With the high-speed development and improvement of China’s economic and judiciary practice, both Chinese substantive law and procedural law have been broadly developed in recent 20 years, particularly in respect of administrative litigation proceedings. 

LATEST STATISTICS

According to the latest monthly report issued by China Intellectual Property Administration (“CNIPA”) on trademark review cases (No. 2020.07), during the period of 16 June – 15 July 2020, the number and rate of administrative litigation got a rise. The detailed statistics are as follows:

Trademark Cases in relation to administration litigation	Court Level	Year over year rate	Month over month rate
1,894	The First Instance	Increase by 10.24%	Increase by 9.67%;
467	The Second Instance	Decrease by 28.37%	Increase by 40.66%;
20	Retrial, The People’s Supreme Court (“PSC”),	Decrease by 72.60%	Decrease by 67.74%.

The CNIPA also released total number and rate of administration litigation cases between the period of January – July 2020, namely:

Trademark Cases in relation to administration litigation	Court Level	Year over year rate
7,238	The First Instance	Decrease by 10.75%
2,990	The Second Instance	Decrease by 10.29%;
404	Retrial, The People’s Supreme Court (“PSC”),	Increase by 15.10%.

PROCEDURALS

If CNIPA maintains our application for review of refusal/non-use cancellation/invalidation unfavorable to our clients in the administrative examination proceedings, how can we seek judiciary remedy further? 

An appeal against such unfavorable decisions before the Beijing Intellectual Property Court (“Court”), i.e. an administrative lawsuit, can be lodged at a prescribed time.

THE FIRST INSTANCE

If an(a) applicant/registrant/opponent/petitioner is not satisfied with CNIPA’s decision on application/cancellation/opposition/revocation of the mark in connection with their rights, they are allowed to initiate an administrative lawsuit against CNIPA’s decision within 30 days (for foreign individual/companies/entities), and which is calculated from date receipt of the decision (or 15 days for domestic applicant) before the Beijing Intellectual Property Court (“Court”).

After initiating the appeal by the afore-mentioned deadline, the Court will grant the plaintiff (foreign individual/companies/entities) 3 months’ time to supplement notarized and legalized Power of Attorney (“PoA”) and personal identity/company documents to the Court as follows:

1.    PoA – signed by the representative of the company;

2.    Certificate of Legal Representative –signed by the said representative;

3.    Articles of Incorporation or Certificate of Incorporation of the plaintiff, showing the said representative has the authority to sign legal documents on behalf of the plaintiff; and

4.    Personal ID/passport (individual)/Certificate of Good Standing (company/entity) of plaintiff, indicating the current status of the plaintiff i.e. the company is subsisting on the register and active; the company is not subject to dissolution; and the company has not been liquidated, bankrupt, under custody or revoked. 

In general, the local Registrar of Companies (Companies House/Registry), who has issued a “Certificate of Incorporation of the company”, can issue document 4 above.

If all these notarized and legalized documents are in order, the Court will issue a notice of acceptance and set down a hearing for the case in around 1.5 months’ time, and make a decision in 2 – 3 months’ time.

Points to note:

• It is advisable to send us copies of documents 3 and 4 above by email first, so we can ascertain whether they are in order before notarizing and legalizing by the Chinese Consulate to save time and cost. 
• For Hong Kong companies/individuals, the said documents need to be notarized by a Hong Kong Lawyer who is appointed by the Ministry of Justice of China, i.e. China-Appointed Attesting Officer, and legalized and stamped by China Legal Services (Hong Kong) Co., Ltd. with their special seal for Hong Kong notarization.
• In view of the Court may change their practices from time to time, and it needs time to arrange for official translation by the designated translation agent to prepare Chinese translation as requested by the Court, if any, it is advisable to have the notarized and legalized documents in hand preferably a month prior to the deadline, so we can confirm with the Court and therefore work with the translation agent.

THE SECOND INSTANCE

If any party is dissatisfied with the decision made in the First Instance, the party can appeal to the Beijing High Court (“High Court”) within 30 days (for foreign individual/companies/entities), which is calculated from date receipt of the decision (or 15 days for domestic applicant) from the CNIPA. 

There is no requirement of any further notarized and legalized documents from the plaintiff/applicant to appeal to the Hight Court. 

The High Court usually conducts paper examination under the appeal, grounds and evidence submitted by the parties, and seldom sets down a hearing unless it is necessary.

It takes the High Court 3-6 months’ time to issue an appeal decision. Once the appeal decision is issued, it becomes final.  

RETRIAL 

As you may note, retrial proceedings are exceptional to the two instance of court proceedings. General speaking, the chance of success in retrial proceedings before the Supreme People’s Court (“SPC”) is not optimistic. In addition, the SPC will even dismiss a retrial request directly.

Nevertheless, if there are obvious mistakes either in substantive rights or procedural rights that affected the decision issued in the Second Instance, requesting the SPC to retry the case is a remedy for the judge to correct the mistakes in the retrial proceedings.

From the second table above, there were 404 retrial cases between January – July 2020, which indicates the year over year increase by 15.10%. This is a significant number that shows a chance of success in overturning a final decision by way of retrial. In fact, the SPC did overturn many cases e.g. the landmark PRETUL case (the Supreme People’s Court – No. 2014 – 38). The SPC re-tried the case, and overturned the final decision. 

Moreover, could precedents be applied when ruling a case in the said Court proceedings above?

Although case law is not binding in China, based on the current practices, the judge tends to take into account of a precedent when ruling the case, if the plaintiff/defendant cites the precedent. This means precedents would facilitate to overturn the case in the Court proceedings above, which requests the Court to adopt the same reasoning.

This tendency has been indeed improved and ascertained by the SPC in its ‘Guidance on the Application of Law to Strengthen Research of Similar cases (Trial)’ coming into effect since 31 July 2020 (“Guidance”). For more details of the Guidance, please see the SPC’s official publication in Chinese at http://www.court.gov.cn/fabu-xiangqing-243981.html.

Thanks for reading and we will keep you updated of further interesting/meaningful development of PRC administrative lawsuits. 

Should you have any inquires pertaining to trademark right and protection in China, please contact evelyne.yeung@oln-law.com or angel.luo@oln-law.com, and we will be pleased to answer and assist.

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.