Joe Simone at Simone Intellectual Property Services, has shared a translation of the recent Beijing Higher People’s Court Guidance on Hearing Trademark Administrative Cases (Jan. 2014). In view of the high number of foreign-related trademark administrative appeals which are only heard in Beijing, these rules are very important to understanding relevant procedures and standards. As I have noted in other translation postings these are unofficial translations for reference only.
Joe also provided us with a copy of the SAIC Rules on Trading on the Internet (enacted January 26 2014, with an effective date of March 15, 2014). Unfortunately I do not yet have an English language translation of the SAIC Rules. As a key regulatory authority for both trademarks and e-commerce, these rules are important for understanding SAIC’s role in this important area.
In case you are keeping track, this brings to five the total number of new trademark-related ‘normative documents’ in final or proposed form – the Trademark Law, the draft of the Implementing Regulations, the draft of the TRAB rules, and now these two.
Categories: China IPR
A big thank you to Joe Simone for sharing his translation. Could you post a link to the Chinese original as well?
This post brings up the position of local court guidance/rules. The Supreme People’s Court (and the Supreme People’s Procuratorate) issued a notice in 2012 (conveying the same message as an earlier notice) (最高人民法院、最高人民检察院关于地方人民法院、人民检察院不得制定司法解释性质文件的通知) that local courts must not issue guiding opinions, regulations, and other documents in the nature of a judicial opinion, (“指导意见”、“规定”等司法解释性质文件 ). The lower courts (and procuratorates) were directed to clear these out. This guidance by the Beijing Higher People’s Court shows the importance of local guidance/rules in the functioning of the judiciary and the importance the lower courts place in using local rules/guidance to clear their caseload.
There are many local IP rules still “out there.” I think the case for Beijing high court rules on TM (or patent) administrative adjudication is particularly strong: the BJ No. 1 Intermediate and BJ High Court function like our CAFC – hearing all appeals on validity from the patent and TM offices pursuant to their “administrative” litigation authority. No other court in China can hear these cases. Moreover these cases constitute nearly half of the foreign IP-docket, so this court is immensely important to foreigners. The court has also functioned to try to combine its IP expertise with its administrative docket, well in advance of current efforts to create a specialized IP court. Local variances based on “local characteristics” can be troubling when the same right/practice/issues are involved, but in the case of BJ there is a unique situation – which is also important for the foreign business community. I appreciate as usual you looking into these things!