30 May-5 June 2010, The Netherlands, France and Switzerland IPR2 supported a study tour of officials from the Legislative Affairs Commission (LAC) as part of preparations for revising China’s Trademark Law and Civil Procedure Law. It involved an interactive exchange between LAC and European officials and experts on the adjustment of the legal framework for trademark protection and civil procedure and contributed to the delegates understanding of the existing legal framework, mechanisms and best practices in the EU.
The seven delegates, coming from the economic and civil law offices of LAC, are responsible for drafting the revision to this legislation. They met with the Dutch Ministry of Justice and Ministry of Economic Affairs, BOIP, Court of Appeal in Paris; INPI, lifford Chance Paris, the World Intellectual Property Office (WIPO) and the World Trade Organisation (WTO).
The meetings addressed issues pertinent to the ongoing revision of the trademark law and IP-related questions on procedure law: The European experts related their experience and made suggestions to the LAC, answering key questions relevant to the drafting work.
The study tour focused on a number of questions related to the legislative drafting work for the Trademark Law and the Civil Procedure Law revision. This included:
- Whether to protect non-traditional trademarks (e.g. singular colour trademark, voice trademark, smells trademark, etc.) in a registered way? Since when can non-traditional trademarks be protected through registration in Europe? The current registration situation.
- Whether to protect a non-registered trademark that is influential by having been used but not constituting a well-known trademark; If protected, whether the protection scope for such non-registered trademark is the same as that of a registered trademark.
- How to cope with the conflict between the application of a trademark registration and prior rights like design, business name, etc.
- Subject, grounds and procedure for an opposition against a trademark application.
- The current system regarding invalidity of a registered trademark; time limit for addressing the invalidity; to which institutions can the invalidity request be addressed to; legal consequences of the invalidity; impact of trademark invalidity on previously signed trademark license agreements and previous court decisions regarding infringements of the invalid trademark.
- Current system regarding trademark revocation/cancellation; subject, grounds and institution accepting the trademark revocation/cancellation request; legal consequences of trademark revocation/cancellation.
- Categories of trademark infringement behaviours; calculation method for civil compensation and criminal penalties regarding trademark infringements; jurisdiction over trademark infringement cases.
- The kinds of legal provisions that exist with regard to judicial forensic institutions involved in IPR cases; the existence of a system of court experts or expert witnesses when hearing IPR cases.
- Regarding judicial IPR infringement proceedings, the impact/consequence for the proceedings if one party or both of them apply for the invalidation of the IP right to the relevant authority during the court proceeding; special legal provisions governing this situation.
- Remedy approach and procedure when a party is not satisfied with the decision made by the IP administration authority: the legal provisions for such procedures; follow-up procedures for court rulings against decisions made by the IP administration authority.
- Special legal provisions on the distribution of burden of proof in IPR cases; how the protection period for IPRs and the period for limitation of actions against infringement is regulated.
LAC is the working body of the Standing Committee of the National People’s Congress (NPC) responsible for legislative and other legal affairs, particularly drafting of fundamental laws and amendment bills including IP laws.
This forms part of IPR2’s broader co-operation with LAO and LAC on the revision of the Trademark Law. The Chinese government is currently revising the Trademark Law in line with the objectives of the National IP Strategy (released in June 2008) and to address the dramatic growth in domestic and international trademark applications and increasing infringement. By 2020, China plans to reach an internationally competitive level of trademark registration procedure, use, protection and management. LAC is now drafting the revised legislation, following initial preparation by the State Administration of Industry and Commerce (SAIC) and review by the Legislative Affairs Office (LAO).
Legislative Affairs Commission (LAC) of the Standing Committee of the National People’s Congress (NPC)
For more information on trademark and civil procedure legislation, contact Mr Andreas Obst
For general information on IPR2, contact Ms Tamryn Barker
[IPR2 ref: CC1.AW3.002]