shelter", not a cooking method, used as a food service and related commodity trademarks have significant. The two trial is the plaintiff in the objection review involves is significant objection trademark grounds, that TRAb leak trial objection reason, belongs to the illegal procedure. And the situation on the contrary, in the previous 3865115th "Jin Ling JINLING" trademark dispute case, the plaintiff claims that its "JINLING" brand and trademark has a high visibility, third people aware of this fact and the trademark dispute, unfair competition, have a negative impact. The judges the trademark dispute whether harm to the plaintiff's name right and whether it constitutes by unfair means such as squatting focus on trial, the court ruled that exceed authority, illegal procedure.             
     For the first case, our commission should be caused take seriously, actively respond to. On the one hand, we should adhere to both efficiency and quality, to strengthen the review case control and management of quality, comprehensive and detailed request for the review review. On the other hand, in the assessment practice, due to the applicant or the agent level uneven, review the application does not explicitly put forward the legal clauses or even though some related terms, but in the statement of reasons, but Gu around his situation is not rare, this to the inspectors concluded cases focus much more difficult. In reference to the applicable law or the cited trademark raised by the parties may produce the differences, can communicate with the client in writing or by telephone, requiring it to be clear. In second cases, the judges and the people's court disagreement in understanding, should strengthen communication, is the focus of controversy of the case to define the problems and defects of the illegal procedure and further exchanges.