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Rule 75 An interested party does not need to adduce evidence to prove the following facts:
(1) facts known to all;
(2) facts deducted from the law;
(3) facts proven according to the law;
(4) facts deducted on the basis of experience and laws of the daily life; and
(5) other facts in respect of which adduction of evidence is not required under the law.
Except that an interested party has evidence to the contrary which is sufficient enough to upset the facts.
Rule 76 an interested party who furnishes the Trademark Review and Adjudication Board with documentary evidence shall furnish the original, including the original text, the authentic text and the copy. The interested party who has difficulty furnishing the original may furnish the Xerox copies, photographs or extracts certified to be consistent with the original. Where the Xerox copies, photographs or extracts, which are certified to be consistent with the original, of the original documentary evidence kept by a relevant department, the sources shall be indicated and sealed thereby upon verification.
Rule 77 an interested party who furnishes the Trademark Review and Adjudication Board with material evidence shall furnish the original material. The interested party who has difficulty furnishing the original may furnish the reproduction certified to be consistent with the original material or other evidence such as photographs or video-recordings of said material evidence. Where the original is of relatively many varieties, a part thereof shall be furnished.
Rule 78 Where an interested party furnishes the Trademark Review and Adjudication Board with computer data or audiovisual reference material, such as sound-recordings or video-recordings, the following requirements shall be complied with:
(1) the original carrier of the relevant reference material be furnished; where it is indeed difficult to furnish the original carrier, the reproduction thereof may be furnished;
(2) the way, time, reproducer and facts to be proved of the reproduction be indicated; and
(3) the sound-recording reference material be attached with the transcripts thereof.
Rule 79 An interested party furnishes the Trademark Review and Adjudication Board with a witness's oral evidence , the following requirements shall be complied with:
(1) the name, age, gender, residence, employer or profession and other information of the witness be indicated;
(2) the witness signs the oral evidence; where he cannot sign it, he put his seal on it or give proof in some other way;
(3) the date on which it is produced be indicated; and
(4) documents showing the identification of the witness, such as a copy of identification card shall be attached.
Rule 80 Where an interested party furnishes the Trademark Review and Adjudication Board with an appraisal conclusion, he shall indicate the entrusted, subject matters of appraisal entrusted, relevant material submitted to the appraisal department, basis of appraisal and statements of the qualification of the appraisal department and appraisers and the appraisal conclusion shall be signed by the appraisers and sealed by the appraisal department. For an appraisal conclusion obtained through analysis, the process of analysis shall be explained.
Rule 81 Where evidence an interested party furnishes to the Trademark Review and Adjudication Board is formed outside the territory of the People's Republic of China, the evidence shall be notarized by a notary office of the country and legalized by the embassy or consulate of the People's Republic of China in that country, or undergo the certification procedure provided for in the relevant treaty concluded between the People's Republic of China and the country.
Where evidence an interested party furnishes to the Trademark Review and Adjudication Board is formed in Hong Kong, Macao and Taiwan, he shall go through the relevant certification procedure.
Rule 82 Where an interested party furnishes to the Trademark Review and Adjudication Board instruments or explanatory material in a foreign language, he shall attach the Chinese translation thereof. Where an interested party who has furnished evidence in a foreign language fails to submit the Chinese translation thereof, the evidence in the foreign language shall be deemed not to have been submitted.
Where the other party has objection to the specific content of the translation, he shall submit the Chinese translation of the part to which the objection is raised. If necessary, an entity accepted by both parties may be entrusted with the translation of the text, in whole or in part, used or objected to.
Where both parties fail to reach an agreement on the translation entrustment, the Trademark Review and Adjudication Board may entrust a professional translation entity with the translation of the text, in whole or in part, used or objected to. Each party shall bear 50 percent of the fees necessary for the entrusted translation. A party's refusal to pay the translation fee shall be deemed its acceptance of the translation submitted by the other party.
Rule 83 In the following circumstances, the Trademark Review and Adjudication Board may investigate and collect evidence:
(1) facts involved that are likely to prejudice the interests of the country and public; and
(2) matters of procedure that are irrelevant to substantive disputes, such as termination of the review and adjudication or withdrawal;
Rule 84 A single piece of evidence may be verified and confirmed as to the presence and strength of evidential force in relation to the following aspects:
(1) whether the evidence is the original text, original material, copy or reproduction; whether it is consistent with the original;
(2) whether the evidence is relevant to the facts of a case;
(3) whether the evidence conforms to the law in terms of form or source;
(4) whether the evidence is true in content; and
(5) whether the witness or the person furnishing the evidence has interest in an interested party.
Rule 85 The review and adjudication staff members shall comprehensively examine and evaluate all the evidence as to the degree of the relevance of all the evidence to the facts of a case and the relationship of the evidence.
Rule 86 Evidence obtained in ways prejudicing the lawful rights and interests of another person or contrary to provision on prohibition of the law shall not serve as the basis for ascertaining the facts in a case.
Rule 87 The following evidence shall not alone serve as the basis for ascertaining facts in a case:
(1) Oral evidence from a minor which does not match his age or intelligence;
(2) Oral evidence from a witness who is a relative, affiliate or otherwise closely related to an interested party in his favor or oral evidence not in his favor from a witness who is adversely-related thereto;
(3) Oral evidence from a witness who should attend the public review and adjudication but fails to without justification;
(4) Audiovisual reference material difficult to be detected as to whether it is modified or not;
(5) Copy or reproduction impossible to be verified with the original;
(6) Proofs which one party or another person has modified and which the other party does not accept; and
(7) Any other proofs that cannot serve as the basis for ascertaining the facts in a case.
Rule 88 A witness presenting evidence shall objectively state the truth of his personal experience, and shall not do so in conjectural, inferential or commentary language.
A person who is not able to correctly express his will shall not act as a witness.
Rule 89 The following evidence which one party furnishes and to which the other party raises his objection without evidence to the contrary sufficient enough to deny the truth thereof shall be established by the Trademark Review and Adjudication Board as having its evidential force:
(1) The original documentary evidence or the Xerox copies, photographs, copies or extracts thereof which are verified to be consistent with the original documentary evidence;
(2) The original material evidence or the copies, photographs or video-recording materials thereof which are verified to be consistent with the original material evidence;
(3) The audiovisual reference material which is supported by other evidence and obtained by legal means and free of any doubt or the reproduction thereof verified without any inconsistency found.
Rule 90 Where the other party does not have evidence and reasons sufficient enough to rebut an appraisal conclusion which an interested party has entrusted an appraisal department with making, the evidential force of the appraisal conclusion may be established.
Rule 91 In respect of the evidence one party has furnished, the other party accepts or the evidence to the contrary furnished thereby is not sufficient enough to rebut it, the Trademark Review and Adjudication Board may determine its evidential force.
Where in respect of the evidence one party has furnished, the other party has objection thereto and presents evidence to rebut it, and the other party accepts the rebutting evidence, the evidential force of the rebutting evidence may be determined.
Rule 92 Where both parties furnish evidence to the contrary in respect of the same fact, neither has sufficient ground for the denial of the evidence of the other party, the Trademark Review and Adjudication Board shall evaluate, considering the circumstances of a case, whether or not the evidence furnished by one party is obviously more valid in evidential force than that by the other party, and confirm the evidence carrying more valid evidential force.
Where it is impossible to evaluate the evidential force of the evidence, and, as a result, it is difficult to ascertain the facts in dispute, the Trademark Review and Adjudication Board shall make determination according to the doctrine for distribution of burden of proof.
Rule 93 The Trademark Review and Adjudication Board shall confirm the facts and accepted evidence acknowledged adverse to an interested party in his Application, Reply, Written Statement, and the statements made by the agent he has entrusted in the course of review and adjudication, except that the party goes back on his words and has evidence to the contrary which is sufficient enough to upset the evidence.
Rule 94 Where an interested party has made his own statement of, but cannot furnish other relevant evidence to back up, his claim, the claim shall not be supported, except that the other party otherwise accepts the claim.
Rule 95 The Trademark Review and Adjudication Board may determine the evidential force of several pieces of evidence as to the same fact according to the following principles:
(1) Documents and instruments prepared by a State agency and any other competent department according to the functions and authority thereof prevail over other documentary evidence;
(2) Appraisal conclusions, materials kept on file and notarized or registered documentary evidence prevail over other documentary evidence, audiovisual reference evidence and oral evidence from a witness;
(3) Original documents or materials prevail over copies or reproductions;
(4) Appraisal conclusions made by statutory appraisal departments prevail over those by other appraisal departments;
(5) Original evidence prevails over to derivative evidence;
(6) Other oral evidence of witnesses prevails to oral evidence from a witness who is a relative or otherwise closely related to an interested party in his favor;
(7) Oral evidence from a participant of the public review and adjudication prevails over that from a non-participant; and
(8) Several pieces of evidence variant in category and consistent in content prevail over a single isolated piece of evidence.
Chapter VI Time Limit and Service
Rule 96 the time limit includes the statutory time limit and that fixed by the Trademark Review and Adjudication Board.
The time limit is counted in days, months and years. The beginning day of a time limit is not counted.
Where the last day on which a time limit expires is a public holiday, the first workday following the public holiday is the date on which the time limit expires.
Rule 97 Where any document or material is sent to the Trademark Review and Adjudication Board, the date of receipt shall be the date of delivery where it is delivered personally, or the date of posting indicated by the postmark if it is sent by post; where the date of posting indicated by the postmark is illegible, or there is no postmark, the date of receipt shall be the date on which the Trademark Review and Adjudication Board actually receives the document or material, except that the interested party is able to present evidence as to the actual date of posting indicated by the postmark.
Rule 98 any document of the Trademark Review and Adjudication Board may be served by post, by personal delivery or by other means. Where an interested party entrusts a trademark agency, delivery of the document to the trademark agency shall be deemed delivery thereof to the interested party.
Where any document is sent to an interested party by the Trademark Review and Adjudication Board, the date of receipt shall be the date of receipt indicated by the postmark on which the interested party receives it if it is sent by post; where the date of posting indicated by the postmark is illegible, or where there is no postmark, or it is not returned to the addressor by the Post Office the document shall be deemed to have been delivered to the interested party on the fifteenth day from the date of posting the document; the date of receipt shall be the date of delivery if it is delivered personally. Where any document cannot be sent by post or by personal delivery, the document may be served by making an announcement. At the expiration of the thirtieth day from the date of the announcement, the document shall be deemed to have been served.
Chapter VII Supplementary Provisions
Rule 99 The circumstances having arisen before entry into force of the Decision on the Amendment of the Trademark Law on 1 December 2001 that are listed in Articles 4, 5, 8, 9, paragraph one, 10, paragraph one (2), (3) and (4), 10, paragraph two, 11, 12, 13, 15, 16, 24, 25 and 31 of the revised Trademark Law and that the Trademark Review and Adjudication Board reviewed and adjudicated after entry into force of the Decision on the Amendment of the Trademark Law shall be reviewed and adjudicated pursuant to the relevant provisions of the revised Trademark Law. In respect of other circumstances, the Trademark Review and Adjudication Board shall apply the relevant provisions of the former Trademark Law to the review and adjudication thereof.
Rule 100 Where an interested party applies to the Trademark Review and Adjudication Board for review and adjudication in respect of a dispute over a trademark that had been registered for a year when the Decision on the Amendment of the Trademark Law entered into force, the time limit for filing the application provided for in Article 27, paragraph two, of the former Trademark Law shall apply in handling the application to the Trademark Review and Adjudication Board for review and adjudication. Where an interested party applies to the Trademark Review and Adjudication Board for review and adjudication in respect of a dispute over a trademark that had been registered for less than a year when the Decision on the Amendment of the Trademark Law entered into force, the time limit for filing the application provided for in Article 41, paragraph three, of the revised Trademark Law shall apply in handling the application to the Trademark Review and Adjudication Board for review and adjudication
Where an relevant entity or person files on application for review and adjudication according to the provisions of Article 27 of the former Trademark Law and Rule 25 of Implementing Regulations thereof before entry into force of the Decision on the Amendment of the Trademark Law, and the application falls into the provisions of Articles 13, 15, 16 or 31 of the revised Trademark Law, the provision for the time limit for filing application for review and adjudication of Article 41, paragraph two, of the revised Trademark Law does not apply.
Rule 101 Where cases had been accepted before entry into force of the Decision on the Amendment of the Trademark Law, but fall outside the scope of review and adjudication by the Trademark Review and Adjudication Board provided for in Article 28 of the Implementing Regulations and the review and adjudication of which have not been closed, the Trademark Review and Adjudication Board shall return them, notify the applicants in writing and explain the reason.
Rule 102 Where cases of re-review and re-adjudication that have been accepted according to the provisions of Rules 34 and 35 of the Rules for Trademark Review and Adjudication promulgated by the State Administration for Industry and Commerce on 2 November 1995 before entry into force of the Decision on the Amendment of the Trademark Law fall into the scope of review and adjudication by the Trademark Review and Adjudication Board as provided for in Article 28 of the Implementing Regulations, the Trademark Review and Adjudication Board shall conduct review and adjudication thereof again and make decision or adjudication thereon pursuant to the revised Trademark Law and the Implementing Regulations thereof, except that it is otherwise provided for in Rules 99 and 100 of these Rules for the application of the relevant provisions of the former Trademark Law.
Rule 103 the documents or forms for handling review and adjudication matters shall be formulated and published by the State Administration for Industry and Commerce.
Rule 104 The Trademark Review and Adjudication Board shall establish an expert’s consultation group for consultation or comments on relevant points at issue in the trademark review and adjudication.
The experts consultation group shall be composed of legal experts, and the Trademark Review and Adjudication Board shall appoint experts to make the experts consultation group.
Rule 105 before these Rules enter into force, the Trademark Review and Adjudication Board shall hear cases of trademark review and adjudication according to the procedure under the Rules for Trademark Review and Adjudication promulgated by the State Administration for Industry and Commerce on 2 November 1995. However, where the Rules run into conflict with the Decision on the Amendments of the Trademark Law, the Decision on the Amendment of the Trademark Law shall govern. Where the Rules run into conflict with the Implementing Regulations after the Implementing Regulations enter into force, the Implementing Regulations shall govern. Where the State Administration for Industry and Commerce issues notification to connect with the Rules. The provisions of the relevant notification shall be complied with.
Rule 106 The State Administration for Industry and Commerce shall be responsible for the interpretation of these Rules.
Rule 107 These Rules shall enter into force on 17 October 2002, and the Rules for Trademark Review and Adjudication promulgated by the State Administration for Industry and Commerce on 2 November 1995 shall be simultaneously abrogated.