You are here

Rules for Trademark Review and Adjudication (2002)

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

Rules on Evidence

Article 72.   If an applicant files an application with the Trademark Review and Adjudication Board or a respondent raises a rebuttal, he shall furnish relevant proofs.

The proofs include, among other things, documentary evidence, material evidence, audiovisual reference material, oral evidence of witnesses, statements made by the parties and appraisal conclusion.

Article 73.   An interested party shall be under the burden of proof to testify the facts on the basis of which he requests for the review and adjudication or on the basis of which one rebut the other party's review and adjudication request.

Where there is no evidence or there is not sufficient evidence to attest to the factual claims by an interested party, the interested party under the burden of proof shall bear the adverse consequences.

 

Article 74.   Where one interested party expressly acknowledges the facts in a case as stated by the other party, the latter is not under the burden of proof.

The other party's neither acknowledging nor denying the facts claimed by an interested party shall be deemed acknowledgement thereof.

Where an interested party appoints an agent to attend the review and adjudication, the agent's acknowledgement shall be deemed the interested party's acknowledgement, except that the acknowledgement by an agent not specially authorized directly results in the acknowledgement of the review and adjudication request of the other party. Lack of denial, on the part of the interested party present, of the acknowledgement by the agent shall be deemed acknowledgement thereof.

Where an interested party withdraws his acknowledgement before the debate at the public review and adjudication is over and the other party gives his consent thereto, or where there is sufficient evidence to show that his acknowledgement is made under coercion or in the presence of major misunderstanding, the other party shall not be exempt from the burden of proof.

Article 75.   An interested party does not need to adduce evidence to prove the following facts:

(1) facts known to all;

(2) facts deducted from the law;

(3) facts proven according to the law;

(4) facts deducted on the basis of experience and laws of the daily life; and

(5) other facts in respect of which adduction of evidence is not required under the law. Except that an interested party has evidence to the contrary which is sufficient enough to upset the facts.

Article 76.   An interested party who furnishes the Trademark Review and Adjudication Board with documentary evidence shall furnish the original, including the original text, the authentic text and the copy. The interested party who has difficulty furnishing the original may furnish the Xerox copies, photographs or extracts certified to be consistent with the original. Where the Xerox copies, photographs or extracts, which are certified to be consistent with the original, of the original documentary evidence kept by a relevant department, the sources shall be indicated and sealed thereby upon verification.

Article 77.   An interested party who furnishes the Trademark Review and Adjudication Board with material evidence shall furnish the original material. The interested party who has difficulty furnishing the original may furnish the reproduction certified to be consistent with the original material or other evidence such as photographs or video-recordings of said material evidence. Where the original is of relatively many varieties, a part thereof shall be furnished.

 

Article 78.   Where an interested party furnishes the Trademark Review and Adjudication Board with computer data or audiovisual reference material, such as sound-recordings or video-recordings, the following requirements shall be complied with:

(1) the original carrier of the relevant reference material be furnished; where it is indeed difficult to furnish the original carrier, the reproduction thereof may be furnished;

(2) the way, time, reproducer and facts to be proved of the reproduction be indicated; and

(3) the sound-recording reference material be attached with the transcripts thereof.

Article 79.   An interested party furnishes the Trademark Review and Adjudication Board with a witness's oral evidence, the following requirements shall be complied with:

(1) the name, age, gender, residence, employer or profession and other information of the witness be indicated;

(2) the witness signs the oral evidence; where he cannot sign it, he put his seal on it or give proof in some other way;

(3) the date on which it is produced be indicated; and

(4) documents showing the identification of the witness, such as a copy of identification card shall be attached.

Article 80.   Where an interested party furnishes the Trademark Review and Adjudication Board with an appraisal conclusion, he shall indicate the entruster, subject matters of appraisal entrusted, relevant material submitted to the appraisal department, basis of appraisal and statements of the qualification of the appraisal department and appraisers and the appraisal conclusion shall be signed by the appraisers and sealed by the appraisal department. For an appraisal conclusion obtained through analysis, the process of analysis shall be explained.

Article 81.   Where evidence an interested party furnishes to the Trademark Review and Adjudication Board is formed outside the territory of the People's Republic of China, the evidence shall be notarized by a notary office of the country and legalized by the embassy or consulate of the People's Republic of China in that country, or undergo the certification procedure provided for in the relevant treaty concluded between the People's Republic of China and the country.

Where evidence an interested party furnishes to the Trademark Review and Adjudication Board is formed in Hong Kong, Macao and Taiwan, he shall go through the relevant certification procedure.

Article 82.   Where an interested party furnishes to the Trademark Review and Adjudication Board instruments or explanatory material in a foreign language, he shall attach the Chinese translation thereof. Where an interested party who has furnished evidence in a foreign language fails to submit the Chinese translation thereof, the evidence in the foreign language shall be deemed not to have been submitted.

Where the other party has objection to the specific content of the translation, he shall submit the Chinese translation of the part to which the objection is raised. If necessary, an entity accepted by both parties may be entrusted with the translation of the text, in whole or in part, used or objected to.

Where both parties fail to reach an agreement on the translation entrustment, the Trademark Review and Adjudication Board may entrust a professional translation entity with the translation of the text, in whole or in part, used or objected to. Each party shall bear 50 percent of the fees necessary for the entrusted translation. A party's refusal to pay the translation fee shall be deemed its acceptance of the translation submitted by the other party.

Article 83.   In the following circumstances, the Trademark Review and Adjudication Board may investigate and collect evidence:

(1) facts involved that are likely to prejudice the interests of the country and public; and

(2) matters of procedure that are irrelevant to substantive disputes, such as termination of the review and adjudication or withdrawal.

Article 84.   A single piece of evidence may be verified and confirmed as to the presence and strength of evidential force in relation to the following aspects:

(1) whether the evidence is the original text, original material, copy or reproduction; whether it is consistent with the original;

(2) whether the evidence is relevant to the facts of a case;

(3) whether the evidence conforms to the law in terms of form or source;

(4) whether the evidence is true in content; and

(5) whether the witness or the person furnishing the evidence has interest in an interested party.

Article 85.   The review and adjudication staff members shall comprehensively examine and evaluate all the evidence as to the degree of the relevance of all the evidence to the facts of a case and the relationship of the evidence.

Article 86.   Evidence obtained in ways prejudicing the lawful rights and interests of another person or contrary to provision on prohibition of the law shall not serve as the basis for ascertaining the facts in a case.

Article 87.   The following evidence shall not alone serve as the basis for ascertaining facts in a case:

(1) Oral evidence from a minor which does not match his age or intelligence;

(2) Oral evidence from a witness who is a relative, affiliate or otherwise closely related to an interested party in his favour or oral evidence not in his favour from a witness who is adversely-related thereto;

(3) Oral evidence from a witness who should attend the public review and adjudication but fails to without justification;

(4) Audiovisual reference material difficult to be detected as to whether it is modified or not;

(5) Copy or reproduction impossible to be verified with the original;

(6) Proofs which one party or another person has modified and which the other party does not accept; and

(7) Any other proofs that cannot serve as the basis for ascertaining the facts in a case.

 

Article 88.   A witness presenting evidence shall objectively state the truth of his personal experience, and shall not do so in conjectural, inferential or commentary language.

A person who is not able to correctly express his will shall not act as a witness.

Article 89.   The following evidence which one party furnishes and to which the other party raises his objection without evidence to the contrary sufficient enough to deny the truth thereof shall be established by the Trademark Review and Adjudication Board as having its evidential force:

(1) The original documentary evidence or the Xerox copies, photographs, copies or extracts thereof which are verified to be consistent with the original documentary evidence;

(2) The original material evidence or the copies, photographs or video-recording materials thereof which are verified to be consistent with the original material evidence;

(3) The audiovisual reference material which is supported by other evidence and obtained by legal means and free of any doubt or the reproduction thereof verified without any inconsistency found.

 

Article 90.   Where the other party does not have evidence and reasons sufficient enough to rebut an appraisal conclusion which an interested party has entrusted an appraisal department with making, the evidential force of the appraisal conclusion may be established.

Article 91.   In respect of the evidence one party has furnished, the other party accepts or the evidence to the contrary furnished thereby is not sufficient enough to rebut it, the Trademark Review and Adjudication Board may determine its evidential force.

Where in respect of the evidence one party has furnished, the other party has objection thereto and presents evidence to rebut it, and the other party accepts the rebutting evidence, the evidential force of the rebutting evidence may be determined.

Article 92.   Where both parties furnish evidence to the contrary in respect of the same fact, neither has sufficient ground for the denial of the evidence of the other party, the Trademark Review and Adjudication Board shall evaluate, considering the circumstances of a case, whether or not the evidence furnished by one party is obviously more valid in evidential force than that by the other party, and confirm the evidence carrying more valid evidential force.

Where it is impossible to evaluate the evidential force of the evidence, and, as a result, it is difficult to ascertain the facts in dispute, the Trademark Review and Adjudication Board shall make determination according to the doctrine for distribution of burden of proof.

Article 93.   The Trademark Review and Adjudication Board shall confirm the facts and accepted evidence acknowledged adverse to an interested party in his Application, Reply, Written Statement, and the statements made by the agent he has entrusted in the course of review and adjudication, except that the party goes back on his words and has evidence to the contrary which is sufficient enough to upset the evidence.

Article 94.   Where an interested party has made his own statement of, but cannot furnish other relevant evidence to back up, his claim, the claim shall not be supported, except that the other party otherwise accepts the claim.

Article 95.   The Trademark Review and Adjudication Board may determine the evidential force of several pieces of evidence as to the same fact according to the following principles:

(1) Documents and instruments prepared by a State agency and any other competent department according to the functions and authority thereof prevail over other documentary evidence;

(2) Appraisal conclusions, materials kept on file and notarized or registered documentary evidence prevail over other documentary evidence, audiovisual reference evidence and oral evidence from a witness;

(3) Original documents or materials prevail over copies or reproductions;

(4) Appraisal conclusions made by statutory appraisal departments prevail over those by other appraisal departments;

(5) Original evidence prevails over to derivative evidence;

(6) Other oral evidence of witnesses prevails to oral evidence from a witness who is a relative or otherwise closely related to an interested party in his favour;

(7) Oral evidence from a participant of the public review and adjudication prevails over that from a non-participant; and

(8) Several pieces of evidence variant in category and consistent in content prevail over a single isolated piece of evidence.