Ling Zongliang

Abstract: The administrative behavior of determination of trademark rights is in nature an administrative adjudication behavior of Trademark Office or Trademark Review and Adjudication Board against equal subjects over disputes of the effect or ownership of trademark rights. The existing system design solving administrative disputes of determination of trademark rights is restricted by the shortage of classifying of administrative litigation. The judicial review on the above-mentioned administrative adjudication behavior according to the lawsuit type of cancellation lawsuit fails to pay full attention to the specificity that the dispute of determination of trademark rights is an administrative dispute in the form but actually a civil dispute, causing wrong roles of the parties in administrative lawsuit and insufficient obtaining of the real appeal of the plaintiff for filing the administrative lawsuit. Thus, the administrative dispute of determination of trademark rights can not be solved substantially, and the procedure is too long, wasting precious administrative resources and judicial resources. Therefore, in judicial practice, some innovation and reformation are made to the judgment mode. However, both the judgment mode of direct declaration of the effect of trademark rights and the judgment mode of determining Trademark Review and Adjudication Board to remake the contents of specific administrative behavior have the problems of whether unable to effectively balance the administrative power and judicial power or unable to completely solve the circulate lawsuit. In comparison, the judgment mode of not requiring the Trademark Review and Adjudication Board to remake specific administrative behavior when giving judgment to require canceling the administrative judgment of maintaining the effectiveness of trademark made by Trademark Review and Adjudication Board, but judging the trademark owner to cancel or transfer the trademark under dispute within a specified period, does not prejudice the administrative power of Trademark Office or Trademark Review and Adjudication Board in determining trademark rights, and can avoid the generation of subsequent circulate lawsuit. It is an effective judgment mode to substantially solve the administrative dispute of authorization and determination of property rights. This not only conforms to the specialty of the dispute of determination of trademark rights, but also gives full play to the judicial efficiency of property right tri-trial in substantially solving disputes.