Trademark objection, review, cancel the trademark administrative litigation:

Trademark rights litigation: against the State Administration for Industry and Commerce TRAb's decisions to all administrative litigation cases and appeals of one quadrangle of Beijing.

(a) about trademark rejected the administrative litigation cases review decisions; thirty-second

(two) on the administrative litigation case ruled that the trademark objection review; thirty-third

(three) administrative litigation cases concerning trademark dispute adjudication;

    The cancellation of improperly registered trademark cases (controversial) forty-first article first, paragraph 2

     Cases of trademark disputes (controversy) in the third paragraph forty-first

(four) on the administrative litigation trademark is revoked or maintenance decision.

             Such as:Undo three years did not use

Characteristics of trademark administrative jurisdiction cases:

Complex, major cases more, the more attention.

Action time, many cases have to hit the court retrial cases relatively high fees at present such cases more, trademark objection, review of the case has five, sixty thousand, trademark administrative jurisdiction cases each year thousands of pieces.

A trademark, a rejection of administrative litigation cases reexamination decision

1, the legal basis: "trademark law" thirty-second article "to reject the application, no publication of the trademark, the Trademark Office shall notify the applicant for trademark registration. Trademark registration applicant may, within fifteen days of the Trademark Review and Adjudication Board for review upon receipt of the notice, decided by the Trademark Review and Adjudication Board, and notify the applicant in writing. If a party refuses to accept the decision of the Trademark Review and Adjudication Board, can the people's court within thirty days from receipt of the notification."

2, the program:

The Trademark Office "rejection notice" to apply for a review by the judges  The judges decideRefuses to accept the decision             To the people's court

The main reason 3, in judicial practice:

The absolute reason to be rejected

(1) whether a trademark is significant;

(2) there is no violation of "trademark law" article tenth, Article 11, Article 12 provisions; such as: "Tianqi" (toothpaste) """Zanthoxylum nitidum" (toothpaste) "the trademark trial standards" provisions, "sign after use has a specific meaning of the market, has become a symbol of the relevant public recognition of the use of goods or services provided, can be registered as trademark". The only long-term, broad, well known. Consumers see the logo, can immediately and operators to use the logo link relative grounds is rejected

(3) the prior registration or prior applicant for trademark is the same, the approximate; and prior registration or prior application of trademark use goods or services are similar. Mainly two similar trademarks or similar goods

Two, decisions about trademark objection and review of the administrative proceedings

1, the legal basis: "trademark law" thirty-third article "preliminary validation, announce the trademark objection, the Trademark Office shall listen to the opinions of the opponent and applicant state facts and grounds, after investigation and verification, make a ruling. Party refuses to obey, can be fifteen days to the Trademark Review and Adjudication Board for review from the date the notification is received by the Trademark Review and Adjudication Board, make a decision, and notify the opponent and the opponent.

2, the program: trademark application        The trademark office notice of first instance       (anyone) objection         The Trademark Office shall make a ruling against the ruling for review;       The judges ruled                            To the court

3, trademark objection (anyone)        Applicant (the trademark registration applicant)

Two, decisions about trademark objection and review of the administrative proceedings

1, the legal basis: "trademark law" thirty-third article "preliminary validation, announce the trademark objection, the Trademark Office shall listen to the opinions of the opponent and applicant state facts and grounds, after investigation and verification, make a ruling. Party refuses to obey, can be fifteen days to the Trademark Review and Adjudication Board for review from the date the notification is received by the Trademark Review and Adjudication Board, make a decision, and notify the opponent and the opponent.

2, the program: trademark application        The trademark office notice of first instance       (anyone) objection         The Trademark Office shall make a ruling against the ruling for review;       The judges ruled                            To the court

3, trademark objection (anyone)        Applicant (the trademark registration applicant)

The main objection reason 4, practice:

(1) whether or not in violation of "trademark law" prohibition provisions;

(2) is a violation of trademark rights;

(3) conflicts with prior rights of others;

(4) the same or similar trademarks similar goods trademark with others.

5, trademark objection review and program relation:

(1) "a new trial said:" objection review

(2) "the administrative reconsideration relationship": review dismissed

"The Trademark Review and Adjudication Rules" twenty-eighth stipulates: "the Trademark Appraisal Committee may review of the case hearing Trademark Office ruling on trademark disputes, should the fact, and reasons for the parties to review the application and the reply of the request for review."

The provisions of article twenty-seventh:"...... The Trademark Office shall according to the decision of rejection and the applicant to apply for reexamination of the facts, reasons, request and review the fact status review."

(3): practical significance in objection review, can put forward new reasons, put forward the new evidence.

Three, trademark disputes: the registered trademark in dispute

(a) cancellation of improperly registered trademark: "types and points of controversy" case

1, violation of the trademark dispute provisions

 (1) the legal basis: "trademark law" article forty-first paragraph first "registered trademark, in violation of this Law Article tenth, article eleventh, the provisions of article twelfth, or by deception or other improper means to obtain registration, the registration of a trademark trademark; and any other organization or individual may request the trademark review and adjudication the committee ruled that the revocation of the registered trademark."

 Reasons: (2) is mainly based on absolute grounds (direct legal provisions prohibiting, rather than with others formerly registered trademark); or the trademark registrant subjectively for fraud or unfair competition;

The "trademark law" article tenth (prohibition as a symbol of the use of the trademark)

The "trademark law" article eleventh (prohibition sign as a trademark registration)

The "trademark law" article twelfth (a three-dimensional sign as the special requirements of a registered trademark)

④To obtain a registration by deception or other improper means

(3) dispute people: this type of applicant qualifications for anyone

(4) dispute time: unlimited application time, can be proposed in the trademark within the period of validity

2, violation of the trademark dispute relative reason

(1) the legal basis: "trademark law" article forty-first paragraph second "registered trademark, in violation of this Law Article thirteenth, article fifteenth, article sixteenth, the provisions of article thirty-first, within five years from the date of registration of trademarks, the trademark owner or any interested party may request the Trademark Review and Adjudication board to cancel the registered trademark. Malicious registration of trademarks, all without the time limit of five years."

(2) the reason:

 The "trademark law" article thirteenth (protection of well-known trademark)

The "trademark law" article fifteenth (Prohibition of malicious registered agent)

The "trademark law" article sixteenth (GI)

The "trademark law" article thirty-first (prior rights and malicious cybersquatting)

(3) dispute period:

In 5 years (the disputed trademark registration date, the malicious registration, The well-known trademark owner without the 5 year limit)

(4) the dispute: the trademark owner or an interested person.

A. well-known trademark owner    

B. prior right (prior copyright person, first appearance design patent right, right of portrait, people first

C. prior use of trademark owners

The first paragraph: violation of provisions disabled (tenth, 11, 12) or by deception or improper means to obtain registration -- anyone can mention -- without time limit.

The second paragraph: violation of the thirteenth, 15, 16, 31 -- the owner of trademark or the interested party can raise -- 5 years (except for the well-known trademark)

5, "trademark law" article thirty-first

"The application for trademark registration shall be without prejudice to the prior right of another person, or by improper means to register is already in use by another party and has certain influence trademark."

(1), to the "no damage to the prior right of another person" general understanding:

 The "prior right":

Prior rights more unified understanding include: name right, portrait right, copyright, patent right. But does not include the "trademark" and "the right of prior use unregistered trademarks" (for a controversial relief): A. about "trade name / trade name right": in principle, can be to meet certain conditions of the brand into the scope of enterprise name, constitute a prior right to be protected. B. specific names of famous goods and packing: in principle can be applied according to the "supreme law of several issues concerning trademark licensing administrative cases confirmation opinions" seventeenth "trademark law have no special provisions, but according to the provisions of the general principles of the civil law and other laws shall be protected to the legitimate rights and interests, should be based on the general regulations for protection."

The "existing" understanding:

Demand has been formed and prior rights is valid according to the "supreme law of several issues concerning trademark licensing administrative cases is the right advice" section second "seventeenth to the general litigation trademark application date. If the prior right of approval of the registration of trademark in dispute is not exist, does not affect the registration of a trademark dispute."

(2), the legal understanding of cybersquatting is already in use by another person and have a certain influence trademark issues:

The controversial two conditions:

One, has a certain influence prior use unregistered trademarks;

Secondly, the registered registered first means having improper sexual.

How to understand "the legal meaning has certain influence":

 A. has been used in China and known as the certain region public unregistered trademarks;

B. is a relative standard, to influence range of the involved and public awareness level should not be excessive demanding;

C. judicial practice, requirements will be relatively low.

The judgment of "have a certain influence on" time limit: controversy in applying for trademark registration on time limit

③ "have a certain influence" criterion:

 A. "certain areas" is the concept of a regional rather than a national, prior use of trademark has a certain influence on the principle of the main sales or business;

 B.: as far as possible to provide sufficient evidence of official authority or a higher level of the issued certificate etc..

The use of improper means to preemptively register behavior

"Opinions" trademark rights to the administrative case eighteenth "if the applicant knows or ought to know that others have used and have a certain influence of the trademark to be registered, can be identified by unfair means."

Prior use unregistered trademarks act:

The real use of A. in commercial activities: should occur in actual business activities, is real and non use of form;

B. continued use;

C. used in the Chinese territory;

The use of D. legitimate: if not registered trademark itself of the use of illegal behavior, such as in the country requires the use of a registered trademark used on goods of unregistered trademark, that is not entitled to the rights and interests. As the quality of the goods does not conform to the rules or the prior use right has not obtained the production license, we cannot deny the unregistered trademark prior use of the effect.

 Inherited E. using "interests:

Prior use one can prove that the relationship between legitimate and effective replacement program, would inherit the benefits of using behavior.

The unregistered but are in the same or similar goods trademarks only resistance behaviour in the trademark registration.

The interested persons: the owner of the trademark not registered and unregistered trademark, the transferee, the licensee and the other can prove unregistered trademarks and interested people are subject qualification.

Determination of 6, about "deception or other improper means"

The idea that the terms of procedural provisions, a party filed a trademark dispute procedure basis, rather than real reason;

The idea that can be used to cancel a registered trademark on the basis of the entity. Even as the real reason, there are differences, mainly in the scope of its application is only applicable to damage the public interests and public order, absolutely can note reason, still include relative forbidden for injection. The judges "trademark trial standards" will be "deception or other improper means" clear "to resort to deceit is the competent authority means to cheat to obtain trademark registration trademark administrative behavior" and "unfair competition, to seek illegal interests based on the purpose of malicious behavior, register".

"The supreme law of several issues concerning trademark licensing administrative cases confirmation opinions" nineteenth clear "people's courts in the trial of administrative cases relating to revoke the registered trademark, judgement of litigation trademark is registered by other improper means, to consider whether it belongs to the deception outside disturb trademark registration order, and damage public interest, illegal occupation of public resources or otherwise seek improper interests. The only damage specific civil rights cases, to other relevant provisions shall apply to the trademark law article forty-first paragraph second, paragraph third and the Trademark Review and judge."

The clear two points: (1) is the real reason; (2) apply only to damage public interests situation, later will not be against specific civil rights revocation reasons cited the first paragraph of article forty-one "by fraud or any other unfair means," but the applicable trademark law article forty-first, paragraph three and second other trademark law provisions.

(two) small disputes: the owner of a registered trademark of others to register after his trademark based on, and he was in the same goods or similar goods registered trademark identical or similar and the dispute.

Legal basis: "trademark law" article forty-first paragraph third "in addition to the provisions of the preceding two paragraphs of the cases, there are disputing a registered trademark may, within five years from the date of approval of the trademark registration, apply to the Trademark Review and adjudication."

Period     Limit: 5 years (from the date of approval of the registration of the trademark)

ContentionDiscussion: prior trademark registrant

The focus of the case is generally limited to the trademark is used on the same kind of goods or similar goods of the same or similar trademarks

(three) the effectiveness of a registered trademark is revoked:

"Trademark" Regulations for the implementation of thirty-sixth "according to the provisions of the trademark law article forty-first to revoke a registered trademark, the trademark rights deemed to be nonexistent".

Four, trademark is revoked

The narrow sense: mainly refers to the "trademark law" article forty-fourth, article forty-five

      Three years without the use of trademark revocation request

(a) "method" three years: from the applicant to apply to the Trademark Office for the revocation of the trademark registration date, forward pass three years.

(two) the use of trademark act:

1, must conform to the statutory forms: such as attached to the goods, packaging, container.

2, must be to regulate the use of the registered trademark

The use of the trademark has been approved for registration

A. according to "the supreme law several issues concerning trademark licensing administrative cases confirmation opinions" Twentieth stipulates: "the actual use of the trademark and the approved and registered by the Trademark Office has nuances, but did not change its remarkable characteristics, can be regarded as the use of a registered trademark."

B. such as the two major part of a trademark or significantly different characteristics, not as the use of a registered trademark.

In the approved use goods / services

The principle of A. is to use can be similar to the goods or services of a commodity or service. And not similar goods should be revoked.

B. in the approved and the goods / services similar non approved commercial use is not regarded as a registered trademark. "GNC" case, the use of the trademark on the "honey", registered approved commodities as "non medical nutrition of fish oil".

The use of behavior must occur in Hong Kong and Macao Taiwan Taiwan use domain independent legal system, used in Hong Kong and Macao, cannot be used for the use of registered trademarks in China.

It should be is the use of "trademark under the control of the supreme law of several issues concerning trademark licensing administrative cases is twentieth opinions" provisions of the second paragraph, "use of trademark licensing, and other use of trademark right against the will of the people, can be found in the actual use of behavior."

It must be open, true, legitimate commercial use:

A. separate license, the assignment of a registered trademark does not act as a trademark registration trademark.

Released, B. alone trademark registration information statement is not regarded as commercial use of registered trademarks. Such as trademark notice, notice. "If a city registered trademark notice"

Justification for the three consecutive year to stop using the:

 A. does not force majeure: natural phenomena, war;

 B. policy restriction: generally occurs only after the registration of a trademark;

Discontinue use of C. for bankruptcy liquidation;

D. trademark has real intent to use the trademark, which is necessary for practical use, but because the other objective reasons not yet practical use of registered trademarks, can be identified with the right reasons ("the supreme law concerning trademark licensing administrative case certain questions opinions" article twentieth paragraph third)

(three) the main evidence materials used

Invoice; contract; advertising; product inspection reports; product declaration; trademark printing proof materials, packaging materials.

The above evidence materials must meet the following requirements:

1,The evidence material to be applied for trademark logo;

2,Evidence must be able to display the application for trademark user;

3,Evidence must be produced in the required for three consecutive years;

4,Evidence must be originals or notarized copy

(four): validity of trademark revocation of a registered trademark is revoked in accordance with the provisions of the Trademark Law Article forty-fourth, article forty-five, will be published by the Trademark Office; revocation decision terminated on the date of the exclusive right to use the registered trademark since the Trademark Bureau

Five, the other should pay attention to the problem

(a) to correct application of law. Refer to a legal basis, as the objection or the dispute must be clear, the evidence is to surround the reason organization.

(two) the evidence requirements

In administrative proceedings, unless new evidence or trademark disputes shall not access to the evidence, the parties will not re submit new evidence. This requires the dispute and the respondent should pay full attention to the trademark dispute and defense programs, in the trademark and reply timely, effective and legitimate article submitted to all kinds of material evidence. But, from our experience in handling cases, such as the evidence must also be submitted in the stage of the proceedings.