The High People's Courts of all provinces, autonomous regions, and municipalities directly under the Central Government, the Military Court of the People's Liberation Army, and the Production and Construction Corps Branch of the Xinjiang Uygur Autonomous Region High People's Court: We hereby issue to you the "Opinions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases of Trademark Authorization and Confirmation", and request that you conscientiously implement it.

April 20th, 2010

Since the implementation of the Decision of the Standing Committee of the National People's Congress on Amending the Trademark Law of the People's Republic of China on December 1, 2001, the people's courts have begun to accept and hear administrative cases of trademark authorization and confirmation of specific administrative actions such as trademark rejection review, trademark opposition review, trademark dispute, and trademark revocation review filed by interested parties against the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce in accordance with the law. They have actively explored relevant legal application issues and accumulated rich trial experience. In order to better handle administrative cases of trademark authorization and certification, further summarize trial experience, clarify and unify trial standards, the Supreme People's Court has held multiple special meetings and conducted special research, extensively listening to the opinions of relevant courts, departments, experts and scholars, and studying and summarizing the legal application issues in the trial of administrative cases of trademark authorization and certification. On this basis, in accordance with the provisions of the Trademark Law of the People's Republic of China, the Administrative Litigation Law of the People's Republic of China, and other laws, combined with the actual trial, the following opinions are proposed for the trial of such cases:

1. When adjudicating administrative cases of trademark authorization and certification, the people's court may strictly control the standards for trademark authorization and certification in accordance with the law, fully consider the interests of consumers and industry operators, effectively curb improper registration behavior, and pay attention to the protection of the rights and interests of prior trademarks, enterprise names, and other commercial signs with high popularity and strong distinctiveness of others, in order to eliminate the possibility of confusion of commercial signs as much as possible; For disputed trademarks that have been in use for a long time, have established a high market reputation, and have formed relevant public groups, it is necessary to accurately grasp the legislative spirit of the Trademark Law on the coordination between protecting the rights and interests of prior commercial signs and maintaining market order, fully respect the market reality that the relevant public has objectively distinguished the relevant commercial signs, and pay attention to maintaining the established and stable market order.

2. In practice, some symbols or their constituent elements may have exaggerated elements, but based on daily life experience or the common understanding of the relevant public, they are not enough to cause misunderstandings. For this situation, the people's court should not consider it as exaggerated propaganda with deceptive signs.

3. When the people's court reviews and judges whether the relevant symbol constitutes a situation with other adverse effects, it should consider whether the symbol or its constituent elements may have a negative or adverse impact on China's political, economic, cultural, religious, ethnic and other social public interests and public order. If the registration of a trademark only damages specific civil rights and interests, as the Trademark Law has already provided for remedies and corresponding procedures, it is not appropriate to consider it as having other adverse effects.

4. According to the provisions of the Trademark Law, place names in administrative divisions at or above the county level or foreign place names known to the public generally cannot be registered and used as trademarks. In practice, some trademarks consist of place names and other elements. In this case, if the trademark has significant characteristics as a whole due to the addition of other elements, and no longer has the meaning of place names or does not have place names as the main meaning, it should not be recognized as an unregistered trademark because it contains place names of administrative divisions at or above the county level or foreign place names known to the public.

5. When the people's court hears administrative cases of trademark authorization and confirmation, it should examine and judge whether the trademark has significant features as a whole based on the common understanding of the relevant public who use the goods designated by the disputed trademark. If the descriptive elements contained in the logo do not affect the significant characteristics of the trademark as a whole, or if the descriptive logo is expressed in a unique way and the relevant public can identify the source of the goods through it, it should be recognized as having significant characteristics.

6. When adjudicating administrative cases of trademark authorization and confirmation, the people's court shall examine and judge whether the disputed foreign trademark has significant characteristics based on the common understanding of the relevant public in China. Although the foreign language in the disputed symbol has inherent meanings, if the relevant public can identify the source of the goods with this symbol, it does not affect the recognition of its significant features.

7. When determining whether a disputed trademark is a generic name, the people's court shall examine whether it belongs to a legal or customary trade name. According to legal provisions or national or industry standards, if it belongs to the common name of a commodity, it should be recognized as a common name. If the relevant public generally believes that a name can refer to a class of goods, it should be recognized as a commonly used name by convention. If listed as a product name in professional reference books or dictionaries, it can serve as a reference for identifying commonly used names.

The commonly used names are generally judged based on the common understanding of the relevant public nationwide. For products that have a relatively fixed market due to historical traditions, local customs, geographical environment, and other reasons, the commonly used names in the relevant market can be recognized as generic names.

If the applicant knows or should know that the trademark they are applying for registration is a commonly accepted commodity name within a certain region, they shall consider the trademark they are applying for registration as a generic name.

8. The people's court generally judges whether the disputed trademark belongs to a generic name based on the factual status at the time of filing the trademark registration application. If the disputed trademark does not belong to the common name at the time of application, but has already become a common name at the time of registration approval, it should still be recognized as the common name of the product; Although it belongs to the generic name of this product at the time of application, if it is no longer a generic name at the time of registration approval, it does not prevent it from obtaining registration.

9. If a certain symbol only or mainly describes or indicates the quality, main raw materials, function, purpose, weight, quantity, place of origin, and other characteristics of the goods used, it should be deemed that it does not have significant features. If the logo or its constituent elements imply the characteristics of the product, but do not affect its ability to identify the source of the product, it does not fall into the above situation.

10. The people's court may refer to relevant provisions such as Article 5, Article 9, and Article 10 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Dispute Cases Involving the Protection of Well known Trademarks when adjudicating administrative cases involving trademark authorization and confirmation related to the protection of well-known trademarks.

11. For well-known trademarks already registered in China, when determining their protection scope on dissimilar goods, attention should be paid to adapting to their level of fame. For well-known trademarks that are widely known to the public and have already been registered in China, when determining their protection scope on dissimilar goods, a wider range of protection should be given that is commensurate with their level of fame.

12. If an agent or representative in the sense of a sales agency relationship, such as a trademark agent, representative, or distributor, registers the trademark of the principal or representative in their own name without authorization, the people's court shall determine that it is an act of the agent or representative registering the trademark of the principal or representative. In judicial practice, some acts of preemptive registration occur during the stage when the agency representative relationship is still under negotiation, that is, preemptive registration occurs first and the agency representative relationship is formed later. At this time, it should be regarded as the preemptive registration behavior of the agent or representative. Trademark registration applicants who collude with the aforementioned agents or representatives to engage in unauthorized registration activities may be considered as agents or representatives. For collusive registration behavior, it can be inferred based on the specific identity relationship between the trademark registration applicant and the aforementioned agent or representative, depending on the situation.

13. The trademark marks that agents or representatives are not allowed to apply for registration include not only marks that are identical to those of the principal or representative, but also marks that are similar; The goods that cannot be applied for registration include both goods that are the same as those used by the principal or representative's trademark, as well as similar goods.

14. The people's court may refer to the relevant provisions of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Trademark Civil Dispute Cases" when determining the similarity of goods and trademarks in the trial of trademark authorization and confirmation administrative cases.

15. When the people's court reviews and judges whether the relevant goods or services are similar, it should consider whether the functions, uses, production departments, sales channels, consumer groups, etc. of the goods are the same or have a significant correlation; Whether the purpose, content, method, and target audience of the service are the same or have a significant correlation; Whether there is a significant correlation between goods and services, whether it is easy for the relevant public to believe that the goods or services are provided by the same entity, or whether there is a specific connection between their providers. The International Classification of Goods and Services for Trademark Registration and the Classification of Similar Goods and Services can serve as references for determining similar goods or services.

16. When determining whether a trademark is similar, the people's court should not only consider the constituent elements of the trademark logo and the degree of similarity as a whole, but also take into account factors such as the distinctiveness and popularity of the relevant trademark, the degree of association between the goods used, etc., and use whether it is easy to cause confusion as the judgment standard.

17. To correctly understand and apply the general provision of Article 31 of the Trademark Law regarding "the application for trademark registration shall not infringe upon the existing prior rights of others". When the people's court reviews and judges whether the disputed trademark damages the existing prior rights of others, it shall protect the prior rights that have special provisions in the Trademark Law in accordance with the special provisions of the Trademark Law; Although there are no specific provisions in the Trademark Law, if it belongs to the legitimate rights and interests that should be protected according to the General Principles of Civil Law and other laws, it should be protected according to the general provisions.

The people's court reviews and judges whether the disputed trademark damages the existing prior rights of others, generally based on the date of the disputed trademark application. If the prior right no longer exists when the disputed trademark is approved for registration, it does not affect the registration of the disputed trademark.

18. According to the provisions of the Trademark Law, applicants are not allowed to register trademarks that have already been used by others and have a certain impact through improper means. If the applicant knowingly or should have known that someone else has already used and has a certain impact on the trademark, it can be determined that they have used unfair means.

Trademarks that are actually used within China and are known to a certain range of relevant public should be recognized as trademarks that have already been used and have a certain impact. If there is evidence to prove that the prior trademark has a certain duration of use, region, sales volume, or advertising promotion, it can be determined that it has a certain impact.

For trademarks that have already been used and have a certain impact, it is not appropriate to provide protection on dissimilar goods.

19. When adjudicating administrative cases involving the revocation of registered trademarks, the people's court shall examine and judge whether the disputed trademark was obtained through other improper means, and consider whether it is a means other than deception that disrupts the order of trademark registration, damages public interests, improperly occupies public resources, or seeks improper benefits in other ways. For situations that only harm specific civil rights and interests, Article 41 (2) and (3) of the Trademark Law and other corresponding provisions of the Trademark Law shall be applied for examination and judgment.

20. When the people's court hears administrative cases involving the revocation of a registered trademark that has been suspended from use for three consecutive years, it shall correctly determine whether the act in question constitutes actual use in accordance with the legislative spirit of the relevant provisions of the Trademark Law.

The trademark owner's own use, permission for others to use, and other uses that do not violate the trademark owner's will can all be considered as actual use. If there are slight differences between the actually used trademark and the approved registered trademark, but their distinctive features remain unchanged, it can be considered as the use of a registered trademark. If there is no actual use of a registered trademark, only a transfer or licensing act, or only the publication of trademark registration information or a declaration of exclusive rights to the registered trademark, it should not be recognized as trademark use.

If the trademark owner is unable to actually use the registered trademark or stops using it due to objective reasons such as force majeure, policy restrictions, bankruptcy liquidation, etc., or if the trademark owner has the intention to actually use the trademark and has necessary preparations for actual use, but has not actually used the registered trademark due to other objective reasons, it can be recognized as having legitimate reasons.