Oral hearing available in Chinese trademark review cases
The Measures for Oral Hearing for Trademark Review Cases were issued by the State Administration for Industry and Commerce of China (SAIC) on May 4 2017. The measures provide detailed requirements and procedures for conducting oral hearings during trademark review cases handled by the Trademark Review and Adjudication Board (TRAB).
The measures contain 21 articles in total, mainly providing that:
- the TRAB may determine to conduct oral hearings according to parties’ request or based on its own understanding of the facts of the case (Articles 2, 3 and 5);
- the deadline for filing the application for an oral hearing is 30 days after the applicant receives the copy of the opponent’s defensive arguments, or at the same time that the opponent files defensive materials or supplemental evidence (Article 4);
- the TRAB has a duty to send written notice of the oral hearing to the parties and to publish relevant information before the oral hearing. It also has the power to raise questions and request examination of witnesses during the oral hearing (Articles 6–18).
According to the measures, an oral hearing is supplementary to the normal written hearing. It is especially helpful in significant or complex trademark review cases. It will focus on cross-examination of evidence, during which the relevant parties will be able to review all of the other side’s evidence and will be able to make arguments. The relevant parties can also bring witnesses to the oral hearing upon TRAB’s approval. However, in order to ensure the efficiency of oral hearings, they should not happen frequently. The TRAB will have great discretion on whether to hold an oral hearing for a specific case. Therefore, the application for an oral hearing will largely be on request.
The opportunity of an oral hearing in Trademark Trial and Appeal Board (TTAB) cases is already a recognised right in the United States where it is necessary to request an oral hearing. In a case involving an appeal of a trademark examiner’s refusal decision (ex parte proceeding), the request to initiate an oral hearing must come from the appellant. Oral argument will be limited to 20 minutes by the appellant and to 10 minutes by the examining attorney. In a case involving a dispute between two parties with similar trademarks (inter partes proceeding or opposition proceeding), either party can request an oral hearing. Each party will receive 30 minutes for oral argument. As with the US system, the measures now provide a way for parties to request oral argument, but they do not impose time limits.
The measures are a huge step forward for China in the matter of trademark rights. As in the United States, the measures provide trademark rights owners with additional opportunities to gain legal protection. The oral hearings will provide an opportunity for legal professionals to better present their clients’ views and evidence before the TRAB. It is recommended that, as long as the case is significant or important to the client, an application for oral hearing should be considered.
Zhao Kefeng, AnJie Law Firm, Beijing
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