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Rules for Trademark Review and Adjudication (2002)

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

Public Review and Adjudication

Article 45.   The Trademark Review and Adjudication Board may, at the request of an interested party or according to practical needs, decide to conduct a public review and adjudication of the application therefor.

Article 46.   If an interested party requests for public review and adjudication, he shall give specific reasons that the public review and adjudication is necessary.

Article 47.   In respect of the following cases involving both parties, the Trademark Review and Adjudication Board may decide to hold the public review and adjudication at the request of an interested party:

(1) One interested party requests for the face-to-face cross-examination or debate on important evidence with the other party; or

(2) It is necessary to ask for the presence of the witness who has furnished important oral evidence for testimony or cross-examination.

Article 48.   An applicant requesting for the public review and adjudication shall file the request in writing with the Trademark Review and Adjudication Board within fifteen days from the date of receipt of the copy of the Reply made by the respondent; and a respondent requesting for the public review and adjudication shall file the request together with the submission to the Trademark Review and Adjudication Board of the Reply or additional relevant proofs.

Article 49.   In any one of the following circumstances, the Trademark Review and Adjudication Board may decide at its own discretion to hold the public review and adjudication:

(1) It is necessary for both parties to hold the face-to-face cross-examination or debate to determine important evidence;

(2) It is necessary to cross-examine and question the witness furnishing important oral evidence to determine important evidence; or

(3) Any other circumstances in which the public review and adjudication is necessary.

Article 50.   If it holds necessary, the Trademark Review and Adjudication Board may decide to hold the public review and adjudication again of a case in respect of which the public review and adjudication has been held.

Article 51.   The public review and adjudication shall be conducted in respect to the proofs that the interested parties have submitted to the Trademark Review and Adjudication Board and that have been exchanged between both parties.

Article 52.   Where a decision is made to hold the public review and adjudication, the collegial panel shall notify, in writing, the interested parties and other review and adjudication staff members fifteen days before the public review and adjudication is held, of the date and place of the public review and adjudication, and the persons making the collegial panel.

Article 53.   The interested parties shall submit the Receipt of the Public Review and Adjudication Notification to the Trademark Review and Adjudication Board three days before the public review and adjudication is held. Where the review and adjudication applicant fails to do so to reply whether he is going to attend the public review and adjudication at the expiration of the time limit, or does not attend the public review and adjudication, his application for review and adjudication shall be deemed to have been withdrawn, and the review and adjudication proceeding terminates. The Trademark Review and Adjudication Board shall close the case and notify the applicant in writing. Where the review and adjudication applicant replies before the time limit expires, saying not to attend the public review and adjudication, or the respondent does not return the Receipt at the expiration of the time limit, nor attends the public review and adjudication, the Trademark Review and Adjudication Board may hold the review and adjudication by default.

Article 54.   The receipt of the Public Review and Adjudication Notification shall be signed or sealed by the interested parties. If they express their intention to attend the public review and adjudication, the interested parties shall indicate, in the Receipt of the Public Review and Adjudication Notification, the name and identification of the attendants the interested parties send to the public review and adjudication. If an interested party appoints a trademark agency to attend the public review and adjudication, he shall indicate, in the Receipt of the Public Review and Adjudication Notification, the name of the trademark agent who is going to attend the public review and adjudication.

Where a witness is requested to attend the public review and adjudication to present his testimony regarding the oral evidence he has presented during the hearing, the name of the witness, the relevant information ascertaining his identification and the facts to be testified shall be indicated in the Receipt of the Public Review and Adjudication Notification. A witness who is not indicated therein shall not attend the public review and adjudication to present testimony.

Article 55.   Those sent by each party to the public review and adjudication shall not be more than four persons, including the agent from an appointed trademark agency. If one party sends several persons to attend the public review and adjudication, he shall appoint one of them as first speaker to make the main presentation.

Article 56.   Before the public review and adjudication begins, the Trademark Review and Adjudication Board may hold a pre-hearing preparatory meeting attended by both parties to solicit their opinions regarding the relevant facts and proofs and to determine the main issues to be investigated in the public review and adjudication.

The collegial panel shall prepare a record of the opinions raised by the interested parties at the preparatory meeting held before the public review and adjudication, and the record shall be verified and signed by both parties.

Article 57.   When the public review and adjudication begins, the collegial panel shall check the identification certificates of the participants of the public review and adjudication and confirm whether or not they are qualified to attend the public review and adjudication and find out whether or not the interested parties and other participants are present at the public review and adjudication.

Article 58.   Before the investigation at the public review and adjudication, the collegial panel shall brief on the case, clarify the main issue in dispute between the two parties, and then proceed to commence the investigation of the public review and adjudication.

Article 59.   The investigation of the public review and adjudication proceeds in the order as follows:

(1) the applicant presents his review and adjudication requests and briefs on the relevant facts and evidence;

(2) the respondent makes a defense;

(3) the collegial panel makes verifications as to the review and adjudication requests, grounds, and the evidence furnished by the parties to the case;

(4) the applicant adduces evidence regarding the grounds of the review and adjudication request, the facts and proofs based on which the request is filed; and

(5) the respondent cross-examines the applicant's evidence and raises counter evidence, and the applicant cross-examines the respondent's counter evidence.

Article 60.   In cases of public review and adjudication, evidence shall be presented at the public review and adjudication and cross-examined by the parties. Evidence which has not been cross-examined should not be used as the basis to ascertain the facts in a case. Evidence which the parties accepted at the pre-hearing preparatory meeting and which is recorded on files may do so after the collegial panel makes it clear at the public review and adjudication.

When cross-examining documentary evidence, material evidence or audiovisual reference material, an interested party has the right to request for producing the original of the evidence, except that the original has lost or that there exists evidence showing that the copy or reproduction is consistent with the original.

Article 61.   During the cross-examination, interested parties shall challenge, clarify and argue about the authenticity, relevance, legitimacy and the evidential force of the evidence.

Article 62.   The cross-examination shall proceed in the order as follows:

(1) The applicant produces evidence, and the respondent cross-examines it with the applicant; and

(2) The respondent produces evidence, and the applicant cross-examines it with the respondent.

Article 63.   The members of the collegial panel may question an interested party or witness on relevant facts and evidence and require an interested party or witness to make explanation.

An interested party may question a witness with the consent of the collegial panel.

The interested party shall not question a witness in intimidating or insulting language or manner.

Article 64.   Any witness shall not audit on the public review and adjudication. When a witness is questioned, other witnesses shall not be present.

The Trademark Review and Adjudication Board may ask a witness to cross-examine evidence when necessary.

Article 65.   After the public review and adjudication investigation is over, oral debate may be held. The interested parties make their observations concerning the facts demonstrated by the evidence, the issues in dispute and the matter of application of law.

Where they have no dispute over the evidence and facts of the case, both parties may directly enter into the oral debate on the basis of verification of the evidence and facts.

Article 66.   The oral debate proceeds in the order as follows:

(1) the applicant makes a presentation;

(2) the respondent makes a defence; then

(3) they debate with each other.

During the oral debate, the members of the collegial panel may ask questions.

Article 67.   Where an interested party presents evidence which he has furnished before, but which has not been investigated in the public review and adjudication in the course of the oral debate, the collegial panel may adjourn the debate, and restart the public review and adjudication investigation. The oral debate shall resume after the investigation is over.

Article 68.   After both parties make their observations at the debate, the collegial panel shall first ask the applicant and then the respondent to make their final comments.

Article 69.   After the final comments are made, the public review and adjudication is over. The Trademark Review and Adjudication Board shall make adjudication according to law within a certain period afterward, and send the Adjudication to the interested parties.

Article 70.   The collegial panel shall put the public review and adjudication down in writing, recording the important matters involved in the public review and adjudication. When the public review and adjudication terminates, the collegial panel shall give the record to the interested parties for verification. The interested parties have the right to request for correction of defects or errors in the record. Record that proves to be correct upon verification shall be signed by the interested parties and put on file. Where an interested party refuses to sign the record, the collegial panel shall indicate it in the public review and adjudication record.

The important matters mentioned in the preceding paragraph contain, among other things, following information:

(1) the review and adjudication request, grounds and evidence of the parties;

(2) important facts accepted by both parties; and

(3) any other important matters that need to be put down in writing.

Article 71.   During the public review and adjudication, auditing, photograph-taking, sound-recording and video-recording shall not be allowed without the permission of the Trademark Review and Adjudication Board.