As economic integration accelerates, trademark infringement has become a growing concern for businesses aiming to protect their intellectual property. China, with its thriving industrial sector and vast market, has implemented strict procedures for handling trademark infringement. This article outlines the key procedures for addressing trademark infringement in China and offers insight into the legal avenues available for safeguarding trademarks in this critical market.
Methods and Procedures for Handling Trademark Infringement in China
Chinese law provides three primary avenues for dealing with trademark infringement:
Administrative measures
Civil measures
Criminal measures
Each method comes with distinct characteristics and procedures depending on the nature of the infringement.
1.1 Administrative Measures
Administrative measures are a widely used approach to tackle trademark infringement in China due to their relatively low cost and efficiency. The General Administration of Market Supervision (AMR) and its local branches play a key role in enforcing these measures.
The process begins when the trademark owner submits a request to the local administrative agency, including evidence of the trademark infringement. The agency may then initiate an investigation, which can involve actions such as inspecting and copying relevant documents, or seizing products suspected of infringing on trademark rights. If the investigation confirms a violation, penalties such as fines or production bans may be imposed. Administrative measures typically take 3 to 6 months to resolve and cost between 20,000 to 50,000 Yuan.
1.2 Civil Measures
Civil measures, which involve filing a civil lawsuit, are commonly used to claim compensation for damages or to request emergency measures to prevent further harm. Although civil cases can be more time-consuming and expensive, court rulings are binding and can offer long-term protection against trademark infringement.
Trademark-related civil lawsuits in China usually take about 12 months to resolve. However, the court requires notarised evidence of the infringement for it to be admissible. In cases where evidence is lacking, the court may issue an Evidence Preservation Order (EPO), allowing the plaintiff to collect evidence from the defendant's facilities. The cost of an EPO ranges from 20,000 to 1,000,000 Yuan, depending on the case.
If sufficient evidence is available, the trademark owner can request an Asset Preservation Order (APO) to freeze the infringing party's assets, preventing further financial damage. As with EPOs, the plaintiff must provide a security fee to apply for an APO.
1.3 Criminal Measures
When trademark infringement escalates to a criminal level, as defined under Articles 213, 214, and 215 of China's Criminal Law, criminal penalties may be imposed. This method is more complex and resource-intensive.
There are three ways to initiate criminal proceedings for trademark infringement:
Filing a report with the Ministry of Public Security
Referral by an administrative agency if the damage exceeds the scope of administrative penalties
The trademark owner directly filing a criminal lawsuit (though this is less common due to the high burden of proof)
The Ministry of Public Security decides whether to pursue the case and, if approved, collects evidence before transferring it to the prosecution.
Key Considerations for Addressing Trademark Infringement in China
Trademark owners may choose to pursue both administrative and civil measures concurrently to maximise the chances of success. The court may also consider administrative rulings when making its decision.
In cases where the infringing trademark has been registered, the affected party can request the Trademark Dispute Resolution Board of the General Administration of Industry and Commerce to invalidate the registration. This request must be filed within one year of the infringing trademark's registration approval, as outlined in Article 27 of China's Trademark Law.
By understanding the procedures for handling trademark infringement in China, businesses can better protect their intellectual property and navigate the complexities of this vital market.
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