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Tighten measures from Beijing IP Court
According to recent practice from the Beijing IP Court it seems that some additional precautions and information regarding the capacity of the individuals signing on behalf of foreign companies are being requested to admit new cases.
These new measures seem to have been adopted by the Beijing IP Court with no further public announcement and are probably the result of an internal administrative policy change.
Thus, when a foreign company wants to appeal a decision from the Trademark Review and Adjudication Board (TRAB) or from an Administrative Litigation Court before Beijing IP Court it must submit the following documents together with its corresponding translations into Chinese language:
A notarized and legalized Power of Attorney;
A notarized and legalized executed Legal Representative Statement;
A notarized and legalized certificate of good standing or a notarized and legalized company incorporation certificate;
Besides, if the Countries belong to one of the following situations, no further documents are needed to prove the power of the signatory.
If the Country such as China recognizes the effectiveness of the official seal of the companies and the companies official seals are stamped on the documents, then no other documents are needed.
If the law clearly provides that the directors have the power to sign such documents on behalf of the companies and this fact also has been recognized by the Beijing IP Court, then proving the signatory is a director is enough. For example, for the company belong to England, proving the signatory is a director is enough.
Up to now, it was an accepted practice to have a Director of the Company to sign such documents. However, it seems that such practice has changed, and more formal requirements are being requested in order to get the appeal filed successfully.
More specifically the Beijing IP Court is now requesting the foreign appellant to provide legalized evidences to prove that the individual person signing the documents on behalf of the company, and therefore binding the company to such actions, is indeed duly entitled to represent the corporation.
That fact may be proved by means of the company bylaws or perhaps it might be necessary to provide relevant national laws and statutes depending on the case. As mentioned, the point is to show the signatory's power and capacity to sign the documents.
It is of high relevancy to note that the Beijing IP Court has exclusive jurisdiction over appeals concerning rejection and invalidation of trademarks in China once all the administrative steps have been fulfilled.
Thus, meeting these new requirements is essential if you want to keep defending your intellectual property rights and interest in Court.
In this regard, the main setbacks these new measures present will be focused on two points:
Timing
A trademark appeal petition (or pre-registration procedure) must be filed before Beijing IP Court within 30 days after receiving the unfavorable decision we want to appeal. Once the appeal petition is filed we will then have a three months period from the petition filing date to submit:
the original notarized and legalized POA and the relevant translations;
the original notarized and legalized certificate of identity of legal representative and the relevant translations;
the original notarized and legalized company certificate of the client and the relevant translations.
As China is not part of The Hague convention all notarize foreign document must go through the traditional legalization chain which can take a long time.
As a result, being prepared what we are going to encounter is essential not to miss the deadlines.
Evidences
In some cases, it might be hard for the companies to find express evidences of what we need to prove. For instance, there is not always express board decisions or bylaws directly addressing the power of the chairman or directors of the board to sign Power of attorneys on behalf of the company.
For all those reasons, it is advisable for the companies to take preliminary measures in order to ensure they will be able to provide all the documents on time.
This can be done by preparing them in advanced or using specific Power of Attorneys granted to members of their corporations to act on behalf of the companies for these sorts of proceedings.
HFG Law&Intellectual Property
