What authority governs the protections of domain names?
Disputes over domain names are handled by the dispute resolution service providers as accredited by the China Internet Network Information Centre.
What bodies of law govern the handling of trademark infringement?
The Trademark Office of the State Administration of Industry and Commerce (SAIC) is responsible for the registration and administration of trademarks in China.
How does the SAIC handle trademark infringement?
This depends on the administrative level that the complainant is applying to. The SAIC at county level will directly accept and examine complaints of trademark infringement and take action via a raid of the infringing party. The SAIC at municipal level is responsible for infringements of greater value. They will stop and impose fines on the offending party.
What can I do if I find that my trademark has been infringed upon?
Complainants have the option of taking administrative action against infringers with the SAIC or to take civil or criminal action with the People's Court of China.
How do I initiate an action with the SAIC?
You need to obtain evidence and information that the infringing party has indeed infringed your trademark. It is advisable to keep a notary of the process of obtaining infringing goods.
Is there a minimum threshold of value to initiate action from the SAIC?
No, there is no minimum threshold of value in order to file a complaint with the SAIC.
What must I include in the complaint if I am a domestic complainant?
You must include: a certificate of incorporation (for a business) or a copy of a valid passport or ID (for an individual). You must provide a copy of your trademark registration to prove that you are the rightful owner of the trademark and, if an attorney is involved, a signed Power of Attorney is required.
What must I include in the complaint if I am a foreign complainant?
All the aforementioned required documents of a domestic applicant must be included but should be notarized and legalized with a Chinese translation.
How long does administrative action with the SAIC take?
Given that the case is straightforward, and all the necessary documentation has been provided, the SAIC will take approximately 1 to 3 months to investigate and resolve the case.
Other than trademark cases, what other matters does the SAIC deal with?
The SAIC (State Administration for Industry and Commerce) handles non-standard use of registered trademarks, unfair competition (anti-counterfeiting, infringement of trade secrets, commercial disparagement, etc.), violation of advertisement law and unlicensed business activities.
How long does civil and criminal action with the People’s Court take?
Given that there are no special circumstances, it takes approximately 6-12 months to resolve a civil action and approximately 3-6 months to resolve a criminal action.
What remedies are available from civil action?
A successful action may result in the complainant being awarded with injunctions on the infringing party and compensation for damages. An account of profits may also be awarded.
What is the statute of limitations for filing an infringement action?
The statute of limitations is two years, starting from when the trademark registrant or interested party discovered or should have discovered the infringement.
Are there restrictions to filing a criminal action?
Filing for a criminal trademark infringement action is reserved only for the most serious of offences or high profile cases.
Is there a minimum threshold of value to file a civil action?
Yes, there is a minimum threshold of value of damages that must be incurred from the infringement before you can file a civil action against the opposing party. Small claims will try cases involving monetary claims of RMB 15,000 (US$ 2,500) or less.
What is valid use evidence/evidence of use?
Examples of valid evidence of use include any evidence that gives the time and date of use of the product or service as well as any indicator that it is being used in Mainland China along with any other relevant information.
Do unregistered but well-known trademarks have any rights and protections in China?
Yes, the owner of a well-known, unregistered mark may request legal prosecution when another party uses or applies to register a trademark which is a reproduction, imitation or translation of the mark only in respect to identical or similar goods or services.
When collecting evidence, can I submit electronic evidence?
Chinese courts traditionally favor paper evidence over anything else. However, electronic evidence is becoming increasingly used in Chinese intellectual property litigation.
What practices surround electronic evidence?
Electronic evidence that arises organically during the normal course of business is better than those formed for the purpose of litigation.
*Unless the offending party disputes the presented evidence, the evidence can be admitted directly. Otherwise, the court will ask the complainant to provide further evidence to support their claim.
What are some examples of common electronic evidence?
Examples of electronic evidence include: emails, digital photos, webpages, blog entries, and BBS records.
How is electronic evidence verified?
The reliability of electronic evidence is determined by five factors: the formation process, the storage process, the collection process, the transmission process and the completeness of the electronic evidence.
Is trademark registration the only form of IP protection for trademarks in China?
No, trademarks can also be protected under copyright and design patent rights, in line with the relevant laws and regulations.
What authority protects my trademark online in China?
Online, trademarks are mainly governed by the Trademark Office and the Trademark Review and Adjudication Board.
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