Less deference to be paid to TRAB decisions in administrative reviews

China
Recent changes in administrative review have resulted in the shift of appeals of Trademark Review and Adjudication Board (TRAB) decisions from the administrative chambers to the IP tribunals.

The development of a unified IP court capable of hearing administrative, civil and criminal IP cases was one of the key proposals of China’s National IP Strategy (for further details please see "Compendium of China National IP Strategy released"). The Beijing courts have exclusive jurisdiction over any administrative appeal of a TRAB decision relating to the refusal of a trademark application, or opposition or cancellation proceedings. These courts consist of a number of chambers - criminal, civil (including a specialized IP tribunal) and administrative.
 
In the past, the administrative review of TRAB decisions was carried out by the administrative chambers of the Beijing’s courts. The sole exception to this rule was that the specialized IP tribunal of the civil chamber could review a TRAB decision if the dispute involved civil rights that centred on the trademark at issue. Following the issuance by the Supreme People's Court of China of the "Rules for Distributing Jurisdiction in Administrative IP Cases Concerning the Grant of Rights and the Recognition of Patents and Trademarks", as of July 1 2009 administrative appeals of TRAB decisions will be reviewed by the specialized IP tribunal of the civil chamber of the Beijing First Intermediate People's Courts. Any further appeal will be heard by the specialized IP tribunal of the civil chamber of the Beijing High People’s Court.
 
The rules represent a significant step towards the goal of establishing a unified judicial IP system for civil, administrative and criminal cases. However, the redistribution of jurisdiction for administrative review from the administrative chambers to the IP tribunals may lead to significant differences in the adjudication of administrative cases.
 
Article 54 of the Administrative Procedure Law sets out the grounds on which an appellant may challenge the legitimacy of a TRAB decision. The most commonly raised are:
  • whether there is an inadequacy of essential evidence to support the decision rendered by the TRAB;
  • whether the TRAB applied the law correctly in deciding the case; and
  • whether the process complied with China's administrative procedural law.
Because the experience and expertise of the administrative chambers is predominantly focused on administrative law and procedure, TRAB decisions under review in these chambers will be scrutinized particularly as to whether administrative law and procedure have been followed. Moreover, greater deference may be paid to the decision of the TRAB in deciding whether the evidence supports its decision.
 
The IP tribunals, on the other hand, have greater experience and expertise in trademark law. Given that the issue of distinctiveness serves as the basis for trademark law, and that any question directed towards distinctiveness is a fact-driven exercise, it is likely that the IP tribunals will give greater consideration to the evidence relied upon by the parties.
 
The change in jurisdiction for TRAB administrative appeals is thus likely to result in a greater emphasis being placed on evidence. Parties to an administrative appeal of a TRAB decision should thus strategize accordingly. 

George Chan, Rouse, Beijing

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