(Adopted at the 1703rd meeting of the Judicial Committee of the Supreme People's Court on December 12, 2016, and effective as of March 1, 2017)

　　In order to correctly hear administrative cases of trademark authorization and confirmation, these Provisions are formulated in accordance with the the People's Republic of China Trademark Law, the the People's Republic of China Administrative Procedure Law and other legal provisions, combined with trial practice.

Article 1 The administrative cases of trademark authorization and confirmation as mentioned in these Provisions refer to cases in which the counterparty or interested party files a lawsuit in the people's court for administrative acts such as trademark rejection review, trademark non-registration review, trademark revocation review, trademark invalidation and invalidation review made by the Trademark Review and Adjudication Board of the Administration for Industry and Commerce under the State Council (hereinafter referred to as the Trademark Review and Adjudication Board).

Article 2 The scope of the people's court's review of the administrative act of trademark authorization and confirmation shall generally be determined according to the plaintiff's claim and reasons. If the plaintiff did not make a claim in the lawsuit, but the relevant determination of the Trademark Review and Adjudication Board is obviously improper, the people's court may examine the relevant reasons and make a judgment after the parties have stated their opinions.

Article 3Article 10, paragraph 1, item (I), of the trademark law, the same or similar to the country name of the the People's Republic of China, etc., means that the trademark mark as a whole is the same or similar to the country name, etc.

For signs that contain the People's Republic of China national names, etc., but are not the same or similar as a whole, if the registration of the sign as a trademark may cause damage to the dignity of the country, the people's court may determine that it belongs to Article 10, paragraph 1, of the Trademark Law. The situation stipulated in Item (VIII).

Article 4 The trademark mark or its constituent elements are deceptive, and it is easy for the public to misunderstand the quality and other characteristics of the goods or the origin. If the Trademark Review and Adjudication Board determines that it belongs to Article 10 of the Trademark Law as amended in 2001, the people's court shall support it.

Article 5 If a trademark mark or its constituent elements may have a negative or negative impact on the public interest and public order of our society, the people's court may determine that it belongs to Article 10, paragraph 1, item (VIII) of the Trademark Law. Other adverse effects specified.

The application for registration of the names of public figures in the political, economic, cultural, religious, ethnic and other fields as trademarks is the other adverse effects referred to in the preceding paragraph.

Article 6 A trademark sign consists of a place name of an administrative division at or above the county level or a foreign place name known to the public and other elements. If it has a meaning different from a place name as a whole, the people's court shall determine that it does not belong to the trademark law. The situation referred to in Article 10, paragraph 2.

Article 7 When the people's court examines whether the trademark in dispute has distinctive features, it shall determine whether the trademark as a whole has distinctive features based on the general understanding of the relevant public of the goods designated by the trademark. If a trademark mark contains descriptive elements, but does not affect its overall distinctive features; or if a descriptive mark is expressed in a unique way and the relevant public can identify the source of the goods, it shall be deemed to have distinctive features.

Article 8 When a trademark in dispute is a foreign language mark, the people's court shall, in accordance with the common understanding of the relevant public in China, examine and judge whether the foreign language mark has distinctive features. The inherent meaning of the foreign language in the logo may affect its distinctive features in the designated use of goods, but the relevant public awareness of the inherent meaning is low, and if the source of the goods can be identified by the logo, it can be determined to have distinctive features.

Article 9 only use the shape of the commodity itself or a part of its own shape as a three-dimensional mark to apply for a registered trademark. If the relevant public is generally not easy to identify it as a mark indicating the source of the commodity, the three-dimensional mark does not have the distinctive features as a trademark.

The shape is originally created by the applicant or the earliest use does not of course lead to its distinctive features as a trademark.

The mark referred to in paragraph 1 may be deemed to have distinctive features if the mark has been used for a long time or widely and the relevant public is able to identify the source of goods through the mark.

Article 10 If the trademark in dispute belongs to a legal trade name or a conventional trade name, the people's court shall determine that it belongs to the generic name referred to in item (I) of paragraph 1 of Article 11 of the Trademark Law. If it belongs to the generic name of a commodity according to the provisions of law or national standards or industry standards, it shall be recognized as a generic name. If the relevant public generally believes that a name can refer to a class of goods, it should be recognized as a common name established by convention. If it is listed as a commodity name by a professional reference book, dictionary, etc., it can be used as a reference for identifying a common name established by convention.

The conventional common name is generally judged by the common understanding of the relevant public throughout the country. For commodities that are fixed in the relevant market due to historical traditions, local customs, geographical environment and other reasons, the people's court may recognize the common name as the common name in the relevant market.

If the trademark applicant in dispute knows or should know that the trademark it applies for registration is a customary trade name in some areas, the people's court may regard the trademark it applies for registration as a common name.

The people's court shall review and determine whether the trademark in dispute belongs to a common name, and generally the factual status at the date of trademark application shall prevail. If the factual status changes at the time of approval of registration, the factual status at the time of approval of registration shall be used to determine whether it is a generic name.

Article 11 If a trademark mark only or mainly describes and explains the quality, main raw materials, functions, uses, weight, quantity, origin, etc. of the goods used, the people's court shall determine that it belongs to the trademark law Article 11, paragraph 1, item (II). Where a trademark mark or its constituent elements imply the characteristics of the goods, but do not affect its function of identifying the source of the goods, it does not fall under the circumstances specified in this subparagraph.

Article 12 if the parties claim that the trademark in dispute constitutes a copy, imitation or translation of its unregistered well-known trademark and should not be registered or invalid according to the second paragraph of article 13 of the trademark law, the people's court shall comprehensively consider the following factors and the interaction between the factors, and determine whether it is easy to cause confusion:

(I) the degree of approximation of the trademark mark;

the degree of similarity of (II) goods;

(III) the distinctiveness and popularity of the trademark requested for protection;

(IV) the attention of the relevant public;

(V) other relevant factors.

The subjective intention of the trademark applicant and the evidence of actual confusion can be used as reference factors to judge the possibility of confusion.

Article 13 If a party claims that the trademark in dispute constitutes a reproduction, imitation or translation of its registered well-known trademark and should not be registered or invalid according to the third paragraph of Article 13 of the Trademark Law, the people's court shall comprehensively consider the following factors to determine whether the use of the trademark in dispute is sufficient to make the relevant public think that it has a considerable connection with the well-known trademark, thus misleading the public, as a result, the interests of well-known trademark registrants may be harmed:

(I) the significance and well-known degree of the cited trademark;

(II) whether the trademark logo is sufficiently similar;

(III) the specified use of goods;

(IV) the degree of overlap and attention of the relevant public;

(V) the legal use of signs similar to the cited trademark by other market entities or other relevant factors.

Article 14 if the party claims that the trademark in dispute constitutes a copy, imitation or translation of its registered well-known trademark and should not be registered or invalid, and the Trademark Review and Adjudication Board decides in support of its claim in accordance with Article 30 of the Trademark Law, if the registration of the trademark in dispute is less than five years old, the people's court may hear the case in accordance with Article 30 of the Trademark Law after the parties have stated their opinions; if the trademark in dispute has been registered for five years, the third paragraph of Article 13 of the Trademark Law shall be applied for the trial.

Article 15 if a trademark agent, representative or agent or representative in the sense of a sales agency relationship such as distribution or agency applies for registration of a trademark identical or similar to the trademark of the principal or representative on the same or similar goods in his own name, the people's court shall apply the provisions of paragraph 1 of article 15 of the trademark law.

In the consultation stage for the establishment of agency or representative relationship, if the agent or representative specified in the preceding paragraph applies for the registration of the trademark of the agent or representative, the people's court shall apply the provisions of Article 15, paragraph 1, of the Trademark Law.

If there is a specific identity relationship such as kinship between the trademark applicant and the agent or representative, it may be presumed that the trademark registration act is malicious collusion with the agent or representative, and the people's court shall apply the provisions of the first paragraph of Article 15 of the Trademark Law.

Article 16 The following circumstances may be identified as other relationships specified in paragraph 2 of Article 15 of the Trademark Law:

(I) the relationship between the trademark applicant and the prior user;

there is a labor relationship between the (II) trademark applicant and the prior user;

the (III) trademark applicant is adjacent to the business address of the prior user;

(IV) the trademark applicant and the prior user have negotiated on reaching an agency or representative relationship, but have not formed an agency or representative relationship;

the (V) trademark applicant and the prior user have negotiated on the conclusion of a contract and business relationship, but have not reached a contract or business relationship.

Article 17 According to Article 16 of the Trademark Law, the geographical indication interested party claims that the trademark of another person should not be registered or should be invalid. If the goods designated for use in the disputed trademark are not the same as the geographical indication products, if the interested party of the geographical indication can prove that the use of the disputed trademark on the product is still likely to cause the relevant public to mistakenly believe that the product comes from the region and therefore has a specific quality, reputation or other characteristics, the people's court shall support it.

If the geographical indication has been registered as a collective trademark or certification trademark, the right holder or interested party of the collective trademark or certification trademark may choose to claim rights in accordance with this article or in accordance with Article 13 and Article 30 of the Trademark Law.

Article 18 The prior rights stipulated in Article 32 of the Trademark Law include the civil rights or other legitimate rights and interests that should be protected before the application date of the disputed trademark. If the prior right no longer exists at the time of approval and registration of the trademark in dispute, it shall not affect the registration of the trademark in dispute.

Article 19 If a party claims that the trademark in dispute damages its prior copyright, the people's court shall, in accordance with the relevant provisions of the copyright Law, examine whether the claimed object constitutes a work, whether the party is the copyright owner or other interested parties who have the right to claim copyright, and whether the trademark in dispute constitutes an infringement of copyright.

If a trademark mark constitutes a work protected by the Copyright Law, the design manuscript, the original, the contract for obtaining the right, and the copyright registration certificate before the date of application for the trademark in dispute provided by the parties concerned can be used as proof of copyright ownership. Preliminary evidence.

Trademark announcements, trademark registration certificates, etc. can be used as preliminary evidence to determine that the trademark applicant is the interested party who has the right to claim the copyright of the trademark mark.

Article 20 the parties claim that the trademark in dispute damages their right of name. if the relevant public thinks that the trademark refers to the natural person and is easy to think that the goods marked with the trademark are licensed by the natural person or have specific connection with the natural person, the people's court shall determine that the trademark damages the right of name of the natural person.

The party claims the right of name by its pen name, stage name, translation name and other specific names. The specific name has a certain popularity and has established a stable corresponding relationship with the natural person. If the relevant public refers to the natural person by it, the people's court will support it.

Article 21 the font size claimed by the parties has a certain market popularity. if others apply for registration of trademarks that are the same or similar to the font size without permission, it is easy to cause confusion among the relevant public about the source of the goods. if the parties claim that this constitutes a prior right, the people's court will support it.

If a party makes a claim on the basis of the abbreviation of an enterprise name that has a certain market reputation and has established a stable correspondence with the enterprise, the provisions of the preceding paragraph shall apply.

Article 22 If the parties claim that the trademark in dispute damages the copyright of the role image, the people's court shall examine it in accordance with Article 19 of these regulations.

For works within the copyright protection period, if the name of the work, the name of the role in the work, etc. have a high reputation, the use of it as a trademark on the relevant goods may easily lead the relevant public to mistakenly believe that it has been approved by the right holder or has a specific connection with the right holder. If the parties claim that this constitutes a prior interest, the people's court shall support it.

　　Article 23 If the prior user claims that the trademark applicant preemptively registers the trademark that he used earlier and has certain influence by improper means, if the trademark used earlier has certain influence, and the trademark applicant knows or should know the trademark, it can be presumed that it constitutes preemptive registration by improper means. Except where the trademark applicant proves that it has not used the goodwill of the prior use of the trademark.

If the prior user proves that the prior trademark has a certain continuous use time, area, sales volume or advertising, the people's court may determine that it has a certain impact.

If the prior user claims that the trademark applicant applies for registration of the trademark that has been used earlier and has certain influence on the goods that are not similar to it, and violates the provisions of Article 32 of the Trademark Law, the people's court shall not support it.

Article 24 In case of disturbing the order of trademark registration, harming the public interest, improperly occupying public resources or seeking illegitimate interests by means other than deception, the people's court may determine that it belongs to other improper means as stipulated in the first paragraph of Article 44 of the Trademark Law.

　　Article 25 The people's court shall judge whether the applicant of the trademark in dispute has maliciously registered the well-known trademark of others, and shall comprehensively consider the popularity of the cited trademark, the reasons for the applicant to apply for the trademark in dispute and the specific circumstances of using the trademark in dispute to judge its subjective intention. If the cited trademark is well-known and the applicant for the disputed trademark has no justifiable reason, the people's court may presume that its registration constitutes a malicious registration as referred to in the first paragraph of Article 45 of the Trademark Law.

Article 26 The use by the trademark owner, the use by others with permission, and other uses that do not violate the will of the trademark owner can be deemed as the use referred to in the second paragraph of Article 49 of the Trademark Law.

If the actual use of a trademark mark is slightly different from the trademark mark approved for registration, but its distinctive characteristics are not changed, it can be regarded as the use of a registered trademark.

There is no actual use of the registered trademark, only the transfer or licensing act; or only the publication of trademark registration information, declaration of the exclusive right to use the registered trademark, is not recognized as a trademark use.

If the trademark owner has the real intention to use the trademark and has the necessary preparations for actual use, but has not actually used the registered trademark for other objective reasons, the people's court may determine that there is a valid reason.

Article 27 if the parties claim that the following circumstances of the Trademark Review and Adjudication Board are violations of legal procedures as stipulated in item (III) of Article 70 of the Administrative Procedure Law, the people's court shall support them:

(I) omitting the review reasons put forward by the parties, which has an actual impact on the rights of the parties;

(II) members of the collegial panel are not informed in the review process, and there are indeed reasons for avoidance after review;

the (III) fails to notify the eligible party to participate in the review, and the party clearly raises an objection;

(IV) other violations of legal procedures.

Article 28 in the process of the people's court hearing the administrative case of trademark authorization and confirmation, if the reason for the Trademark Review and Adjudication Board to reject, refuse to approve the registration or invalidation of the disputed trademark no longer exists, the people's court may revoke the relevant ruling of the Trademark Review and Adjudication Board based on the new facts and order it to make a new ruling based on the changed facts.

Article 29 the parties are based on the newly discovered evidence after the original administrative act, or the evidence that cannot be obtained due to objective reasons or cannot be provided within the prescribed time limit in the original administrative procedure, or the new legal basis The review application submitted by the review is not based on the same facts and reasons.

in the trademark rejection review procedure, after the trademark review and adjudication board approves the application for trademark preliminary examination and approval announcement on the ground that the applied trademark and the cited trademark do not constitute the same or similar trademark used on the same or similar goods, the following circumstances shall not be deemed as "the same facts and reasons" to file the review and adjudication application again:

(I) the owner or interested party of the cited trademark raises an objection based on the cited trademark, the Trademark Office of the administrative department for industry and commerce under the State Council supports it, and the applicant for the opposed trademark applies for review;

(II) the owner or interested party of a cited trademark declares its invalidation on the basis of the application for registration of the cited trademark after the application for registration of the trademark is approved.

　　Article 30 If the people's court's effective judgment has clearly determined the relevant facts and the application of the law, and the counterparty or interested party files a lawsuit against the Trademark Review and Adjudication Board's new ruling based on the effective judgment, the people's court shall rule that it will not accept it; if it has already accepted it, it shall rule to reject the lawsuit.

　　Article 31 The provisions shall come into force as of March 1, 2017. The administrative cases of trademark authorization and confirmation tried by the people's courts in accordance with the Trademark Law as amended in 2001 may apply these Provisions by reference.