Page 90 - 2016_WhitePaper_web
P. 90
6 White Paper on the Business Environment in China
patent infringing act is established and makes a deci- terms and clauses of well-known trademarks during administra-
sion to punish, it shall notify the e-commerce platform tive or judicial proceedings. For the cases where parties have not
suppliers to take measures including deleting, blocking requested determination of well-known trademarks, the Trade-
or disconnecting the links, of the relevant web pages of mark Appeals Board will not determine this matter initially.
patent infringing products or the infringing products
that were obtained through patented methods. This Second, to make decisions on well-known trademarks by
article in detail provides, the method to be employed strictly following the procedures and conditions specified in
by patent administrative law enforcement personnel in the Trademark Law, Regulation on Implementation of Trade-
handling cases, where the acts in the exhibition or on mark Law, Rules for the Review and Hearing of Trademarks and
the e-commerce platform constitute patent infringing Provisions on the Determination and Protection of Well-Known
acts, provides a legal basis on how to enforce the law, Trademarks.
thus indirectly increasing the efficiency of handling
this kind of patent infringing acts. Third, each stage of the trial process has the clear duty,
authority and responsibility to ensure the cases to be tried im-
Revision on Provisions on the Determina- partially.
tion and Protection of Well-Known Trademarks
Fourth, the strict requirements on authenticity, legitimacy
The Fourth Session of the Standing Committee of the and relevance of the evidence for cases of determination of
Twelfth National People’s Congress reviewed and adopted well-known trademarks require the parties to fully exchange
the Decision on Amending the Trademark Law. The amend- their evidence. Evidence that is not exchanged and subjected
ed Trademark Law re-establishes and clarifies the well-known to cross-examination may not be considered.
trademark system. The original Provisions on Determination
and Protection of Well-known Trademarks (referred to as origi- Fifth, the law establishes subsequent judicial review pro-
nal “Provisions”) was the key legal document for the industry cedure for all trademark appraisal cases including those in-
and commerce system to implement the Trademark Law. It volving well-known trademarks. If either party does not agree
played a role in determination and protection of well-known with the Trademark Appeals Board’s ruling, the party may file
trademarks during administrative procedures by industry and a lawsuit with the people’s court.
commerce authorities at differing levels. Since the implemen-
tation of the original Provisions in 2003, it has helped slightly The new Provisions puts forward new re-
in safeguarding the systemization, standardization and rou- quirements on the work of well-known trade-
tinization of work on well-known trademarks, setting up the marks.
authority of the administration for industry and commerce
in determination and protection of well-known trademarks. To standardize the handling of cases on well-known marks,
However, the original Provisions’ determination standards the new Provisions adds a series of requirements. First, it adds
failed to provide concrete guidance and the mass publication time limits for the local industrial and commercial bureaus to
of results of recognition created public misconception that provide its results in relation to handling well-known trade-
determination of well-known trademarks is an administra- mark cases to the trademark office in investigating cases and
tive approval or appraisal for a grant of honor. Therefore, the punishing trademark-related violations of law. Second, it pro-
State Administration for Industry and Commerce undertook vides where the trademark office and the Trademark Appeals
revision according to the new Trademark Law with a focus Board need the relevant local authorities for industry and
on “standardizing procedures, refining goals, [and] clarifying commerce to verify the relevant situation during case trial pro-
responsibilities”, for resolving issues of determination of well- cesses, local authorities for industry and commerce shall pro-
known trademark litigation. vide such assistance. Third, in the investigation and handling
of trademark-related violation cases, where a party commits
Changes in proceedings to determinate well-known trade- fraud during procedures for determination and protection of
marks include: (1) the determination of well-known trade- well-known trademarks, through unfair means such as pro-
mark put more emphasis on legal case requirements; (2) make viding false evidentiary materials, the determination that has
it more convenient for the parties to satisfy evidentiary re- been made on the involved trademark can be revoked. Fourth,
quirements; and (3) clarify the responsibility of the parties where a local administration for industry and commerce fails
and the administration for industry and commerce. to fulfil its verifying and reviewing duties on relevant mate-
rials for determination of a well-known trademark, fails to
First, the Trademark Appeals Board will not decide wheth- provide assistance or fails to perform its verifying duties, fails
er, as a matter of fact, a trademark is well-known on its own to handle the trade-mark related violation of law cases or fails
volition. A party must first request protection pursuant to the to report the handling results, the superior administration for
industry and commerce shall notify the same and order it to
90 undertake its responsibilities accordingly.
patent infringing act is established and makes a deci- terms and clauses of well-known trademarks during administra-
sion to punish, it shall notify the e-commerce platform tive or judicial proceedings. For the cases where parties have not
suppliers to take measures including deleting, blocking requested determination of well-known trademarks, the Trade-
or disconnecting the links, of the relevant web pages of mark Appeals Board will not determine this matter initially.
patent infringing products or the infringing products
that were obtained through patented methods. This Second, to make decisions on well-known trademarks by
article in detail provides, the method to be employed strictly following the procedures and conditions specified in
by patent administrative law enforcement personnel in the Trademark Law, Regulation on Implementation of Trade-
handling cases, where the acts in the exhibition or on mark Law, Rules for the Review and Hearing of Trademarks and
the e-commerce platform constitute patent infringing Provisions on the Determination and Protection of Well-Known
acts, provides a legal basis on how to enforce the law, Trademarks.
thus indirectly increasing the efficiency of handling
this kind of patent infringing acts. Third, each stage of the trial process has the clear duty,
authority and responsibility to ensure the cases to be tried im-
Revision on Provisions on the Determina- partially.
tion and Protection of Well-Known Trademarks
Fourth, the strict requirements on authenticity, legitimacy
The Fourth Session of the Standing Committee of the and relevance of the evidence for cases of determination of
Twelfth National People’s Congress reviewed and adopted well-known trademarks require the parties to fully exchange
the Decision on Amending the Trademark Law. The amend- their evidence. Evidence that is not exchanged and subjected
ed Trademark Law re-establishes and clarifies the well-known to cross-examination may not be considered.
trademark system. The original Provisions on Determination
and Protection of Well-known Trademarks (referred to as origi- Fifth, the law establishes subsequent judicial review pro-
nal “Provisions”) was the key legal document for the industry cedure for all trademark appraisal cases including those in-
and commerce system to implement the Trademark Law. It volving well-known trademarks. If either party does not agree
played a role in determination and protection of well-known with the Trademark Appeals Board’s ruling, the party may file
trademarks during administrative procedures by industry and a lawsuit with the people’s court.
commerce authorities at differing levels. Since the implemen-
tation of the original Provisions in 2003, it has helped slightly The new Provisions puts forward new re-
in safeguarding the systemization, standardization and rou- quirements on the work of well-known trade-
tinization of work on well-known trademarks, setting up the marks.
authority of the administration for industry and commerce
in determination and protection of well-known trademarks. To standardize the handling of cases on well-known marks,
However, the original Provisions’ determination standards the new Provisions adds a series of requirements. First, it adds
failed to provide concrete guidance and the mass publication time limits for the local industrial and commercial bureaus to
of results of recognition created public misconception that provide its results in relation to handling well-known trade-
determination of well-known trademarks is an administra- mark cases to the trademark office in investigating cases and
tive approval or appraisal for a grant of honor. Therefore, the punishing trademark-related violations of law. Second, it pro-
State Administration for Industry and Commerce undertook vides where the trademark office and the Trademark Appeals
revision according to the new Trademark Law with a focus Board need the relevant local authorities for industry and
on “standardizing procedures, refining goals, [and] clarifying commerce to verify the relevant situation during case trial pro-
responsibilities”, for resolving issues of determination of well- cesses, local authorities for industry and commerce shall pro-
known trademark litigation. vide such assistance. Third, in the investigation and handling
of trademark-related violation cases, where a party commits
Changes in proceedings to determinate well-known trade- fraud during procedures for determination and protection of
marks include: (1) the determination of well-known trade- well-known trademarks, through unfair means such as pro-
mark put more emphasis on legal case requirements; (2) make viding false evidentiary materials, the determination that has
it more convenient for the parties to satisfy evidentiary re- been made on the involved trademark can be revoked. Fourth,
quirements; and (3) clarify the responsibility of the parties where a local administration for industry and commerce fails
and the administration for industry and commerce. to fulfil its verifying and reviewing duties on relevant mate-
rials for determination of a well-known trademark, fails to
First, the Trademark Appeals Board will not decide wheth- provide assistance or fails to perform its verifying duties, fails
er, as a matter of fact, a trademark is well-known on its own to handle the trade-mark related violation of law cases or fails
volition. A party must first request protection pursuant to the to report the handling results, the superior administration for
industry and commerce shall notify the same and order it to
90 undertake its responsibilities accordingly.
