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GUIDELINES ON HEARINGS FOR CASES CONCERNING TRADE-MARK DISPUTES PUBLISHED
Jane H. C. Chen
On 15 February 2005, the Intellectual Property Office (IPO) published the Guidelines on Hear-ings for Cases Concerning Trademark Disputes, which set out procedures for investigation of evidence through an oral debate hearing between the parties to the dispute and any interested party. The major contents of the guidelines are as fol-lows:
Cases eligible for holding a hearing are limited to trademark opposition, invalidation and revocation actions.
A hearing may be held at the written request of either party or arranged ex officio by the in-charge examiner of the IPO. If the IPO considers that the hearing requested by either party is unnecessary, the IPO must expressly state in the decision the reasons why a hearing was not held.
When the IPO decides to hold a hearing, it must notify the parties to the dispute and any known interested party in writing of the hear-ing twenty (20) days prior to the date set for the hearing. However, if agreed by the parties to the dispute and the known interested party, the twenty-day time limit should not apply. An application stating any good cause for re-scheduling the hearing may be filed ten (10) days prior to the date set for the hearing.
Where a party has been notified to attend a hearing but has failed to do so, the IPO may proceed with an ex party hearing.
Except if the interests of either party will be severally damaged, the procedures of a hear-ing should be in public and proceed in Man-darin. If a foreign language is used, the party should bring an interpreter.
If the parties to the dispute desire to reach a settlement, or any new evidential materials that cannot be verified during the procedures of the hearing and have a major impact on the case are provided, the procedures of the hearing may be suspended upon an application or by an ex officio action.
In holding a hearing, investigation and debate may be carried out with respect to relevant matters and evidential materials, for example, the issue on whether the trademark is distinc-tive, whether the trademark will cause confu-sion, or the degree of fame of the trademark or any circumstances that may diminish the dis-tinctiveness or reputation of the trademark.
If dissatisfied with a decision after an IPO hearing, the normal administrative appeal is dispensed with, and the party should instead directly file an administrative suit.
