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The Solving Trend of the Overstock of Trademark Cases in China
Linda Liu & Partners
It is revealed by the statistics published by China Trademark Office that the trademark registration applications increase greatly in successive years. The average annual growth is about 100,000 from 2002 to 2007. The total applications have counted five million, of which three million trademarks were registered. New trademark applications in 2007 are 708,000, ranking first in the world in six successive years.
However, there are only 210 staffs in China Trademark Office (TMO), of which measly 144 are examiners. TMO expends its best effort to improve work efficiency and increase the amount of trademark examination, which makes the examined cases increase up to 405,000 in 2007. However, it is far less than the new added amount every year and we estimate that the overstock of applications becomes about two million.
As the development of China’s market economy, the new applications for trademark registration will remain increasing in the coming two years. However, the number of examiners does not increase, which makes the overstock amount increase constantly and causes a severe problem. The increased pressure home and abroad and every examiner’s heavy burden make the TMO unbearable. Meanwhile, besides the rapid increase of applications, the opposition and review cases are also increasing constantly, which also leads to the overstock of opposition and review cases. Each opposition or review case has to wait 3 to 4 years to reach the result. For complicated cases such as opposition reexamination or dispute, the party is likely to wait 5 or 6 years to get the adjudication, which makes many business opportunities lost in the long wait.
Therefore, the Trademark Office and Trademark Review and Adjudication Board (TRAB) face the serious and pressing task of solving the overstock of trademark examination and review cases.
TMO and TRAB have started to try a series of reform project since 2006, such as open internet search and application, attempting to alleviate the burden of staff using electronic instrument and adjust the inner framework and personnel assignment. However, these measures could not solve the overstock problem radically. This year the trademark administration department has made up its mind to tackle its overstock problems with determination in next three years. There are 3 main steps:
1. Recruiting widely
TMO promulgated on April 6, 2008 that as the institution directly under the State Administration for Industry and Commerce, the Tongda Trademark Service Center plans to recruit 400 contracted trademark assistants socially. Among them, 300 are examination assistants and 100 are review assistants. To increase the number of examiners is one of the key solutions of overstock problems.
2. Setting objectives
Fu Shuangjian, deputy director general of State Administration for Industry and Commerce, on behalf of State Administration, signs the Objectives of Responsibility of solving the overstock of trademark registration examination and review with the TMO and TRAB on March 27, 2008.
According to Objectives of Responsibility of solving the overstock of trademark registration examination (2008-2010) and Objectives of Responsibility of solving the overstock of trademark review, TMO and TRAB should be targeted at solving overstock problem within 3 years, setting annual project and quality control system to improve the examination and review efficiency and to make sure that the examination and review turn to normal in the beginning of 2011.
3. Amendment of Law
Now the third draft amendment of Trademark Law is undergoing the preparatory phase. The contents of amendment characterize in simplifying examination procedure, establishing TRAB in quasi-judicial status and defining trademark dispute as civil dispute.
For example, TMO will no longer examine comparative grounds (whether the applied trademark conflicts with the prior trademark right) in the new application procedure, which will certainly reduce the load of examination greatly and shorten the term consequently and enable earlier registration of most trademarks.
Secondly, it cancels opposition reexamination procedure and establishes simplified procedure. The opposition cases will be directly examined by TRAB. If the opposition lacks sufficient reasons and authentic evidence, TRAB will directly deny the opposition with no need to deliver notification to the opposed party. The opposed will not be asked to reply, which will save time for the opposed trademark to be approved for immediate registration. If TRAB accepts or partially accepts the opposition, it will issue notification to the opposed asking for reply. If the opposed is not satisfied with the result, he may institute legal proceedings in the court.
Thirdly, the new Trademark Law aims at freeing trademark administrative department from heavy administrative litigation. In the dispute cases of trademark rights, if one party involved in the case would not be satisfied with the administrative decision, he may institute legal proceedings in the court. However, TRAB will no longer be one party, the defendant should be the opposing party involved and Civil Law is applicable.
We believe that China trademark examination and review efficiency will be greatly improved by the above-mentioned solutions and the parties’ legal rights are likely to be effectively protected as quickly as possible. Except what is mentioned, we still expect that China trademark administration department take more effective and positive measures to solve the overstock of trademark cases being long paid attention home and abroad and to improve China further as a grand trademark country.
