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Rules for Trademark Review and Adjudication (2002)

( Revised on 17 September 2002 by the State Administration for Industry and Commerce )

Hearing

Article 30.   The Trademark Review and Adjudication Board shall set up a collegial panel to hear a case of trademark review and adjudication. The collegial panel shall be composed of an odd number of three or more trademark review and adjudication staff members. However, cases with clear facts and simple circumstances to be heard by the Trademark Review and Adjudication Board may be reviewed and adjudicated solely by an individual trademark review and adjudication staff member.

Article 31.   In any one of the following circumstances, an individual trademark review and adjudication staff member may solely review and adjudicate a case:

(1) where a trademark which has cited by the Trademark Office in its rejection decision or opposition adjudication has lost the exclusive right or the right of priority therein;

(2) where a trademark of which a request for cancellation has been filed has lost the exclusive right therein;

(3) where a trademark which has cited by the Trademark Office in its rejection decision is actually owned by an applicant, but rejected by the Trademark Office because the applicant fails to go through the formalities for a change in time, and the applicant applies, during the review and adjudication, to the Trademark Office to complete the formalities for the change;

(4) where a trademark, cited by the Trademark Office in its rejection decision, in respect of which another person has filed a prior application or which he has been granted the registration has been, during the review and adjudication, approved to be assigned to the applicant; or

(5) any other cases which the Trademark Review and Adjudication Board decides that they may be under the sole review and adjudication by an individual trademark review and adjudication staff member.

Article 32.   After the trademark review and adjudication staff members are decided on, the Trademark Review and Adjudication Board shall notify the interested parties in writing in a timely manner.

Article 33.   Where an interested party applies for the withdrawal of a trademark review and adjudication staff member according to the provision of Article 9 of the Implementing Regulations and Rule 9 of these Rules, he shall file the application within fifteen days from the date of being informed of the trademark review and adjudication staff members. Where a party finds out the circumstance in which some relevant trademark review and adjudication staff member should withdraw at the expiration of the time limit, he may do so before a review and adjudication decision or adjudication is made, but he shall furnish relevant evidence.

Any trademark review and adjudication staff member whose withdrawal has been applied for shall suspend his participation in the hearing of the case before the Trademark Review and Adjudication Board decides whether or not he should withdraw.

The Trademark Review and Adjudication Board's receipt of a party application for withdrawal after it makes decision or adjudication shall not affect the validity of the review and adjudication decision or adjudication.

Article 34.   In respect of a party's application for withdrawal, the Trademark Review and Adjudication Board shall make its decision within seven days after the date of the receipt of the application, and notify the applicant in writing. An applicant who is not satisfied with the decision on withdrawal made by the Trademark Review and Adjudication Board, may apply for reconsideration once within three days after the date of the receipt of the decision. During the reconsideration, the trademark review and adjudication staff member whose withdrawal has been applied for shall not suspend his participation in the hearing of the case. The Trademark Review and Adjudication Board shall make its reconsideration decision within three days, and notify the reconsideration applicant in writing.

Article 35.   In hearing a case of reexamination applied for out of dissatisfaction with a decision by the Trademark Office on the rejection of trademark registration, the Trademark Review and Adjudication Board shall review and adjudicate the rejection decision made by the Trademark Office, the facts of, grounds on and requests for the reexamination application by the applicant and the factual situation in the course of review and adjudication.

Article 36.   In hearing a case of reexamination applied for out of dissatisfaction with a decision by the Trademark Office on the opposition adjudication, the Trademark Review and Adjudication Board shall review and adjudicate the case in connection with the facts of, grounds on and requests for, the reexamination application and reply made by the interested parties.

Article 37.   In hearing a case of reexamination applied for out of dissatisfaction with a decision by the Trademark Office on cancellation of a registered trademark according to the provision of Article 41, paragraph one, of the Trademark Law, the Trademark Review and Adjudication Board shall review and adjudicate the case in connection with the decision made by the Trademark Office and the facts of, grounds on and requests for, the reexamination application by the interested parties.

In hearing a case of reexamination applied for out of dissatisfaction with a decision on cancellation of a registered trademark made by the Trademark Office according to the provision of Articles 44 and 45 of the Trademark Law, the Trademark Review and Adjudication Board shall review and adjudicate the case in connection with the facts, grounds and application of law on the basis of which the Trademark Office has made the decision on cancellation of a registered trademark.

Article 38.   In hearing a case of adjudication requested according to the provision of Article 41 of the Trademark Law on the cancellation of a registered trademark, the Trademark Review and Adjudication Board shall review and adjudicate the case in connection with the facts of, grounds on and requests for, the reexamination application and reply by the interested parties.

Article 39.   In any one of the following circumstances, the review and adjudication shall terminate:

(1) the applicant dies, there is not an heir in title, or the heir in title abandons his right for review and adjudication;

(2) the applicant withdraws his application for review and adjudication;

(3) the interested parties eliminate a dispute via agreement; or

(4) any other circumstance requiring the termination of the review and adjudication.

Where the review and adjudication terminates, the Trademark Review and Adjudication Board shall close the case, notify the interested parties in writing, and explain the reason.

Article 40.   Where he requests for withdrawal of his application before the Trademark Review and Adjudication Board makes a decision or adjudication, the applicant may withdraw his application upon explanation in writing to the Trademark Review and Adjudication Board of the reasons therefor. However, receipt of the request from the applicant for withdrawal of his application for review and adjudication shall not affect the validity of the review and adjudication decision or adjudication.

Article 41.   The collegial panel shall put down in writing the case it hears, and the written record shall be signed by the members thereof. Where the members of a collegial panel are divided in their opinions, the divided opinions shall be indicated in the collegial record.

The Trademark Review and Adjudication Board shall make decision or adjudication on a case the review and adjudication of which has been closed.

Article 42.   The followings shall be indicated in the decision or adjudication by the Trademark Review and Adjudication Board:

(1) request for review and adjudication and facts at issue and grounds;

(2) facts ascertained, reasons and grounds for the application of law in the decision or adjudication;

(3) conclusion made in the decision or adjudication;

(4) the follow-up procedure and time limit available to interested parties; and

(5) date of the decision or adjudication.

The decision or adjudication shall be signed by the members of the collegial panel and sealed by the Trademark Review and Adjudication Board.

Article 43.   In respect of cases transferred from the people's court for reexamination where an interested party institutes proceedings in the people's court out of dissatisfaction with a decision or adjudication made by the Trademark Review and Adjudication Board, the Trademark Review and Adjudication Board shall set up another collegial panel to conduct the review and adjudication again.

Article 44.   Where an interested party does not institute proceedings in the people's court in respect of a decision or adjudication made by the Trademark Review and Adjudication Board within the statutory time limit, the decision or adjudication shall become legally effective.