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Hanlaoda vs. Hanlaosan-
Court Tried First Appeal Case against TRAB Decision
On 26th April 2002, the No. 1 Intermediate People's Court in Beijing held
trial on a trademark appeal case against a Trademark Review and Adjudication
Board (TRAB) decision, the first of this kind since the amended Trademark
Law came into effect on 1st December 2001.
The plaintiff, Hanlaoda Braised Chicken Shop ("Hanlaoda" or
"º«ÀÏ´ó" in Chinese), in Weifang City, Shangdong Province, believed
that the trademark "Hanlaoda & design", then registered
in class 29 for poultry, sausages, hams, processed meat under registration
No. 132 1653 in the name of Hanlaosan Braised Chicken Co., Ltd. ("Hanlaosan"
or "º«ÀÏÈý" in Chinese), also in Weifang city, infringed its rights
in the trade name "Hanlaoda" and filed a cancellation action
with the TRAB to cancel the said registration. On November 30, 2001, the
TRAB made a decision to sustain this registration, on the ground that
the filing date of the trademark registration was prior to the date on
which the plaintiff began to use "Hanlaoda" as a trade name.
On December 7, 2001, the TRAB's decision was served to the plaintiff.Before
the trademark law was revised, decisions made by the TRAB were final and
not subject to appeal. As of December 1, 2001, when the revised Trademark
Law came into force, parties concerned are entitled to appeal the TRAB
decisions with the People's Court. According to the new law, the plaintiff
brought up the court action and requested cancellation of the TRAB decision.
In the trial, the TRAB defended itself by arguing that the decision was
made on November 30, 2001, when the revised Trademark Law had not come
into force, and that according to the old law, the decision should be
final and the court should not have jurisdiction over the case. The court,
having adjourned and discussed, held that the date that the decision became
effective should be the date it was served, i.e. 7th December, 2001, and
that the new law should apply and the court should have jurisdiction over
the case. The court will hold further hearings in due course.
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