HongFangLaw ~ Chinese IP Law Updates ~ n’ 61
20 July 2018
A View on the Statute of Limitations Applied in Trademark Disputes in the Era of Post-General Provisions of the Civil Law
Co-authors:Kevin Xu, Karen Hao, Shirley Lin
The General Provisions of the Civil Law of the People’s Republic of China (“General Provisions”) was passed by the National People’s Congress and published on March 15, 2017, set to become effective as of October 1, 2017. One of the most controversial elements of the new provision on the statute of limitations for civil litigation is Article 188: “An action instituted in a people’s court for protection of civil rights is prescribed by three years, except as otherwise prescribed by any law.” Since new laws have precedence over old ones at the same level, the two-year period for general civil cases set forth in the old PRC General Principles of the Civil Law (“General Principles”) was immediately adjusted to this change.
However, as statutory provisions have not yet followed up on how to apply the new statute of limitations in specific disputes and how it accommodates other effective laws and regulations, opinions are split on certain issues concerned in practice. This article is an attempt to illustrate how the law applies specifically in cases of trademark infringement.
Despite a major procedural issue in trademark lawsuits, no statute of limitations has been provided in the Trademark Law, neither in the 2001 enactment nor the amended version in 2014. For the time being, reference can only be drawn from the Interpretation of the Supreme People’s Courton Certain Issues Concerning the Application of Law in the Trial of Civil Cases Involving Trademark Disputes (“SPC Interpretation on Trademark Disputes”).
The 2002 judicial interpretation prescribes in Article 18 that “the statute of limitations for bringing a suit for the infringement of a registered trademark is two years”, giving light to the issue after the Trademark Law entered into effect in 2001. With the absence of a new provision on how to apply the statute of limitations in trademark disputes in light of the new General Provisions, which standard should we follow as the new law and the old interpretation clash with each other?
Academics propose two conflicting approaches. Some give priority to the new law and thus advocate the three-year time limit, whereas others value special laws over general provisions and sticking to the custom. Before making a choice, we deem it necessary to answer the above question by giving literal explanations of the provisions concerned in the General Provisions and the SPC Interpretation on Trademark Disputes.
As mentioned above, the statute of limitations is prescribed as being three years in the General Provisions, followed by an exception when it is “otherwise prescribed by any law”. We will focus exactly on this exceptional situation.
There is no doubt that any statute of limitations laid down in the Trademark Law will be applied in lawsuits concerned, regarding the legislation’s statutory status in China. However, such provision is given not in the Trademark Law but rather in the aforementioned judicial interpretation by the SPC. We must, therefore, try to find an answer to whether judicial interpretations are treated as equal to laws and whether they can be certainly applied over statutory provisions.
Pursuant to the Legislation Law in China, legal interpretations have legal effects the same as legislation. The right to enact such interpretations is vested in the Standing Committee of the National People’s Congress. As for “judicial interpretations”, it is provided that “interpretations on law application by the Supreme People’s Court and the Supreme People’s Procuratorate should be made based on the laws concerning the relevant trial and prosecution, and should be in line with the goals, principles, and intentions for the legislation”. It is revealing that “judicial interpretations” by the SPC carry no effects equal to those of “laws”.
Coming back to the issue surrounding trademark suits, the statute of limitations of two years is prescribed by the SPC in the form of a “judicial interpretation”. It can, therefore, be concluded that the period should, in fact, be extended to three years pursuant to the new General Provisions as the law is of a higher level and thus takes precedence.
Furthermore, when looking into the general provision of the SPC Interpretation on Trademark Disputes, we can see that the interpretation has been made to “correctly try the cases of trademark disputes pursuant to the General Principles of the Civil Law of the People’s Republic of China, the Contract Law of the People’s Republic of China, the Trademark Law of the People’s Republic of China, and the Civil Procedure Law of the People’s Republic of China, etc.”. As one of the cornerstones of the interpretation, the General Principles of the Civil Law provides the former with the 2-year statute of limitations in question. In light of the enactment of the new General Provisions, the 3-year time limit sets in, evoking adjustment in the General Principles of the Civil Law. The shift, in turn, affects the trial of trademark disputes, putting the new statute of limitations in place.
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