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JUDGMENT UNLAWFUL IF LITIGATION CONTINUED DURING TRADEMARK INVALIDATION PROCEEDINGS
If a registered trademark violates Article 37 of the Trademark Law, an interested party may ap-ply to the trademarks authority for invalidation of the registration. While the invalidation pro-ceedings are in progress, any civil or criminal proceedings concerning the exclusive right to use the trademark should be suspended until an ir-revocable outcome is reached in the invalidation proceedings. The above is provided by Article 52 Paragraph 1 and Article 60 of the Trademark Law. But the law does not make any provision as to the validity of a judgment made by a court if it does not suspend such proceedings.
The Supreme Court, in a recent case, held that as Article 60 of the Trademark Law provides that litigation "shall" be suspended, the courts have no discretion in such cases. Therefore, if a court continues with proceedings and delivers a judgment in a case which should have been suspended pending the irrevocable outcome of invalidation proceedings, then the judgment is illegal according to Article 379, Item 9 of the Code of Criminal Procedure. On this basis, the Court set aside the part of the original judgment with the procedural flaw.
The Patent Law contains similar provisions on the suspension of litigation, but they differ somewhat from those in the Trademark Law. Article 94 of the Patent Law provides that the investigation or trial of civil or criminal pro-ceedings relating to an invention patent may be suspended pending the irrevocable outcome of an application, opposition, cancellation, or revocation case. Articles 105 and 122 of the law also apply Article 94 mutatis mutandis to new utility model and new design patent cases. The Court held, in a 2002 case, that as the Patent Law provides that proceedings "may" be suspended, the decision whether or not to suspend proceed-ings lies within the discretion of the court, and suspension is not compulsory. From this ruling we can infer that if a court, on weighing the circumstances of a patent-related case, does not suspend proceedings and proceeds to deliver a judgment, the judgment should not be unlawful.