Shenzhen Trademark Protection
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Deatils about How to Protect Your Trademark in Pearl River China
China trademark registration and protection is one of Tannet's intellectual property services. To protect your trademark in China, one needs to acquire some basic information about China trademark protection.
Acquire Trademark Rights in Pearl River China
1. What kinds of trademarks can be protected in Pearl River China?
Under the Trademark Law of the People’s Republic of China (hereafter called Chinese Trademark Law), the only condition by which you enjoy exclusive rights to use your trademarks is based on the fact that your trademarks have been registered with the Chinese Trademark Office. For example, in some common law countries, the user of a trademark can acquire the exclusive right to use the trademark by using the trademark in commerce.
2. What kinds of signs can be Chinese registered trademarks?
According to Chinese Trademark Law, any visual sign, if it can be used to distinguish the goods or service of one natural person, legal entity or any other organization from that of others, including any word, design, letters of an alphabet, numerals, three-dimensional symbol, combinations of colors, and their actual combination, may be filed for registration.So far, Chinese Trademark Law does not allow sound marks, smell marks or other kinds of marks to be registered and the Chinese Trademark Office still doesn’t accept these types of trademarks’ registration applications.
3. Application First Principle
This principle is, where two or more applicants apply for the registration of identical or similar trademarks for the same or similar goods, the Trademark Office will grant the trademark right to whichever application is filed first. Where applications are filed on the same day, the trademark right shall be granted to the earliest user, and the other applications shall be rejected and their trademarks shall not be published.
Enforcing your trademark rights through administrative authorities
1. Administration Protection Mechanism
China has adopted a so-called “Dual protection, Parallel Operation” mechanism, which means that both the courts and the administrative authorities are entitled to enforce the trademark law. This mechanism has proved to be very effective over the past 20 years owing to how it “fits” to China’s ever evolving national conditions. The administrative protection mechanism, non-judicial procedure, is that the trademark owner can claim a trademark infringement before the government authorities and seek remedies when its trademark rights are infringed. The relevant administration authorities will investigate and handle the complaint by confiscating the infringing goods or by offering other remedies, such as ordering the offender to cease infringement, and impose fines.
2. Administration Protection Authorities
2.1 The Administration for Industry and Commerce (AIC)
AICs are established at every level of Chinese central and local governments. For the Chinese central government, the State Council set up the State Administration for Industry and Commerce (SAIC). Basically, the SAIC’s duty is to make rules, policies and to guide the work of local AICs. The SAIC doesn’t handle infringement cases. Local AICs handle trademark infringement cases that take place in their own areas.
2.2 Chinese Customs
Chinese Customs conduct an important function in intellectual property protection like most countries’ customs organizations around the world. The General Administration of Chinese Customs has set up in its head office as the Section of Customs Protection for Intellectual Property Rights especially responsible for recording intellectual property rights in Customs and lending guidance to Customs departments nationwide in taking protective measures.
Protection of Trademark Right with Civil Law
With the amendment of the Trademark Law in 2001, the administrations for industry and commerce no longer have the authority and power to charge trademark infringers to compensate economic losses to the owners of registered trademarks. At present, an increasing number of registered trademark owners prefer to protect their exclusive right to the use of trademarks with civil procedures. We will make a brief account of the related matters in the following paragraphs.
1. Jurisdiction of trademark infringement litigations
1.1Court architecture and the “two-instance” judicial systeml in China mainland
In China mainland, a Supreme People’s Court is set up at the Central Government level. Higher People’s Courts are established at the provincial level in provinces, autonomous regions and municipalities directly under the Central Government. Intermediate People’s Courts are arranged for prefectures, autonomous prefectures leagues and cities of the prefecture level. Basic People’s Courts are founded for counties, autonomous counties, banners, districts and cities of county level.
1.2 Jurisdiction of trademark infringement litigation
a.Grade jurisdiction of trademark infringement litigation
Grade jurisdiction means to divide the work and authority amongst people’s courts at the higher and lower levels in the hearing of trademark infringement cases of first instance in accordance with certain standards. In other words, it is on the system of deciding which levels of people’s courts shall serve as courts of first instance.
b.Territorial Jurisdiction of Trademark Infringement Litigation
Civil litigations instituted for acts of infringing the exclusive right to the use of registered trademark shall be put under the jurisdiction of the people’s courts at the places where the infringement acts happen. People’s courts at the places where infringement commodities are stored up, or local Customs and administrations of industry and commerce seal up and detain infringement commodities according to the law shall also have the jurisdiction.
2. Preliminary injunction and evidence attachment before litigation
According to the stipulation of Article 57 and Article 58 of the Trademark Law, the “application to the People’s Court for ordering the stopping of an act before filing a lawsuit” means that the owner of a registered trademark or any interested party has evidence proving that another party is committing or will soon commit an act that infringes upon his exclusive right to the use of its registered trademark and that, unless it is promptly stopped, will cause irreparable harm to his legitimate rights and interests, he / she may, before filing a lawsuit, apply to the People’s Court to order the stopping of the act. The “evidence attachment before litigation”(preliminary evidence attachment) means that in order to put a stop to an infringement, the owner of a registered trademark or the interested party may, under conditions where evidence might be missing or become unobtainable in the future and prior to filing a lawsuit, apply to the People’s Court to attach and preserve the evidence.
3. Property attachment and evidence attachment in registered trademark infringement litigation
3.1 Property Preservation
According to stipulations of Article 92 and Article 94 of the Civil Procedure Law of the People’s Republic of China, in the cases where the execution of a judgment may become impossible or difficult because of the acts of either party or for other reasons, the People’s Court may, at the application of the other party, order the adoption of measures for property attachment. In the absence of such application, the People’s Court may by itself, when necessary, order the adoption of measures for property preservation. Property preservation shall be effected by sealing up, freezing or the use of other methods as prescribed by the law.
3.2 Evidence Preservation
The evidence attachment system is highly evaluated because it prevents any pieces of evidence from becoming missing or becoming unobtainable in the future and contributes to the acts of finding out facts from the case in an objective and veritable way in the lawsuit.
4. Hearing, ruling and execution of trademark infringement litigation
Normally, People’s Courts at and above the intermediate level set up special intellectual property judicial tribunals to try intellectual property cases, which naturally include trademark infringement cases. In some developed areas, i.e., Beijing, intermediate People’s Courts like Beijing No.1 Intermediate People’s Court and Beijing No.2 Intermediate People’s Court, have special judicial tribunals for the hearing of intellectual property cases, including trademark infringement cases.
Protection of Trademark Right with Criminal Law
In comparison with the means of administrative enforcement of law and civil procedures, the appeal to criminal procedure for the protection of the exclusive right to the use of a registered trademark is the channel with greatest force and most obvious effect.
Article 213 of the Criminal Code of the People’s Republic of China stipulates that “Where any person, without authorization of the owner of a registered trademark, uses a trademark which is identical with the registered trademark in respect of the same goods shall, if the circumstances are serious, be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined
1. Trademark right infringement crimes
1.1 Crime of counterfeiting registered trademarks
Article 213 of the Criminal Code of the People’s Republic of China provides that “Where any person, without authorization of the owner of a registered trademark, uses a trademark which is identical with the registered trademark in respect of the same goods shall, if the circumstances are serious, be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined; if the circumstances are especially serious, he / she shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.”
1.2 The crime of selling goods bearing a counterfeited registered trademark
Article 214 of the Criminal Code of the People’s Republic of China provides that, “Where any person knowingly sells goods bearing a counterfeited registered trademark shall, if the amount of sales is relatively large, be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only be fined; if the amount of sales is large, he / she shall be sentenced to a fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.”
1.3 Crime of falsifying, or making representations of another person’s registered trademarks without authorization, or selling such representations
Article 215 of the Criminal Code of the People’s Republic of China provides that “Where any person falsifies, or making representations of another person’s registered trademarks without authorization, or selling such representations shall, if the circumstances are serious, be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance and shall also, or shall only, be fined; if the circumstances are particularly serious, he / she shall be sentenced to a fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.”
2. Accomplice of trademark infringement
The Criminal Code of the People’s Republic of China makes stipulations of joint commission of a crime. For the purpose of effectively protecting intellectual property rights and severely cracking down upon criminal acts of intellectual property infringement including trademark and copyright, Article 16 of the Interpretation provides that one is an accomplice if he/she knowingly, or should have known, furnishes loans, funds, account number, invoice, certificate, license, or provides sites for production and management, or provides various conveniences of transportation and storage, or acts as an importing/exporting agent for someone who carries out the crime of trademark infringement. The stipulation is drawn mainly because that the crime of trademark infringement has shown the features of a family-based operation, big scale operations and well organized in many places. Many big-scale counterfeit trademark crimes have developed into a full-range chain production from raw material purchase, equipment procurement, capital support, transportation, warehousing, and marketing, with especially great harm.
3. The principle that criminal liability and civil liability don’t repulse each other
In addition to criminal liability, civil liability may be found out to the person committing the crime of infringing the exclusive right to the use of a registered trademark. The owner of a registered trademark may still demand for compensation for civil damages. In a similar manner, in cases with civil liability having been looked into, judicial authorities may go on to investigate the criminal liability if they constitute crimes. Civil liability shall not cover for criminal liability and vice versa.
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