China IPR

Legal “Choreography” and the Revised Draft TRAB Rules

Just as the due date for comments on the revised  Trademark Law Implementing Regulations expired on February 10, 2014, the State Council Legislative Affairs Office (SCLAO) simultaneously released proposed new Rules of the Trademark Review and Adjudication Board (TRAB) for public comment.  One translation of prior rules is found at the WIPO website.  The deadline for comments is March 11, 2014. 

Comments may be submitted to the SAIC website or the Chinese government law website for collecting comments on public comments on administrative rules.  This is a different website from the one the SCLAO maintains for public comments on State Council regulations, such as the Trademark Law Implementing Regulations.

There is some interesting legal “choreography” to all of this. 

First, the SCLAO is clearly following the order of the Law on Legislation (LoL) by soliciting comments after Trademark Law passage for the Implementing Regulations first, then the TRAB Rules.   The comments are also delivered to separate on-line accounts.    Although the close timing of the new drafts suggests that timing will be tight to comment on TRAB Rule changes that may be adopted based on new changes to the Trademark Law Implementing Regulations, it is nonetheless clear that the SCLAO and SAIC are coordinating closely to try to make the implementation of the new law as seamless as possible, thereby minimizing conflicts between inferior rules and superior regulations or the law itself.

In addition, the proposed TRAB rules, which will be implementing simultaneously with the new Trademark Law and Implementing Regulations, also seek to clarify in Article 54 when the revised rules should retroactively apply, in accordance with China’s LoL, particularly Article 84 (“Laws, administrative regulations, local regulations, autonomous regulations, separate regulations and rules shall not be retroactive, but the regulations formulated specially for the purpose of better protecting the rights and interests of citizens, legal persons and other organizations are excepted.”).  The principle of application of Article 84 to examination practices was also recently clarified by SIPO in its revised practices regarding “enablement.”   

Finally, there are some interesting developments regarding evidence that could reflect more general trends.  The TRAB is now considering electronic service including accepting electronic evidence and other materials (Art. 52).  There are also relatively extensive rules on the types of evidence that the TRAB will consider (Chapter IV: 证据规则). Considering the tight time frames for TRAB procedures, this will help in expediting case handling.  However there appears to be little consideration to the procedural formalities for evidence from overseas (legalization/consularization), which can disadvantage them when procedures have been so expedited (Art. 39).   The TRAB Rules also require Chinese language translation of documents and provide dispute resolution procedures if the parties disagree on translations (Art. 40).  Consideration is also given to whether the evidence submitted is a copy and the chain of custody for the evidence (for example, Arts. 41- 44). The TRAB will also constitute new panels on remand from the courts and new evidence can be accepted in the new panel.  This will provide an additional cross-check for more independent adjudication (Art. 35). Image

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