Most trademark administrative cases are ended after gone through first instance, second instance and retrial. However, actually, if the applicant refuses to accept the review of retrial, there are still follow-up relief channels, that is, administrative supervision can be brought to the procuratorial body against the review of retrial. 

Article 209 of Civil Procedure Law of the People’s Republic of China, with any of following circumstances, the party concerned may apply to the People’s Procuratorate for procuratorial suggestions or protest: 

(1) The people’s court rejects the retrial application

(2) The people’s court fails to make a ruling on the retrial application within the time limit

(3) The retrial judgement or ruling is obviously wrong

The people’s procuratorate shall review the application within three months, and decide to make or not to make decisions in terms of procuratorial suggestion or protest. The parties concerned should not apply for the people’s procuratorate for procuratorial suggestion or pretest again. 

Article 416 of the Interpretation to the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China (2015), local people’s procuratorates at all levels file procuratorial suggestions for retrial to the people’s court at the same level for the effective judgement or ruling based on the application of the party concerned, those that meet the conditions below shall be accepted: 

(1) the procuratorial proposal for the retrial and application of the party concerned in the original trial, as well as relevant evidential materials have been submitted. 

(2) The object of the proposed retrial can be conducted the judgement or ruling of the retrial in accordance with the Civil Procedure Law and the interpretation. 

(3) The procuratorial suggestions for the retrial indicate that the judgement or ruling falls under the circumstances specified in Article 208-2 of the Civil Procedure Law. 

(4) Complying with the conditions prescribed in Article 209.1.1 and 209.1.2 of the Civil Procedure Law.

(5) The procuratorial proposal is discussed and decided by the procuratorial committee of the People’s Procuratorate. 

If it does not comply with the provisions of the preceding paragraph, the people's court may suggest that the people's procuratorate make corrections or withdraw; if it does not make corrections or withdraw, it shall notify the people's procuratorate by letter of rejection.

Article 19 of Administrative Litigation Rules of the People’s Procuratorate (2021 Version), any of following circumstances, the party concerned may apply to the People’s Procuratorate for the supervision, 

(1) The People’s court rejects the retrial application for the effective judgement, rulings and mediation or fails to make a ruling on the retrial application within time limit. 

(2) The retrial judgement or ruling is indeed wrong.

(3) The judges are considered to committee illegal acts during the trial procedure

(4) It is believed that there are illegal circumstances in the enforcement activities of the people’s court. 

As per the above-mentioned legal provisions, the applicant may file administrative supervision with the procuratorial body, if the applicant does not accept the ruling on the application for the review of the retrial. 

Recently, we have acted for one of our clients to file a suit against China National Intellectual Property Administration in the case of administrative dispute of review of the trademark rejection, the application for review has been rejected in the retrial procedure. For this situation, as per the legal articles above-mentioned, we advised the client to apply for administrative supervision with the procuratorial body, furthermore, try to apply for the administrative supervision to realize the review by the retrial procedure which is launched by the Supreme Court. 

Case’s preliminary procedure and examination status

During the first instance, the disputed trademark which was applied for registering on goods ‘clothing; shoes’ was similar to the cited trademark 2 on the similar goods. 

During the second instance, cited trademark 2 is considered to be a prior right obstacle to , the registration of the disputed trademark because cited trademark 2 has not been cancelled the registration on partial goods. As a result, the disputed trademark constituted similarity with the cited trademark 2 in terms of similar goods, ‘clothing; shoes’.

In the course of application for retrial and examination, the cited trademark 2 has been cancelled the registration on goods ‘Clothing; Hat; Socks; Gloves [Clothing]; Scarf; Belt; Wedding dress’, moreover, China National Intellectual Property Administration made a decision of revoking the review, this decision has come into effect. However, the Supreme Court voluntarily broke the limitation of similar groups, identified that the goods ‘Clothing’ and the goods ‘Shoes’ constituted similarity, and then, recognized that the disputed trademark and cited trademark 2 constituted similarity in terms of similar goods, therefore, the applicant’s retrial application has been rejected. 

For this case, we compared second instance’s judgments made by Beijing Higher People’s Court in 2019 and 2020. Obviously, for the review cases rejected by Beijing Higher People’s Court and Supreme Court, they have different views on whether goods in non-similar groups under Class 25 constitute similarity. The views in Beijing Higher People’s court’s cases are in full compliance with the guide that indicated by the Guidelines for Reviewing Trademark Authorization and Confirmation Administrative Cases, that is, ‘in the administrative case of trademark rejection review, the Classification Table of Similar Goods and Service at the time of hearing the case shall generally serve as the basis of identifying similar goods or services.’ (Article 15.13). Thus, we advised the client to file administrative supervision against the judgement of second instance, then, Beijing Higher People’s Court launched the retrial, in order to get the final decision in favor of the client from the procedure and entity. Currently, the case has been accepted by Beijing Municipal People’s Procuratorate, the case is under trail. 

Regarding the Jurisdiction of the case

Article 28 of Rules of the People’s Procuratorates for Administrative Litigation Supervision (2021 Version), ‘where a party applies to a people’s procuratorate for supervision over effective administrative judgment, ruling and mediation statement, it shall be accepted by the procuratorial department in charge of complaints and appeals of the people’s procuratorate at the same level where the people’s court is located that made effective judgement, ruling and medication statement. 

Although intellectual property cases are under the jurisdiction of the 4th Branch of Beijing People’s Procuratorate, the effective judgement of the second instance was made by Beijing Higher People’s Court. Therefore, as per the principle of supervision at the same level, this case should be under the jurisdiction of Beijing People’s Procuratorate. 

Conclusion

In judicial practice, recently, there have been many cases in which the Supreme Court and Beijing Higher People’s Court have made judgements against the plaintiff by the principle of not applicable to the change of situation prior to the notice of revocation of the cited trademark has been published, because the court held that the status of the cited trademark is not a basis for the case in trail to be suspended. In the past, we generally advised client to proceed retrial, however, as the Procuratorate pays more attention to the supervision cases of intellectual property right administrative litigation, filing administrative supervision becomes another remedy besides the retrial, the applicant may choose remedy ways according to the specific situation.