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CIVIL AND CRIMINAL COURTS CANNOT EXAMINE TRADEMARK AND PATENT VALIDITY
If the outcome of civil litigation or a criminal prosecution depends on whether an administra-tive action was invalid or illegal, the issue must be settled through administrative dispute resolu-tion procedures. If the administrative proceed-ings have already commenced, the civil or criminal court must adjourn its own trial pro-ceedings until the outcome of the administrative proceedings has become irrevocable. The above is provided by Article 12 Paragraphs 1 and 2 of the Code of Administrative Procedure.
In a 2001 civil judgment, the Supreme Court further stated that whenever the judgment in civil litigation depends on a determination as to the validity or legality of an administrative action, then once the administrative court has deter-mined the underlying facts and delivered its judgment, and the judgment has become irrevo-cable, the civil court must accept the facts as determined in the administrative court's judg-ment as the basis for its own determination of facts when adjudicating the civil case. This is to prevent different courts delivering opposing judgments. If the administrative proceedings have not yet commenced, then the presiding judge of the civil court should inform the parties that the issue of whether the administrative ac-tion concerned was invalid or illegal must first be determined through administrative proceedings. If the presiding judge fails in this duty of expla-nation, and instead makes his a determination of the underlying facts, and renders a judgment, this constitutes a major procedural flaw, and the judgment is unlawful.
It can be inferred from the above Supreme Court ruling that if the validity of a trademark or patent is disputed in the course of civil or criminal proceedings for infringement, the issue of valid-ity should first be determined through adminis-trative proceedings, and the civil and criminal courts have no power to make an independent a determination.