China Plans Introduction of Oral Hearings for Trademark Review Cases


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On January 22, 2017, the State Administration of Industry and Commerce (“SAIC”) released a draft of Measures for Oral Hearing of Trademark Review Cases (“Measures”) for public opinion solicitation.

Application

The proposed Measures is composed of 21 articles and provides that the oral hearing may be initiated upon the concerned parties’ request or determined by the TRAB on the basis of the case’s circumstance. In the former case, if a concerned party has questions in relation to evidence of a case and considers that there should be a cross-examination, such party may apply in
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written to the TRAB for a oral hearing with reasons, and such application may be submitted by the time of applying for the review or no later than 30 days after the receipt of a response from the respondent. In case of oral hearing requested by a respondent, then such application shall be submitted to the TRAB by the time of submitting response or relevant supplementary materials by the respondent.

Procedure

The TRAB will have the right to decide whether to allow the oral hearing and notify the concern parties of its decision in written. In case of allowing the oral hearing, the concerned parties shall submit a written reply within 7 days after the receipt of the said decision above. If no written reply is submitted, it will be deemed as default of the oral hearing and the TRAB may hear the case without the participation of such party. In case no party participates in the oral hearing, the hearing will not proceed.

The participants in the oral hearing for each party shall be no more than two including the agents, unless it is agreed by the TRAB otherwise. The oral hearing will include following steps:
⋅ Organization of a collegiate bench, which is composed of three or more person in odd number;
⋅ Confirmation the concerned parties’ identification;
⋅ Investigation, including clarifying the major issues of the dispute, stating review requests and responding by the concerned parties;
⋅ Presentation of all the evidence and cross-examination thereof by the concerned parties;
⋅ Witness testifying and inquiry (if any);
⋅ Final statement by the concerned parties.
The whole process will be recorded in written, and such record will be confirmed and signed by the concerned parties after the hearing.

In conclusion, the drafted Measures provides a series of steps on how such oral hearing for trademark review cases will be organized and processed, and it can be seen that such procedure is quite similar to those in a court trial. Nevertheless, since the oral hearing is not mandatory for every case, it is still unclear that how often such hearing will be adopted and its effect on individual case. The solicitation for public opinions will be ended on February 4, 2017.

ABOUT THE AUTHOR: Fei Dang
Fei Dang is an Associate in the MMLC Group.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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