4. Determination of “double jeopardy” 

4.1 “Same facts” 

Where a party submits an application based on the evidence that is newly discovered after the original administrative act or that cannot be obtained due to objective reasons or cannot be provided within the prescribed time limit during the original administrative procedure, the foregoing does not constitute a reapplication based on the “same facts”. The following circumstances constitute a reapplication based on the “same facts”: (1) the party reapplies based on evidence such as library inquiries that are available in the original administrative procedure but are not submitted without justifiable reasons; (2) the party claims infringement upon the prior copyright and has submitted relevant works in the original administrative procedure, and reapplies based on the copyright registration certificate newly obtained.

4.2 “Same reasons” 

The following circumstances do not constitute a reapplication based on the “same facts”:

(1) in the original administrative procedure, only part of the reasons claimed by the party are adjudicated, such party reapplies based on the other reasons that have not been adjudicated; (2) the party reapplies based on the reference trademarks that are not covered in the original administrative procedure; (3) in the original administrative procedure, the party applies based on Article 13 of the Trademark Law, and TRAD takes the liberty to switch to apply Article 30 of the Trademark Law and does not support the same; and the party reapplies based on Article 13 of the Trademark Law; (4) in the original trademark opposition review procedure, the party files an application based on Article 10.1.7 of the Trademark Law effective in 2001, and TRAD takes the liberty to switch to apply Article 10.1.8 of the Trademark Law effective in 2001 and supports the same. Such application is not supported after the administrative litigation proceeding and the trademark in dispute has been approved for registration. The party files a request for declaration of invalidation in accordance with Article 10.1.8 of the Trademark Law effective in 2013.

4.3 Filing a review application based on the “same facts and reasons” again

The party files a review application based on the “same facts and reasons” again and TRAD does not accept or reject the same based on the provision of Article 57 of the Implementing Measures of the Trademark Law. The party’s claim on violation of legal procedure shall not be supported.

5. Dealing with renew administrative acts

5.1 Submission of evidence

In the case of an administrative case that hears the disputed review ruling, if a party claims that TRAD violates the legal procedure in rejecting the supplementary evidence provided by such party, such claim shall generally not be accepted, except that the content involved in the evidence is not determined by effective ruling and is sufficient to affect the review outcome and yet is not accepted by TRAD.

5.2 Review procedure for reviewing a ruling

If TRAD redelivers a disputed ruling based on the effective judgement, at least one member of the panel shall be replaced. If a party claims that TRAD violates the legal procedure for non replacement, such claim may be supported. If an effective judgement has been delivered to conclude the substantive determination, and TRAD has not notified the parties for defense, exchange of evidence, cross-examination and so forth and directly makes the disputed ruling, the party’s claim that the above violates the legal procedure shall not be supported.

5.3 Dealing with filing a lawsuit

If TRAD makes a new ruling according to an effective judgement and the party files an administrative lawsuit accordingly, such case shall not accepted; if such case has been accepted, it shall be dismissed. However, the above shall not apply where the facts based on which TRAD makes the ruling no longer exist.

6. Other procedural matters

6.1 Determination basis for trademark registration items

If the registration items on the Trademark Registration Certificate are inconsistent with those set out in the Trademark Register, the Trademark Register shall be the determination basis unless there is evidence to prove that the Trademark Register is incorrect.

6.2 Calculation of the date of suing

If the plaintiff refuses to accept an administrative act and brings a lawsuit, the statute of limitation runs from the second day from its receipt of the disputed ruling.

6.3 TRAD’s burden of proof

In trademark administrative litigation, if TRAD fails to provide evidence within the time limit without justifiable reasons, it may be deemed to constitute the circumstance provided in Article 34 of the Administrative Procedure Law. However, the above shall not apply where the disputed ruling involves a third party’s legitimate rights and the third party provides evidence.

6.4 Dealing with disputed overdue ruling

In trademark administrative litigation, if TRAD fails to make the disputed ruling within the statutory time limits provided in Articles 34, 35, 44, 45 and 49 which has not actual influence on the parties’ rights, the party’s claim that the above violates the legal procedure shall not be supported.

6.5 Submission and adoption of evidence in administrative cases of review of revoked trademark rights

In an administrative case of review of the revoked trademark rights, if a party explicitly indicates that it claims the actual use of the trademark in dispute based on the original of evidence submitted before the decision of revocation is made, and TRAD revokes the registration of the trademark in dispute only in the absence of evidence submitted by the party, the party’s request to revoke the disputed decision may be supported.

6.6 Legal consequences of failure to prepay the case acceptance fee as required

In trademark administrative litigation, if the plaintiff or the appellant fails to prepay the case acceptance fee within the time limit provided in Article 22 of Measures on Payment of Litigation Fees and does not file an application to delay, reduce, or exempt, or files an application which is not approved, such case may be treated as voluntary withdrawal of complaint based on the provision of Article 61 of Interpretation of the Supreme People’s Court on the Application of the Administrative Procedure Law of the People’s Republic of China.

6.7 Responsibility of litigation costs

In trademark administrative litigation, if the disputed ruling is revoked due to adoption of the evidence supplemented by a party during litigation, the litigation fee shall be borne by the party that submits the supplementary evidence.

6.8 Failure to publish the members of the panel

If TRAD does not publish the members of the panel such that the party is unable to exercise the right to apply for evasion, the party’s claim that the above violates the legal procedure without substantive reasons for evasion may not be supported.

6.9 Agency of both parties

If the same agency or agent acts for both parties in different stages of the trademark administrative procedure respectively in the same case, the disputed administrative act may be determined to violate the legal procedure unless the parties explicitly consent.

6.10 Application of termination of litigation

In an administrative case of request for invalidation of trademark rights, if the registration of the trademark in dispute has been revoked, it does not constitute termination of litigation provided in Article 88 of Interpretation of the Supreme People’s Court on the Application of the Administrative Procedure Law of the People’s Republic of China.

6.11 Dealing with a party’s rejection to submit the “translated text” 

In trademark administrative litigation, if the third party is a foreigner, the plaintiff fails to submit the translated text issued by an institution with translation qualifications and to commission the translation and pay the corresponding fees, and the plaintiff does still not submit the foregoing within a reasonable period of time after explanation, resulting in the failure of service to such foreign party, the complaint may be dismissed. The translated text specified in the preceding paragraph includes the complaint and the court summons.

 photo from: Beijing High People's Court