IP News in China

altMr. ZHANG Jianhua, Director of the Division of Education, Science, Culture, and Health of SCLAO (Chinese State Council Legislative Affairs Office, Commented on the Draft Amendment of Chinese Trademark Law

Sounds can become trademarks under the latest draft amendment of China’s Trademark Law, but smells are still not to be allowed.

The draft amendment of the Chinese Trademark Law has already been submitted to the Standing Committee of the National People’s Congress for deliberation. Sounds can be registered as trademarks, but smells are still not. Director of the Division of Education, Science, Culture, and Health of SCLAO (Chinese State Council Legislative Affairs Office), Mr. ZHANG Jianhua explained:” Smells are not so close to the trademark issues and social life.”

According to Mr. ZHANG Jianhua, the draft amendment is “a response to the current problems”, aiming to deal with eight misconducts.

Firstly, trademark resources are not sufficiently used, for instance, sounds are not included as one of the trademark elements.

Secondly, many trademark applications are not for purpose of use, but for seizing trademark resources. For example, names of many Olympic champions were registered as trademarks after the Olympic Games.

The third one, preemptive applications are filed in an unfair manner for a trademark that is already in use by another party.

The fourth one, opposition to the trademark application for the purpose of unfair competition leads to a long-lasting trademark registration process.

The fifth one, in order to obtain the recognition of well-know trademarks, trademark holder intends to make the false case to get “endorsement” of the administrative organs, because the well-know trademarks can be identified in the case.
The sixth one,there is unfair competition in the field of trademark agency where the trademark agencies harm each others’ benefits and rights.

The eighth, the trademark owner wins the case but cannot make up for the losses caused by the infringement. This phenomenon abounds, reflecting the weakness of the trademark protection.
Mr. ZHANG Jianhua said, the importance of trademarks is increasingly acknowledged by the society. However, the trademark law in use still needs to be improved.

Entire opposition process takes 7 years to complete

According to Mr. ZHANG Jianhua, the entire trademark registration proceeding needs 7 years to complete, if an opposition is filed. “What does 7 years mean? In the last 30 years, the economy doubled every 7 years. Therefore, 7 years is no trivial matter.” Mr. ZHANG Jianhua said.

How to come up with “7 years” ?

Under the current Chinese Trademark Law, any person may, within three months from the date of publication, file an opposition against a trademark application that has been preliminarily approved for registration.

If an opposition is filed, the Trademark Office shall examine the facts and grounds submitted by the opponent and the opposed party and shall make a decision after investigation and verification. If a party is dissatisfied with the decision, it may, within 15 days from the receipt of decision, apply in writing to the Trademark Review and Adjudication Board (TRAB) for a review. The TRAB shall rule on the case and notify both the parties in writing accordingly.

If a party is dissatisfied with the ruling of the TRAB, it may, within thirty days from the receipt of decision, initiate an administrative litigation with the court. The court shall notify the other party in the trademark review proceeding, which shall participate in the proceeding as the third party.

It may take 7 years if all proceedings including registration examination, opposition, review of opposition, litigation of two instances are gone through.

In addition, there are two other reasons making the problem of long-lasting of trademark application more serious. One is the rapidly increased applications. Only in 2012, the amount of applications for trademark registrations was 1,648,000. Another reason is the competitors’ abuse the right to raise the opposition with the malicious intent of stopping the trademark applicant from acquiring the trademark.

The amendment of the Chinese Trademark Law is expected to solve the above mentioned problems. Mr. ZHANG Jianhua said it is not easy to solve the above problems, which involves the balance between many aspects. The current draft amendment mainly focuses on the balance in five aspects described as follows:

The first one is the balance of the reality and the ideal state. For example, “sounds” can be registered as trademark, but “smells” can not be allowed.

The second one, balance of two rules, namely “first to register” and “first to use”. According to the Chinese Trademark Law, “first to register” is defined as the principle. “At the beginning, this principle was considered as irreplaceable, but today more and more factors of reasonable use and requests of the user have been taken into account, which is reflected in the current amendment.” Mr. ZHANG Jianhua said.

The third one is the balance of protecting individual legitimate interests and keeping the fair competition environment.

The fourth one is the balance of the demand of simplified rules and decentralized authority and the need of strong trademark enforcement, both of which are indispensable.

The fifth is the balance of administrative protection, judicial protection and self-protection. Intellectual Property rights are private rights. The IPR holder cares most about the trademark protection. The administrative proceeding and the judicial one both provide protection to the trademark owner and each has its own advantages. The administrative organs have the rights to carry out investigation. If the administrative organs brings the clear investigation results, and the final judgment is made and executed by the court, trademark right may be protected better. In this consideration, the draft amendment of the Chinese Trademark Law includes some new contents regarding issues such as the investigation rights of administrative organs, punitive damages and rules for court’s order on providing documents so as to combine the force of administrative protection, judicial protection and self protection of right holders.

National Development and Reform Commission: China to determine the key development field of infrastructure construction for major science and technology projects for the next two decades.

An officer of China’s National Development and Reform Commission said that The Medium- and Long-Term (2012-2030) Plan on Infrastructure Construction for China’s Major Science and Technology Projects specifies the main development direction of infrastructure construction for 7 major science and technology field, including energy, life, earth systems and environments, materials, particle and nuclear physics, space and astronomy and engineering technology. This plan plays a crucial role in implementing the national innovation-driven development strategy, boosting China’s innovation capability and achieving the goal of turning from “a country with big figures in science and technology” into “a country with real power and strength in science and technology”.

The Plan confirms that the field of energy science shall take solving the problems of sustainable use of energy as its goal and focus on the research and development of nuclear and high-efficient fossil energy to gradually improve the infrastructure layout of major science and technology projects and to provide supports to new breakthroughs in energy science and technical change in the field of energy-saving and emission reduction.

The field of life science focuses on exploration of life issues and is expected to solve the major scientific and technological problems, such as human health and agricultural sustainable development. In addition, it aims to break through the major scientific and technological bottlenecks in human health, all-pervading and cheap medication and biological breeding.
Earth systems and environmental science aims to achieve the goal of the harmonious development of human and nature, and focuses on construction of deep sea observation, numerical simulation and basic research facilities , in order to gradually form the observation, detection and simulated complementary earth system and environmental science research system.

The Plan points out that, engineering and technical sciences aim to solve the major scientific and technological problems in the basis and cutting-edge of future development of information technology, dynamic characters of rock and soil mass, geological disasters process and etc. Research in this field is also expected to explore and gradually improve the construction of related facilities, in order to provide supports to the implementation of the national major projects and to guide the future development.

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