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Trademark protection

Article 52 of the “Trademark Law of the People’s Republic of China” stipulates that the followings acts should be an infringement of the exclusive right to use a registered trademark:

1.  To use a trademark that is identical with or similar to a registered trademark in respect of the identical or similar goods without the authorization from the trademark registrant;

2.  To sell goods that he knows bear a counterfeited registered trademark;

3.  To counterfeit, or to make, without authorization, representations of a registered trademark of another person, or to sell such representations of a registered trademark as were counterfeited, or made without authorization;

4.  To replace, without the consent of the trademark registrant, its or his registered trademark and market again the good bearing the replaced trademark; or

5.  To cause, in other respects, prejudice to the exclusive right of another person to use a registered trademark.

Article 50 of the “Implementing Regulations under the Trademark Law of the People’s Republic of China” further stipulates:

Any of the following acts should be an act of infringement of the exclusive right to use a registered trademark as provided for in Article 52(5) of the Trademark Law:

(1) To use a design which is identical with or similar to the registered trademark of another person on the same or similar goods, as the designation or decoration of the goods, which mislead the public, or,

(2) To intentionally provide any other person with such facilities as of storage, transportation, postal service, and concealment in his infringement of the exclusive right of another person to use a registered trademark.

With reference to the aforesaid infringing acts, the infringee can seek for protection of his own exclusive right of trademark through the following procedures:

1.   Administrative Procedure: Where the exclusive right of a registered trademark has been infringed, any person may lodge a complaint or file a report on, the case of infringement to the administrative department of industry and commerce at or above county level, and the administrative department of industry and commerce should have the power to make the following decisions:

(1)  Order the infringer to stop the infringements immediately.

(2)  Confiscate and deface the infringement commodities and the special tools for producing the infringement commodities and counterfeited registered trademark identifications.

(3)  Where the infringement commodities and infringement trademarks cannot be divided, order and supervise the destruction of infringement items.

(4)  According to circumstances, an act of infringement of the exclusive right to use a registered trademark shall be subject to a fine of not exceeding three times of the amount of the illegal business turnover. Where it is impossible to calculate the amount of the illegal business turnover, the fine shall be no more than RMB 100,000 Yuan.

(5)  According to the request of the infringee, the administrative department of industry and commerce can commence mediation over the amount of compensation of the infringement.

2.   Civil Procedure: The infringee may file a civil litigation in Court and request the infringer to bear civil liability. The People’s Court commonly has the power to make the following civil verdicts: 

(1)  Cessation of the infringement

(2)  Elimination of any negative effects and restoration of the infringee’s prestige.

(3)  Compensation for any losses  

3.   Criminal Procedure: Articles 213, 214 and 215 of the “Criminal Law of The People’s Republic of China” stipulate that the following acts of trademark infringement, if any of which is of a serious nature, shall be punished with imprisonment or criminal detention of less than three years, with a fine, or a separately imposed fine; more cases of a more serious nature, with imprisonment of over three years and less than seven years, with fine:

(1) Using an identical trademark on the same merchandise without permission of its registered owner.

(2) Knowingly selling merchandise under a faked trademark with a relatively large sales volume

(3) Forging or manufacturing without authority or selling or manufacturing without authority other’s registered trademarks or identifications.

Filing a trade mark litigation

1. A trademark infringement case should be under the jurisdiction of the People’s Court in the place where the infringement was committed, in the place where the defendant resides or in the place where the consequence of the infringement took place;

2. Claimant in a trademark infringement case can be the trademark registrant or the licensee of a trademark license contract;

3. In trademark infringement case, the infringee can claim compensation according to his actual losses or request to claim the profit gained during the period of infringement by the infringer as compensation;

4. Prescription for instituting legal proceedings concerning the infringement of trademark right is two years, counted from the date on which the infringee or any interested party obtains or should have obtained knowledge of the infringing act.