Page 76 - 2015_WhitePaper_web
P. 76
5 White Paper on the Business Environment in China
of electronic messages, which shall be deemed to have registered trademark, etc.
been served 15 days from the date when the document • The new Trademark Law makes significant revision
was sent, unless the applicant has evidence to prove
the date when the document entered into its electronic to the procedures related to raising objections to
system. registration. Once the Trademark Office decides
• The Regulations further define the operation procedures to approve registration, it shall issue a certificate of
of the application division which not only applies to trademark registration immediately and no application
multi-class applications but also applies to single class for reconsideration will be considered. However, the
applications, making it more convenient for the applicant objector to registration, pursuant to the Trademark
to obtain preliminary approval by the Trademark Office Law, Articles 44 and 45 can apply to the Trademark
of its trademark application. The Regulations for Review and Adjudication Board in an attempt to have
Implementation of the Trademark Law provide that if the the registered trademark declared invalid.
Trademark Office rejects part of the designated products • Where foreign persons are applicants, they must designate
in a trademark registration application, the applicant may a recipient in China to receive certain documents from
divide the preliminarily approved part of the application the Trademark Office and/or Trademark Review and
into another application, which application date shall be Adjudication Board.
the original application date. • As to the provisions of the Trademark Law, Articles 39
• The Regulations for Implementation of the Trademark and 40, the Regulations provide that the term of the
Law have revised some of the content concerning trademark shall commence on its registration date and
trademark review and adjudication, for the convenience expire on the day before the same day of the last month
of the applicant and for the maintenance of fair of the term, or the last day of the last month of the
competition, by prohibiting what is called malicious term, if there is no corresponding day in the term.
registration applications. New Rules applicable to all
Trademark Office procedures, defining the method Proposal of the Fourth Amendment to the
of using data messages, provide that documents Patent Law
submitted by express-delivery companies shall have the
same validity as those delivered by postal authorities, e State Intellectual Property O ce, in January 2013
clarifying provisions of service of legal documents, and submitted a draft amendment to the Patent Law for approval
perfecting time period calculations. by the State Council. e Legislative A airs of the O ce of
• Previously, documents delivered through express services the State Council is currently reviewing this draft. Pursuant to
were considered received from the Trademark Office when this draft the State Intellectual Property O ce held a seminar
the Trademark Review and Adjudication Broad received regarding the contents of these draft amendments.
the document. The new regulations provided that the
date of the documents’ delivery shall be the date when the 1.Decision on Announcement of Invalidation of a Patent and Its
express delivery company receives such documents. E ective Date
• The Regulations provide that if during periods of
service of documents the additions and corrections are Presently, the average time period for a patent administrative
made, such interruptions shall not be counted so as to procedure in China is 537 days, since patent infringement
jeopardize a priority right. cases involve counter-claims if patent of invalidity. Presently
• To expedite applications new time limitations have if an Applicant is not satis ed with the decision made by the
been provided for in the Regulations. Thus when Patent Reexamination Board, he may institute administrative
the Trademark Office considers the contents of a proceedings where the Patent Reexamination Board becomes
Trademark Registration application needs explanation the Defendant, or if the Patent Reexamination Board is
or revision, the applicant is to revert to the Trademark unwilling to be the defendant, it may act as a quasi-judicial
Office within 15 days of receipt of such notice. organ. In the latter case, the Patent Reexamination Board
• The recording of licenses of trademarks need not be acts as a court of rst instance. Its decision can be appealed
made within three months of the execution of the without the need to initiate another proceeding.
licensing contract, but can be made at any time within
the effective term of the licensing contract. Said 2. Punitive Damages
recording shall specify the licensor, licensee, licensing As to damages, for patent infringement, many patent
term, scope of licensed products or services of the
cases adopt statutory damage standards, which are generally
76 low, while the proceedings are very long. is is sometimes
referred to as “win the lawsuit but lose the market”. Punitive
of electronic messages, which shall be deemed to have registered trademark, etc.
been served 15 days from the date when the document • The new Trademark Law makes significant revision
was sent, unless the applicant has evidence to prove
the date when the document entered into its electronic to the procedures related to raising objections to
system. registration. Once the Trademark Office decides
• The Regulations further define the operation procedures to approve registration, it shall issue a certificate of
of the application division which not only applies to trademark registration immediately and no application
multi-class applications but also applies to single class for reconsideration will be considered. However, the
applications, making it more convenient for the applicant objector to registration, pursuant to the Trademark
to obtain preliminary approval by the Trademark Office Law, Articles 44 and 45 can apply to the Trademark
of its trademark application. The Regulations for Review and Adjudication Board in an attempt to have
Implementation of the Trademark Law provide that if the the registered trademark declared invalid.
Trademark Office rejects part of the designated products • Where foreign persons are applicants, they must designate
in a trademark registration application, the applicant may a recipient in China to receive certain documents from
divide the preliminarily approved part of the application the Trademark Office and/or Trademark Review and
into another application, which application date shall be Adjudication Board.
the original application date. • As to the provisions of the Trademark Law, Articles 39
• The Regulations for Implementation of the Trademark and 40, the Regulations provide that the term of the
Law have revised some of the content concerning trademark shall commence on its registration date and
trademark review and adjudication, for the convenience expire on the day before the same day of the last month
of the applicant and for the maintenance of fair of the term, or the last day of the last month of the
competition, by prohibiting what is called malicious term, if there is no corresponding day in the term.
registration applications. New Rules applicable to all
Trademark Office procedures, defining the method Proposal of the Fourth Amendment to the
of using data messages, provide that documents Patent Law
submitted by express-delivery companies shall have the
same validity as those delivered by postal authorities, e State Intellectual Property O ce, in January 2013
clarifying provisions of service of legal documents, and submitted a draft amendment to the Patent Law for approval
perfecting time period calculations. by the State Council. e Legislative A airs of the O ce of
• Previously, documents delivered through express services the State Council is currently reviewing this draft. Pursuant to
were considered received from the Trademark Office when this draft the State Intellectual Property O ce held a seminar
the Trademark Review and Adjudication Broad received regarding the contents of these draft amendments.
the document. The new regulations provided that the
date of the documents’ delivery shall be the date when the 1.Decision on Announcement of Invalidation of a Patent and Its
express delivery company receives such documents. E ective Date
• The Regulations provide that if during periods of
service of documents the additions and corrections are Presently, the average time period for a patent administrative
made, such interruptions shall not be counted so as to procedure in China is 537 days, since patent infringement
jeopardize a priority right. cases involve counter-claims if patent of invalidity. Presently
• To expedite applications new time limitations have if an Applicant is not satis ed with the decision made by the
been provided for in the Regulations. Thus when Patent Reexamination Board, he may institute administrative
the Trademark Office considers the contents of a proceedings where the Patent Reexamination Board becomes
Trademark Registration application needs explanation the Defendant, or if the Patent Reexamination Board is
or revision, the applicant is to revert to the Trademark unwilling to be the defendant, it may act as a quasi-judicial
Office within 15 days of receipt of such notice. organ. In the latter case, the Patent Reexamination Board
• The recording of licenses of trademarks need not be acts as a court of rst instance. Its decision can be appealed
made within three months of the execution of the without the need to initiate another proceeding.
licensing contract, but can be made at any time within
the effective term of the licensing contract. Said 2. Punitive Damages
recording shall specify the licensor, licensee, licensing As to damages, for patent infringement, many patent
term, scope of licensed products or services of the
cases adopt statutory damage standards, which are generally
76 low, while the proceedings are very long. is is sometimes
referred to as “win the lawsuit but lose the market”. Punitive
