CHINA Law and Practice Contributed by: Chuanhong Long, Bin Zhang, Cuicui Liang and Lei Fu, CCPIT Patent and Trademark Law Office
right, etc. There is no explicit provision regarding dilu - tion. Regarding copyright, there is no independent action to cancel it. There is no expungement or re-examination proce - dure. 5.3 Ability to File an Opposition or Revocation/Cancellation Any person can file an opposition or revocation/can - cellation based on absolute grounds. Only a prior-right owner or an interested party can file an opposition or revocation/cancellation based on prior rights. A Chinese opponent can file the opposition or revoca - tion/cancellation either personally or through a trade mark agent registered with the CNIPA. A foreign oppo - nent must file opposition or revocation/cancellation through a trade mark agent. The official fee is CNY450 for filing an opposition, CNY675 for filing revocation/cancellation and CNY450 for filing cancellation. The attorney’s fee is usually cal - culated according to the complexity of the case, work - ing hours required, etc. 5.4 Opposition or Revocation/Cancellation Procedure After an opposition is filed, the CNIPA will forward the opposition grounds and evidence to the opposed party and give the opposed party a chance to respond within 30 days from receipt of the notification. The opposed party has an additional three-month period to supplement its evidence. There is no evidence- exchange procedure for opposition. Usually the CNI - PA will make a decision in about one year. The CNIPA will not forward the grounds and evidence filed by the opposed party to the opponent for counter arguments. Instead, the CNIPA will make a direct deci - sion on the opposition. Regarding revocation/cancellation, this differs from opposition in that there is an evidence-exchange procedure. Usually the CNIPA will make a decision in about one year.
The opposition and invalidation must be filed with the CNIPA. This can be filed against partial goods. 5.5 Legal Remedies Against the Decision of the Trade Mark Office After the decision on opposition is made, only the opposed party is allowed to file an appeal to the appeal board, whereas both parties are allowed to file litigation before the Beijing Intellectual Property Court if dissatisfied with the revocation/cancellation decision. Since this is an administrative procedure, no award is involved. 5.6 Amendment in Revocation/Cancellation Proceedings After the revocation/cancellation is filed, it can also be withdrawn any time before the decision is made. 5.7 Combining Revocation/Cancellation and Infringement Revocation/cancellation is examined case by case. For revocation of the same nature (the same appli - cation, same registrant of the disputed mark, same supporting evidence) that is filed at the same time, it is possible to request that the examiner examines the cases together. However, decisions are still made on a case-by-case basis. Revocation/cancellation and infringement are not heard together. The court for infringement has dis - cretion to determine whether the court will wait for the According to Article 44 of the Chinese Trademark Law, if a trade mark is registered fraudulently, the CNIPA can declare the registered trade mark invalid. Any applicant may request that the Trademark Review and Adjudication Board declare a registered trade mark invalid. Whether copyright registration was filed fraudulently will be reviewed by the CPCC or the court on a case- by-case basis. decision on revocation/cancellation. 5.8 Measures to Address Fraud
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