An interesting interposal may be quite illustrative of the above 5: the author of this article was doing proof-reading of the English translation of an analytical comment of the Supreme People’s Court opinion when it came to his notice that the translator, a university English professor , messed up between 散利痛 and 散列通 in more than 30 places. It is hard to imagine any “clear” distinction between the two marks when even a well educated professor couldn’t make it out.

Consciously or unconsciously, the Board failed to notice such glaring facts that both 散利痛 and 散列通 are transliterations of SARIDON and the two are so close not only in pronunciation but also on appearance. Overlooking such plain facts, the Board, instead, elaborated an analytical study of the possible (or impossible) meaning of the meaningless combination of the Chinese characters, thus reaching a conclusion that there was “clear distinction between the marks in connotation and in function.” The Trademark Review & Adjudication Board is equipped with broad discretion in the finding of facts, and it is not constrained by anything like the U.S. jury standards; further, its authority on such “professional” issues as similarity of trademarks is usually given broad deference in the judicial proceedings by courts. In this case, the Board threw out the substantive issues and focused on the “connotation and function” of the marks, which is astoundingly unprofessional: functional marks are not eligible for registration. This should be a subject for study among amateurs. In recent years, to “effectively” crunch the backlog, the Board recruited many new hands who may not become competent within a short time, which is understandably one of the reasons for overlooking such simple facts in this case. Another reason for the Board to shy away is perhaps the policy consideration (or even out-of court fixing) in light of such big name as Southwestern Pharmaceuticals.

By now an erroneous conclusion has been formed on the objective facts of similarity between the 散利痛 and 散列通 marks.

2. Attitudes of the court in first and second instances

Obviously, in the wake of the Board decision, the court by-passed the similarity issues in the reviewing process by concentrating on the “good faith” problem, and thereby directed for cancellation of Southwestern’s registration for the 散列通 mark.

3. Supreme People’s Court reexamination

(a) Finality of administrative process and retrospectivity of applicable law Southwestern Pharmaceuticals argued the timing issue as to which version of the Trademark Law controls, i.e., the Board made its decision prior to the 2001 amendment of the Trademark Law allowing judicial review, and because of the ex post facto law doctrine, it is not reviewable in court.

The Court concluded that , in accordance with its own promulgations, judicial review is available for certain regulatory decisions made before the amendment. This is a correct conclusion, but reached from a wrong angle. Seeking solution on a dispute in court is a fundamental right of the people, a right constitutionally guaranteed in all republican forms of government. Arguable as it is as to a litigant’s standing in court over the acts of government or its employees, the principle has always been clear: no government power should go unchecked; if the people’s rights to peacefully seek solutions in court are suppressed, they will do otherwise.

In the United States, for example, the Constitution does not positively grant the power to the judicial department to review acts of the legislative department; yet the 1803 Marbury v. Madison case, by textual and historical analysis, decided that the judicial review power over legislative and administrative acts was beyond question. In this country, for a long time, it was widely held that an administrative decision was “final,” causing mistaken belief that it was the last word. This is a misinterpretation and misunderstanding of the word “final.” The doctrine of “finality,” like other doctrines such as “ripeness” or “exhaustion,” is merely a condition to judicial review. An administrative decision is “final” only to the extent it concludes within the administrative process before it can be reviewable in court; otherwise, premature judicial interference would cause waste of judicial resources for abridging the more effective administrative process. Having been long suppressed in this country, judicial review was positively made available in the 2001 Trademark Law amendment upon China’s accession to the WTO. This is by no means a new “l(fā)aw,” but a reaffirmance of the existing universal right. Moreover, the expost facto law constraint applies more to powers than to privileges. For these reasons, retrospectivity should be a nonissue.

(b) Genericness

The Court was misguided in its Opinion towards the issue of trademark genericness. What was strange in the Opinion was that it introduces a new theory on deciding genericness as to (pharmaceutical) trademarks, drawing a line between “generic de jure,” – statutorily generic, and “generic de facto,” – generic from customary and popular use. Such a theory is unfounded in law, and unsupported by logic. Furthermore, the Court laboriously explained that during the period of genericness de jure, 散利痛 would not be able to block the registration of 散列通, and yet, 散利痛 itself would become eligible for registration again after the statutory genericness was lifted when it did not become generic in fact or in custom. This has stretched the concept of genericness beyond recognition. Genericness, in the trademark law sense, could not, and would not, be predefined, let alone the distinction between definitions “in law” and “in custom.” This reminds us of the well-known trademark scandals in the past few years when, by taking advantage of the loopholes of “relevant public,” quite a number of literally unknown trademarks were judicially certified as “well-known.” One U.S. court rejected such contention as “relevant public” which is instrumental to glorifying a literally unknown mark, by requesting that to be well-known, a mark be well acquainted to a significant portion of the public. The generic name of a product cannot be a matter of law; it must be a fact as simple as this: a name generally accepted, and popularly used by the public. If a name has become generic as such, no law can take it back, and vice versa.