(1) Basic information

2015, the Trademark Review and Adjudication Board(TRAB) concluded totally 108,900 cases. Because the involved parties refused to accept the decisions and filed appeals with the Beijing First Intermediate Court and Beijing IP Court, the TRAB received 7632 notices of respondent, increased 2.4% comparing with 7452 cases of year 2014. 2012 appeals were filed with the Beijing High Court, basically the same with 2015 cases of year 2014. 224 retrials were filed before the Supreme People’s Court, increased 286.2% comparing with 50 cases of year 2014.

In 2015, the TRAB received totally 6618 first instance judgments with an increase of 59.2%, 2094 judgments of second instance with an increase of 51.6%; 179 retrial judgments with an increase of 244.2%. Among the concluded cases, the TRAB has a win rate of 81.4% in first instance and 70.8%.win rate in second instance.

(2) Percentage of reasons for losing

Reasons for losing

Year 2015

Year 2014

Trademark similar

22%

29%

Goods/services similar

11%

16%

Well-known trademark

6%

10%

“unhealthy influence” of Article 10.1(8) , 2013 Trademark Law

5%

10%

Preemption of mark already in use and obtained certain influence.

2%

3%

Changed circumstances

15%

8%

Co-existence

4%

3%

Article 10.1(7) , 2013 Trademark Law

2%

0.1%

distinctiveness

6%

5%

Other prior rights

6%

5%

Collective, certificate trademark

0.6%

0

Trademark use under Article 44(4) , 2001 Trademark Law

6%

2%

Registration by fraud or any other unfair

1.2%

0.6%

Acceptance of new evidences

14%

8%

Procedure issues

6.2%

3.8%

(3) Major reasons for losing

  1. Changed circumstances and acceptance of new evidences In 2015, the cases lost due to changed circumstance sand acceptance of new evidences both increased significantly. Changed circumstances include the cancellation, assignment or nonrenewal of the cited marks. Acceptance of new evidences means the courts have little limitation on evidence submition and will generally accept all evidences newly filed.   
  2. Some law regulations and examination standards are not very clear in the transition period of the old and new Trademark Law, which cause different understanding between the TRAB and the Courts on articles like 10.1(7) and 32.
  3. The courts are more open in accepting co-existence agreement and judging similarity of goods/services.
  4. The TRAB and the Courts have different understanding to examination standards and application of them on cases in respect of well-known trademark recognition and protection, trademark distinctiveness through use, certificate trademark, collective trademark, cancelation on the basis of non-use.  
  5. The TRAB made mistakes in examination cases, like violating procedures, judging goods/service similarity incorrectly, etc.

Source: http://www.cicn.com.cn/zggsb/2016-09/20/cms91051article.shtml 

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