Legislation
The Trademark Law is enacted to improve the administration of trademarks, protect the exclusive right to use a trademark, and encourage producers and traders to guarantee the quality of their goods and services and maintain the reputation of their trademarks, with a view to protecting the interests of consumers, producers and traders and promoting the development of the socialist market economy.
Trademark Law & Implementing Regulations
Trademark Law: Adopted by the Standing Committee of the National People's Congress on August 23, 1982 and came into effect on March 1, 1983; amended for the first time on February 22, 1993; amended for the second time on October 27, 2001; amended for the third time on August 30, 2013; amended for the fourth time on April 23, 2019 and came into effect on November 1, 2019.
Implementing Regulations: Promulgated by the State Council on August 3, 2002; amended on April 29, 2014 and came into effect on May 1, 2014.
Rules and Measures
Measures for the Administration of Trademark Printing: promulgated by the former State Administration for Industry and Commerce on September 5, 1996, first revised on December 3, 1998, second revised on August 19, 2004, and third revised and implemented on October 23, 2020;
Measures for the Registration and Administration of Collective Trademarks and Certification Trademarks: promulgated by the former State Administration for Industry and Commerce on April 17, 2003, and effective from June 1, 2003
Rules for Determination and Protection of Well-known Trademarks: promulgated by the former State Administration for Industry and Commerce on July 3, 2014, and implemented on August 3, 2014;
Standards for Judging Trademark Infringement: promulgated and implemented by the National Intellectual Property Administration (“CNIPA”) on June 15, 2020;
Methods for Calculating Illegal Business Turnover in Trademark Infringement Cases: promulgated by the CNIPA and the State Administration for Market Regulation on October 14, 2024, and implemented on October 14, 2024..
Conventions
China became a member of the Convention Establishing the World Intellectual Property Organization on June 4, 1980, the Paris Convention for the Protection of Industrial Property on March 19, 1985, the Madrid Agreement Concerning the International Registration of Marks on October 4, 1989, the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks on August 9, 1994, the Protocol relating to the Madrid Agreement Concerning the International Registration of Marks on December 1, 1995 and the Marrakesh Agreement Establishing the World Trade Organization on December 11, 2001.
Trademark Administration
The Trademark Office of the China National Intellectual Property Administration (the CNIPA) is responsible for the registration and administration of trademarks in China, as well as the settlement of disputes relating to trademarks.
The CNIPA is responsible for conducting the operational guidance and policing of trademark enforcement, including formulating and guiding standards of trademark enforcement.
State Administration for Market Regulation is responsible for the organization and overall guidance of trademark enforcement.
Registered Trademark & Exclusive Right
There are four types of registered trademarks in China: trademarks for goods, service marks, collective marks and certification marks.
A registered trademark can be obtained after being approved and registered by the Trademark Office through the registration application procedures.
The rights holder of the registered mark, i.e. the registrant, have the exclusive rights to use the registered trademark as approved for the goods/services approved to register, which is protected by law.
Such exclusive rights begin on the date of approval and registration, and are valid for ten years. The trademark registration can be renewed before the expiration of the ten-year term, and each renewal registration is valid for ten years.
Trademark registration must be applied for Cigarettes, cigars, packaged tobacco, electronic cigarettes and other new tobacco products. Without the registered trademarks, such products shall not be produced or sold.
How to Obtain a Registered Trademark
To obtain a registration of a trademark on designated goods or services and seek a protection by law, the owner of the trademark should file a registration application before the Trademark Office. After examining the application, the Trademark Office will approve the registration if it is in compliance with relevant regulations.
For the details about the filing and prosecution of and examination on the applications, please see “Outline of CN Trademark System_Basics I_Registering a Trademark”.
Protection of Registered Trademarks
A trademark registrant enjoys the rights to use the registered trademark exclusively, that is, the exclusive rights for the registered trademark, which is protected by the Trademark Law.
In case of infringement on the exclusive rights, the trademark registrant or interested party may institute a lawsuit with the court, seeking judicial relief, or request the administrative authority to handle it, seeking administrative relief.
Anyone may complain or report to the administrative authority for any infringement upon the exclusive rights to a registered trademark.
This article will discuss the proceedings for administrative relief.
For seeking judicial relief, please refer to the Outline of CN Trademark System_Trademark Protection I Judicial Relief.
Scope of Exclusive Rights
The scope of the exclusive rights to a registered trademark is limited to the trademark approved for registration and the goods/services designated for use.
Infringement
Any of the following acts is infringement upon the exclusive rights to a registered trademark:
(1) Without the authorization of the trademark registrant, using a trademark identical to the registered trademark on the same goods/services;
(2) Without the authorization of the trademark registrant, using a trademark similar to the registered trademark on the same goods/services or using a trademark identical or similar to the registered trademark on similar goods/services, which is likely to cause confusion;
(3) Selling goods that infringe on the exclusive rights to a registered trademark;
(4) Counterfeiting or manufacturing signs of a registered trademark of another person without authorization, or selling such counterfeited or manufactured signs of the registered trademark;
(5) Without the authorization of the trademark registrant, replacing the registered trademark of the registrant and putting the goods with the replaced trademark back on the market;
(6) Deliberately providing facilitation for infringement conduct on the exclusive rights to another person's registered trademark and assisting others to infringe the exclusive rights to the trademark;
(7) Other conducts causing other damages to the exclusive rights to a registered trademark of another person.
Using prominently a trade name in an enterprise name, which is identical to another person's registered trademark, on the same goods or services, shall constitute trademark infringement as provided for in item (1) above;
Changing a registered trademark on one’s own or using a combination of multiple registered trademarks, which is identical to another person's registered trademark for the same goods or services, shall constitute trademark infringement as provided for in item (1) above.
Using a mark identical or similar to another person's registered trademark as a commodity name or commodity decoration on the same or similar goods, thereby misleading the public, shall constitute trademark infringement as provided for in item (2) above.
Using prominently a trade name in an enterprise name, which is similar to another person's registered trademark, on the same or similar goods or services, thereby being likely to cause confusion, shall constitute trademark infringement as provided for in item (2) above;
Changing a registered trademark on one’s own or using a combination of multiple registered trademarks, which is similar to another person's registered trademark for the same or similar goods or services, thereby its use being likely to cause confusion, shall constitute trademark infringement as provided for in item (2) above.
A registered trademark that does not specify a color may freely have a color attached to it. Where a color is attached for the purpose of free-riding and then the mark colored is similar to another person’s registered trademark for the same or similar goods or services, the use of which is likely to cause confusion, using such mark constitutes trademark infringement as provided for in item (2) above.
Where, in business activities under a processing contract under which the contractor is responsible for providing labor and materials, the contractor uses goods that infringe upon the exclusive rights to a registered trademark, it constitutes trademark infringement as provided for in item (3) above.
Where in sales an operator gives away goods that infringe upon the exclusive rights to a registered trademark, it shall constitute trademark infringement as provided for in item (3) above.
Providing storage, transportation, mailing, printing, concealment, business premises, online commodity trading platforms and others for the purpose of infringing on the exclusive rights to another person's trademark shall be determined as providing facilitation as provided for in item (6) above.
Where market organizers, exhibition organizers, counter lessors, e-commerce platform operators and other operators fail to perform their management duties and, when they know or should have known that the operators in the market, exhibitors, counter lessees and e-commerce operators on the platform are committing trademark infringement, fail to stop such trademark infringement, or where they are unaware but still fail to take necessary measures to stop the trademark infringement after being notified by the relevant trademark enforcement authorities or the trademark rights holder with effective administrative or judicial documents, their acts shall constitute trademark infringement as provided for in item (6) above.
Registering words identical or similar to another person's registered trademark as a domain name, and conducting e-commerce transactions of related goods or services through the domain name, thereby being likely to cause the relevant public to misunderstand, shall constitute trademark infringement as provided for in item (7) above.
Where using another person's registered trademark as a trade name in an enterprise name, thereby misleading the public, and then constituting unfair competition, the rights holder may seek relief under the Anti-Unfair Competition Law of the PRC.
Determination of Infringement
In preparation of administrative complaints/reports and responses, the rights holders or other relevant parties may refer to the following factors that the administrative authorities and the courts will consider in determining trademark infringement.
Trademark Use
To determine whether a trademark infringement has occurred, it is generally necessary to determine whether the suspected infringement constitutes the use of a trademark under the trademark law.
The use of a trademark refers to the act of using a trademark on goods, goods packaging or containers, and goods trading documents, or using a trademark in advertising, exhibitions, and other commercial activities to identify the source of goods.
The use of a trademark on goods packaging, containers and goods transaction documents may be in the manners including but not limited to following:
(1) Attaching trademarks to goods, goods packaging, containers, labels and the like by direct attachment, engraving, branding or weaving, or using trademarks on additional signs, product manuals, introduction manuals, price lists and others;
(2) Using trademarks on transaction documents related to the sale of goods, including goods sales contracts, invoices, bills, receipts, goods import and export inspection and quarantine certificates, customs declaration documents, etc.
The use of a trademark in service locations and service transaction documents may be in the manners including but not limited to following:
(1) Using trademarks directly in the service location, including brochures, staff uniforms, posters, menus, price lists, business cards, lottery tickets, office stationery, letterheads and other related items used to provide services;
(2) Using trademarks in documents related to the services, such as invoices, bills, receipts, remittance documents, service agreements, repair and maintenance certificates, etc.
The use of a trademark in advertising, exhibitions and other commercial activities may be in the manners including but not limited to following:
(1) Using trademarks in media such as radio, television, film, the Internet, or in publicly available publications, or on billboards, mailings or other advertising media;
(2) Using trademarks in exhibitions and fairs, including printed materials, booth photos, exhibition certificates and other materials using trademarks provided at exhibitions and fairs;
(3) Using trademarks on websites, instant messaging tools, social networking platforms, applications and other media;
(4) Using trademarks on information carriers such as QR codes;
(5) Using trademarks on store signs and store decorations.
In determining whether it is the use of a trademark, factors such as the user's subjective intention, usage approach, promotional approach, industry practice, and consumer perception should be comprehensively considered.
Without Authorization
Without authorization of a trademark registrant refers to not obtaining the authorization or exceeding the authorized scope of goods or services on the category, duration, quantity and the like.
Comparing Goods/Services
To determine whether they are the same goods or services, or similar goods or services, a comparison should be made between the goods or services approved for use by the registered trademark of the rights holder and the goods or services in the suspected infringement.
The Classification Table of Similar Goods and Services can be referred to in the determination on whether the suspected infringing goods or services and the goods or services approved for use by another person's registered trademarks constitute the same or similar goods or services.
For goods not covered by the Classification Table, the determination on whether they constitute the same or similar goods should be made based on the general understanding of the relevant public, and comprehensive consideration of the functions, uses, main raw materials, production departments, target consumers, sales channels and other factors of the goods.
For services not covered in the Classification Table, the determination on whether they constitute the same or similar services should be made based on the general understanding of the relevant public, and comprehensive consideration of the purpose, content, approach, provider, target consumers, location and other factors of the service.
Same Goods/Services
The same goods refers to the goods actually produced and sold by the suspected infringer have the same name as the goods approved for use with another person’s registered trademark, or the goods whose names are different but the goods are the same or basically the same in terms of function, use, main raw materials, production department, target consumers, sales channels, etc., and the relevant public generally believes that they are the same goods.
The same service refers to the service that actually provided by the suspected infringer has the same name as the service approved for use by another person's registered trademark, or the services whose names are different but the services are the same or basically the same in terms of purpose, content, approach, provider, target consumers, location, etc., and the relevant public generally believes that they are the same service.
Similar Goods/Services
The similar goods refer to the goods that share certain commonalities in terms of function, use, main raw materials, production department, target consumers, sales channel, etc.
The similar services refer to services that share certain commonalities in terms of the purpose, content, approach, provider, target consumers, location, etc.
Comparing Trademarks
To determine whether trademarks are identical or similar, a comparison should be made between the registered trademark of the right holder and the suspected infringing trademark.
To determine whether a trademark is identical or similar to a registered trademark, the general attention and cognitive ability of the relevant public should be taken as the standard, and the methods of isolation observation, overall comparison, and comparison of the main parts should be adopted.
Identical Trademarks
A trademark identical to the registered trademark refers to the fact that the suspected infringing trademark is exactly identical with another person's registered trademark, or that although there are differences, the visual effects or auditory perceptions of the sound trademarks are basically indistinguishable, making it difficult for the relevant public to differentiate between the marks.
The circumstances under which upon comparison the suspected infringing trademark can be determined to be identical to the registered trademark include:
(1) The word trademark has one of the following circumstances:
1) The word composition and arrangement order are identical to the registered trademark;
2) The font, uppercase and lowercase letters, and horizontal and vertical arrangement of the words are changed in comparison with those in the registered trademark, but there is basically no difference from the registered trademark;
3) The spacing among the word(s), letter(s), number(s), etc. is changed in comparison with that in the registered trademark, but there is basically no difference from the registered trademark;
4) The color is changed in comparison with that in the registered trademark, but the change does not affect the distinctive characteristics in comparison with that of the registered trademark;
5) Adding to the registered trademark only the generic name, graphics, model, etc. of the goods that lack distinctive characteristics, and such adding does not affect the manifestation of the distinctive characteristics of the registered trademark;
(2) The graphic trademark is basically indistinguishable in terms of composition elements, expression form, and the like in comparison with the registered trademark;
(3) The text and graphic combination trademark has identical text composition, graphic appearance and arrangement and combination thereof to that of the registered trademark, and it is basically indistinguishable in overall visual appearance from the registered trademark;
(4) The three-dimensional trademark has identical distinctive three-dimensional signs and distinctive two-dimensional elements to those of the registered trademark, or they are basically indistinguishable in comparison with the registered trademark;
(5) The color combination trademark has identical combined colors and arrangement thereof to those of the registered trademark, or they are basically indistinguishable in comparison with the registered trademark;
(6) The sound trademark has identical auditory perception and overall musical image to those of the registered trademark, or they are basically indistinguishable in comparison with the registered trademark;
(7) Other trademarks that are basically indistinguishable from the registered trademark in terms of visual effect or auditory perception.
Similar Trademarks
A trademark similar to a registered trademark refers to that, compared with another person's registered trademark, the suspected infringing trademark has any of the following circumstance:
The word trademark has similar glyph, pronunciation, and meaning to those of the registered trademark;
The graphic trademark has similar composition, coloring, and appearance to those of the registered trademark;
The text and graphic combination trademark has similar approach of the entire arrangement and combination and appearance to those of the registered trademark;
The three-dimensional trademark has similar shape and appearance of the three-dimensional sign to those of the registered trademark;
The color combination trademark has similar colors or combinations to those of the registered trademark; or
The sound trademark has similar auditory perception or overall musical image to those of the registered trademark.
Likelihood of Confusion
A trademark is likely to cause confusion under the following circumstances:
(1) The trademark is sufficient to make the relevant public believe that the goods or services at issue are produced or provided by the rights holder of the registered trademark;
(2) The trademark is sufficient to make the relevant public believe that the provider of the goods or services at issue has an investment, licensing, franchise or cooperation relationship with the rights holder of the registered trademark.
In determining whether a trademark is likely to cause confusion, the following factors and their interactions should be considered comprehensively:
(1) The similarity of the trademarks;
(2) The similarity of the goods or services;
(3) The distinctiveness and degree of fame of the registered trademark;
(4) The characteristics of the goods or services and the approach for the trademark use;
(5) The attention and recognition level of the relevant public;
(6) Other relevant factors.
Free-riding Intention
Where the registered trademark has a high degree of fame, the suspected infringer is in the same industry or an industry with a significant degree of correlation with that of the rights holder of the registered trademark, and there is no justifiable reason for the suspected infringer to use a mark that is identical or similar to the registered trademark, the suspected infringer shall be determined to have the intention of free-riding.
Fair Use
The exclusive rights holder of a registered trademark has no right to prohibit others’ legitimate use of the generic names, graphics, product models, or direct description of the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the goods, or the geographical name contained in the registered trademark.
The exclusive rights holder of a registered trademark has no right to prohibit others’ legitimate use of the shape resulted from the nature of the goods themselves, required for obtaining a technical effect, or giving substantial value to the goods, contained in the three-dimensional sign of the registered trademark.
Where, before the trademark registrant applied for trademark registration, another person has already used a trademark that is identical or similar to the registered trademark and has certain fame on the same or similar goods, the exclusive rights holder of the registered trademark has no right to prohibit the user from continuing to use the trademark within the original scope of use, but may require the user to add an appropriate distinguishing mark.
The trademark having “certain fame" refers to an unregistered trademark that have been used in China prior to others and is known to the relevant public within a certain range.
The determination of a trademark with certain fame should be comprehensively judged by considering factors such as the duration of use, sales volume, turnover, advertising and publicity of the trademark.
Where the user falls under any of the following circumstances, it shall not be deemed as continued use within the original scope of use:
(1) adding specific goods or services for which the trademark is used;
(2) changing the graphics, text, color, structure, writing style, etc. of the trademark, except for changes made for the purpose of distinguishing it from other registered trademarks;
(3) other circumstances beyond the original scope of use.
Protection of Well-Known Trademarks
Well-Known Trademarks & Determination
A well-known trademark is a trademark that is well-known to the relevant public in China. Whether a trademark is well-known shall be determined pursuant to the related regulations.
During the processes of trademark registration examination, trademark review and adjudication, and administrative investigation and handling of trademark infringement cases, in which the relevant right holders claim their rights on well-known trademarks pursuant to the relevant regulations, the Trademark Office may determine the well-known status of a trademark based on the needs of examining and handling cases
During the trial of civil and administrative trademark cases, if the parties claim rights on well-known trademarks pursuant to the relevant regulations, the court may make a determination on the well-known status of the trademark based on the needs of trying the case.
The following factors should be considered in determining a well-known trademark:
(1) reputation of the trademark in the relevant sector of the public;
(2) duration of use of the trademark (such as the history and scope of trademark use and registration);
(3) duration, extent, and geographical scope of the publicity for the trademark (such as the approach, geographical scope, types of publicity media and the volume of advertising and promotional activities);
(4) history of protection of the trademark as a well-known trademark (such as materials proving that the trademark had been protected as a well-known trademark in China or other countries and regions); and
(5) other factors contributing to the reputation of the trademark (such as sales revenue, market share, net profit, taxes paid, sales area, etc. of the main products using the trademark).
Unregistered well-known trademarks
Ordinary unregistered trademarks, except for those prohibited from use under the Trademark Law, can be used as long as their use is in accordance with the law and related regulations. But they do not have the exclusive rights granted to registered trademarks.
Unregistered well-known trademarks, however, may obtain the following special protections similar to the exclusive rights to use registered trademarks.
Where a trademark is a reproduction, an imitation, or a translation of another person's well-known mark that has not been registered in China and the registration of the trademark on identical or similar goods is likely to cause confusion, this trademark shall not be registered.
Where a trademark is a reproduction, an imitation, or a translation of another person's well-known mark that has not been registered in China and the use of the trademark on identical or similar goods is likely to cause confusion, this trademark shall be prohibited from use.
Where the use of the unregistered well-known trademark of another person as the trade name of the enterprise misleads the public and constitutes unfair competition, the rights holder may seek relief under the Anti-Unfair Competition Law of the PRC.
Registered well-known trademarks
The protection scope of an ordinary registered trademark is limited to the trademark approved for registration and the goods/services designated for use.
In addition to such protection scope of an ordinary registered trademark, a registered well-known trademark can also enjoy the following special protection on non-identical or non-similar goods or services under certain conditions.
Where a trademark is a reproduction, an imitation, or a translation of another person's well-known mark that has been registered in China, and the registration of the trademark on non-identical or dissimilar goods misleads the public and is likely to create prejudice to the interests of the well-known mark registrant, this trademark shall not be registered.
Where a trademark is a reproduction, an imitation, or a translation of another person's well-known mark, which has been registered in China, or the main part thereof, and the use of the trademark on non-identical or dissimilar goods misleads the public and is likely to create prejudice to the interests of the well-known mark registrant, this trademark shall be prohibited from use.
Seeking Administrative Relief
Where any dispute arises from infringement upon the exclusive rights to a registered trademark, the parties concerned may request the administrative authority to handle it, which is called administrative relief, or administrative enforcement..
Anyone may complain or report to the administrative authority for any infringement upon the exclusive rights to a registered trademark.
1. Administrative Enforcement
For acts of infringement on the exclusive rights to a registered trademark, the trademark registrant or interested party may request the local market regulation administration bureau at or above the county level where the illegal act occurred to handle the matter.
Anyone may file a complaint or report the acts of trademark infringement to the local market regulation administration bureau at or above the county level where the illegal act occurred.
Complaint Documents
When a trademark registrant or interested party requests the local market regulation administration bureau to handle the trademark infringement case, the following should be submitted:
(1) Complaint;
(2) Valid trademark registration certificate;
(3) Identity certifications of the trademark registrant or interested party;
(4) Evidence of infringement (such as infringing objects or photos, shopping receipts, promotional advertisements, webpage images, etc.);
(5) Power of attorney and agent's identity certificate (if the complaint is handled by an agent)
The complaint should include: information of the petitioner, the respondent and the agent (name, address, contact information, name of the legal representative), the explicit request, specific facts and grounds and necessary evidence.
If the petitioner is an interested party, it should submit relevant proof, such as an exclusive or sole trademark license agreement to demonstrate its eligibility as an interested party.
Some local market regulation administration bureau will require the petitioner to submit a letter of commitment, in which the petitioner undertakes to bear the corresponding legal and economic responsibilities for any losses caused to the adverse party due to false complaints.
Some local market regulation administration bureaus will require the petitioner to issue an identification certificate for counterfeit trademarked goods.
Docketing and accepting
If the complaint documents submitted meet the related requirements, the administration bureau will docket the case and accept the complaint.
If the complaint documents submitted do not meet the related requirements, the complaint will not be accepted and the petitioner will be notified.
Investigation and evidence collection
When investigating and handling the suspected infringement upon another person’s exclusive rights to a registered trademark based on evidence obtained indicating the suspected violations or reported information, the administration bureaus at or above the county level may exercise the following powers:
(1) to inquire of the party concerned about the case and to investigate into the circumstances relating to the infringement on another person’s exclusive rights to the registered trademark
(2) to review and reproduce the contracts, invoices, account books and other materials of the party concerned relating to the infringement;
(3) to conduct an on-site inspection of the premises where the party concerned has carried out the suspected act of infringement on another person’s exclusive rights to a registered trademark; or
(4) to examine the articles relating to the act of infringement, and may seal or seize the articles which are proved to infringe another person’s exclusive rights to a registered trademark by evidence.
When the administration bureau exercises the above powers in accordance with the law, the parties shall provide assistance and cooperation and shall not refuse or obstruct.
Identification of the rights holder
In the process of investigating and handling trademark infringement cases, the administration bureau may require the rights holder to issue a written identification opinion on whether the goods involved are produced by the rights holder or produced under his authorization. The rights holder shall bear the corresponding legal responsibility for his identification opinion.
The administration bureau shall examine the eligibility of the identifier to issue the identification opinion and the authenticity of the identification opinion. If the suspected infringer has no contrary evidence to overturn the identification opinion, the administration bureau shall adopt the identification opinion as evidence.
Due Process Hearing
Before making an administrative penalty decision, the administration bureau shall inform the parties of the content, facts, reasons and basis of the proposed administrative penalty, and inform the parties of their rights to make statements, defenses and request hearings in accordance with the law.
If the parties request a hearing in accordance with relevant regulations, the administration bureau shall organize a hearing for cases that fall within the scope of the hearing and listen to the statements, defenses and cross-examination of the hearing participants.
Suspension
During the process of investigating and handling trademark infringement cases, if there is a dispute over the ownership of the trademark or the rights holder simultaneously files a trademark infringement lawsuit with the court, the administration bureau may suspend the investigation and handling of the case. After the reasons for suspension are eliminated, the case investigation and handling procedures shall be resumed or terminated.
If the ownership of the registered trademark involved in the case is being examined by the Trademark Office or the court, and the outcome of the ownership case may affect the determination of the infringement case, then it falls under the circumstance of a dispute over the ownership of the trademark as provided for in above, and the administration bureau may suspend the infringement case.
Decision
After examining the case investigated, the administration bureau shall make a penalty decision based on facts and laws if the infringement is established. If the infringement constitutes a crime, it will be transferred to the judicial authorities.
Administrative penalties
Where the administration bureau finds that the infringement is established, it shall order the infringer to immediately stop the infringing act, confiscate and destroy the infringing goods and any implements specifically used to manufacture the infringing goods and counterfeit symbols of the registered trademark and impose a fine.
Where the illegal business revenue is more than 50,000 RMB yuan, a fine of up to five times the illegal business revenue may be imposed. Where there is no illegal business volume or the illegal business revenue is less than 50,000 RMB yuan, a fine of up to 250,000 RMB yuan may be imposed.
The administration bureau shall impose heavier punishment on the infringer who commits trademark infringement acts twice or more within five years or the infringement falls under other serious circumstances.
“Committing trademark infringement acts twice or more within five years” refers to the situation where the same infringer, after being subject to an administrative penalty or judgment made by the administration bureau or the court determining infringement on the exclusive right of another person’s registered trademark, commits another act of trademark infringement within five years from the date such administrative penalty or judgment takes effect.
Illegal business turnover
Illegal business turnover refers to the total value of the infringing goods involved in the trademark infringement of the party, or the business income generated by the infringement.
The following factors may be considered in the calculation of illegal business turnover:
(1) the sales price of the infringing goods;
(2) the marked price of the unsold infringing goods;
(3) the average price of the infringing goods actually sold;
(4) the market median price of the infringed goods;
(5) the business income generated by the infringer due to the infringement;
(6) other factors that can reasonably calculate the value of the infringing goods.
Market Median Price
The “market median price of the infringed goods” mentioned in the above item (4) shall be determined according to the retail guidance price of the same goods published by the infringed party. If no retail guidance price is published, it shall be determined according to the following approach:
(1) If there are multiple merchants selling the same infringed goods in the market, the market median price shall be determined by taking samples of the retail prices of several of these merchants and calculating the average price; if there is only one merchant selling the infringed goods, the market median price shall be determined according to the retail price of this merchant;
(2) If there is no sale of the same infringed goods in the market, it shall be determined according to the median price of the same infringed goods previously sold in the market, or according to the market median price of the same infringed goods that is identical or similar to the infringing goods in terms of function, purpose, main materials, design, configuration, etc.
If it is difficult to determine the market median price according to the above approach, it may be determined by the price determination agency.
The market median price of the infringed goods stated by the parties or provided by the trademark rights holder may be used as a reference after other related evidence is examined and its authenticity is verified.
If a party has objections to the calculation results of the market median price of the infringed product, they shall provide evidence to prove its opinion.
Rules for calculation
The value of the infringing goods that have been sold shall be calculated according to the actual sales price. The value of the infringing goods that have not been sold shall be calculated according to the actual average sales price of the infringing goods that have been ascertained. If the actual average sales price cannot be ascertained, it shall be calculated according to the marked price of the infringing goods. If the actual sales price cannot be ascertained or the infringing goods have no marked price, it shall be calculated according to the market median price of the infringed goods during the period of infringement.
For goods that have been manufactured but have not yet been attached with infringing registered trademark signs, if there is definite and sufficient evidence to prove that the goods will infringe on the exclusive rights of others to register trademarks, their value shall be included in the illegal business turnover.
Calculation for specific situations
Processing contracts with labor and materials supplied by contractor:
In the processing and contracting business activities where labor and materials are supplied by contractor, if goods that infringe on the exclusive rights of registered trademarks are used, the illegal business volume shall be calculated according to the actual sales price of the infringing goods; if the infringing goods are not priced independently, it shall be calculated according to the value ratio in the processing and contracting business activities; if the value ratio cannot be distinguished, the illegal business volume shall be calculated according to the market median price of the infringed goods.
Goods given away as free gifts:
If the goods that are given away as free gifts infringe upon the exclusive rights to a registered trademark of another person, the illegal business turnover shall be calculated based on the actual purchase price or manufacturing cost of the gifts. If the actual purchase price or manufacturing cost of the gifts cannot be determined, or if the goods given away as free gifts are non-standard goods, the illegal business turnover shall be calculated based on the marked price or the market median price of the infringed goods.
Refurbished goods:
If the refurbished goods infringe the exclusive rights of another person's registered trademark, the illegal business turnover shall be calculated according to the overall value of the infringing goods. If the refurbished goods themselves do not infringe the exclusive rights of another person's registered trademark, but only their parts or accessories infringe the exclusive rights of another person's registered trademark, the illegal business turnover shall be calculated according to the value of the infringing parts or accessories.
Counterfeiting signs:
If the infringement behavior is counterfeiting or manufacturing signs of a registered trademark of another person without authorization or selling such counterfeited or manufactured signs of the registered trademark, the illegal business turnover shall be calculated according to the actual sales price of the infringing signs.
Contributory infringement:
If the infringement behavior is intentionally providing facilitation for infringement on the exclusive rights to another person's registered trademark, the illegal business turnover shall be calculated according to the income obtained by assisting the infringement. If there is no such income, it shall be handled as no illegal business turnover.
If the rental goods infringe the exclusive rights of another person's registered trademark, the illegal business turnover shall be calculated according to the rental income.
If the exclusive rights of another person's registered trademark is infringed in advertising and it is impossible to verify the infringing goods, it shall be handled as no illegal business turnover.
If the trademark licensor assists the licensee in infringing the exclusive rights of another person's registered trademark, the illegal business turnover shall be calculated according to the licensing income. If the trademark is licensed for free, it shall be handled as no illegal business turnover.
Fake sales:
If the party provides sufficient evidence to prove that the sales amount of infringing goods increased by fake sales means such as brushing orders, it shall not be included in the illegal business turnover.
Unable to verify
If the actual illegal business turnover cannot be verified according to the above approaches, it shall be handled as no illegal business turnover. If only part of the illegal business turnover can be verified, it shall be handled according to the verified illegal business turnover.
Legitimate source
Where a person sells the goods without knowing that the goods infringe on the exclusive rights to a registered trademark, and can prove that the goods were obtained legitimately and indicate the supplier, the administration bureau shall order him to stop selling the infringing goods.
The administration bureau responsible for investigating and handling the case shall notify the administration bureau in the place where the supplier of the infringing goods is located of such information about case that the seller is ordered to stop selling the infringing goods sold without knowing the infringement and obtained from a legitimate source.
A seller can prove that the goods were legitimately obtained if it falls under any of the following circumstancesr:
(1) There is a supply list and payment receipt with legitimate signatures and seals from the supplier and it is verified to be authentic or recognized by the supplier;
(2) There is a purchase contract signed by the supply and sales parties and it is verified to have been truly performed;
(3) There is a legitimate purchase invoice and the items recorded in the invoice correspond to the goods involved;
(4) Other circumstances that can prove that the goods involved were legitimately obtained.
The following circumstances does not fall under the category of selling goods without knowing that the goods infringe the exclusive rights of a registered trademark:
(1) The purchase channel does not conform to business practices and the price is significantly lower than the market price;
(2) The party refuses to provide accounting documents such as accounts and sales records, or the accounting documents are falsified;
(3) Physical evidence is transferred or destroyed after the incident, or false certificates or false information are provided;
(4) The party commits the same violation again after being dealt with for similar violations;
(5) Other circumstances that can be determined as that the party knew or should have known.
“Indicating the supplier” refers to the situation where the suspected infringer voluntarily provides accurate information or clues of the supplier, such as name, business address, and contact information.
Where the suspected infringer provides false or unverifiable information so that the supplier cannot be found, this shall not be deemed as “indicating the supplier”.
Where the seller who had been ordered to stop selling the infringing goods sells the infringing goods again, he shall be investigated and dealt with according to law.
Suspected Crime
Where the administration bureau finds a suspected crime during investigating and handling trademark infringement, it shall promptly transfer the case to the judicial authorities for handling in accordance with the law.
Compensation for Damages
The trademark registrant or interested party has the right to seek compensation for damages caused by the infringer’s infringement on its trademark exclusive rights.
However, in administrative relief proceedings for requesting the administrative department to handle trademark infringement, the administrative bureau will not accept and handle requests for compensation for damages.
To claim for compensation for damages in trademark infringement, the rights holder or the party concerned may institute a civil lawsuit with the court. For the legal proceedings of this civil lawsuit, please refer to the Outline of CN Trademark System_Trademark Protection I Judicial Relief.
In administrative relief procedures the administrative bureau can mediate disputes over compensation of damages.
Mediation for damages
For disputes over the compensation for damages in infringement on the trademark exclusive rights, the parties may request mediation from the market regulation administration bureau.
If the parties fail to reach an agreement through mediation by the administration bureau, or fail to perform the mediation agreement after it takes effect, the parties may institute a civil lawsuit before the court.
Determination of damages
Basic rules
According to the provisions of the Trademark Law, the compensation for damages in infringement on trademark exclusive rights shall be determined according to the actual losses suffered by the rights holder due to infringement. If the actual losses are difficult to determine, it may be determined according to the profits earned by the infringer due to infringement. If the losses of the rights holder or the profits earned by the infringer are difficult to determine, it shall be reasonably determined by referring to the multiples of the trademark license fee (or the royalties).
The compensation for damages shall include the reasonable expenses paid by the rights holder to stop the infringement.
Malicious infringement
For malicious infringement on trademark exclusive rights, if the circumstances are serious, the compensation for damages may be determined by one to five times the amount determined in accordance with the above rules.
Calculation approach
When determining the infringer's liability for compensation in accordance with the above rules, the compensation for damages can be calculated based on the calculation method chosen by the rights holder.
The profits earned by the infringer due to infringement as mentioned in the above rules may be calculated based on the product of the sales volume of the infringing goods and the unit profit of the goods. If the unit profit of the goods cannot be ascertained, it shall be calculated based on the unit profit of the goods of the registered trademark.
The losses suffered by the rights holder due to infringement as mentioned in the above rules may be calculated based on the reduction in the sales volume of the goods caused by the infringement or the product of the sales volume of the infringing goods and the unit profit of the goods of the registered trademark.
Statutory damage
If it is difficult to determine the actual losses suffered by the rights holder due to the infringement, the profits earned by the infringer due to the infringement, and the license fee for the use of the registered trademark, the people's court shall award compensation of 5 million or less RMB yuan based on the circumstances of the infringement.
The court may determine the statutory damages based on the request of the parties or on its own authority.
When determining the statutory damages, the court shall consider the nature, duration, consequences of the infringement, the subjective fault degree of the infringer, the reputation of the trademark, and the reasonable expenses of stopping the infringement.
Where the parties reach an agreement on the compensation for damages, such agreement shall be permitted..
Reasonable expenses
Reasonable expenses paid to stop the infringement include reasonable expenses incurred by the rights holder or the entrusted attorney to investigate and collect evidence of the infringement. The court may calculate the attorney fees that meet the regulations of the relevant state departments into the scope of compensation based on the litigation requests of the parties and the specific circumstances of the case.
Defendant's burden of proof
In order to determine the compensation for damages, where the rights holder has tried his best to provide evidence but the books and materials related to the infringement are mainly under the control of the infringer, the court may order the infringer to provide the books and materials related to the infringement..
If the infringer does not provide the books and materials or provides false books and materials, the people's court may determine the compensation for damages with reference to the rights holder's claims and the evidence provided.
No compensation for non-use
Where the exclusive rights holder of a registered trademark requests compensation for damages and the accused infringer raises the defense that the rights holder has not used the registered trademark, the people's court may require the rights holder to provide evidence of actual use of the registered trademark within the previous three years. If the exclusive rights holder of the registered trademark cannot prove that the registered trademark has been actually used within the previous three years, and cannot prove that it has suffered other losses due to the infringement, the accused infringer shall not bear the liability for compensation.
No compensation for legitimate source
Where a person sells goods without knowing that they infringe the exclusive rights to a registered trademark, and can prove that the goods were obtained legitimately and indicate the provider, he shall not bear compensation liability.
2. Trademark Administration
The use of a trademark, whether registered or unregistered, shall be in compliance with the relevant provisions of the Trademark Law.
For acts that violate the provisions of the Trademark Law, the administrative authority shall exercise its management functions and conduct administrative investigations.
According to the circumstances of the illegal acts, the authority shall order the cessation of infringement, order the cessation of sales, order the rectification within a time limit, give warnings, make public notification, impose fines, confiscate and destroy infringing goods and tools, and revoke the registered trademark.
If it constitutes a crime, criminal liability will be pursued in accordance with the law.
Mandatory use of registered trademarks
For Cigarettes, cigars, packaged tobacco, electronic cigarettes and other new tobacco products, trademark registration shall be applied. Without the registered trademarks approved, such products shall not be sold in the market.
If this provision is violated, the local administrative bureau shall order the party concerned to apply for trademark registration within a time limit. If the illegal business turnover is 50,000 RMB yuan or more, a fine of 20% or less of the illegal business turnover may be imposed. If there is no illegal business turnover or the illegal business turnover is less than 50,000 RMB yuan, a fine of 10,000 RMB yuan or less may be imposed.
Prohibited from use
Where a person uses a sign prohibited from use as a trademark, the local administrative bureau shall order to stop the use and require rectification within a time limit. It may also make public notification. If the illegal business turnover is 50,000 RMB yuan or more, a fine of 20% or less of the illegal business turnover may be imposed. If there is no illegal business turnover or the illegal business turnover is less than 50,000 RMB yuan, a fine of 10,000 RMB yuan or less may be imposed.
Banned use of the term "well-known trademark"
Where a manufacturer or operator uses the term "well-known trademark" on goods, goods packaging or containers, or in advertising, exhibitions and other commercial activities, the local administrative bureau shall order it to correct the situation and impose a fine of 100,000 RMB yuan.
Indicating licensees
Where a person uses another person's registered trademark under a license, the name of the licensee and the place of origin of the goods must be indicated on the goods using the registered trademark.
Where this provision is violated, the administrative bureau shall order the person to correct the situation within a time limit. If the person fails to correct the situation within the time limit, the person shall be ordered to stop selling the goods. If the person refuses to stop selling the goods, a fine of 100,000 RMB yuan or less shall be imposed.
Changing registered trademarks
Where a trademark registrant changes the registered trademark, the name of the registrant, the address or other registration matters on his own during the use of the registered trademark, the local administrative bureau shall order the registrant to correct the situation within a time limit. If the registrant fails to correct the situation within the time limit, the Trademark Office shall revoke the registered trademark.
Counterfeiting registered trademarks
Where a person uses an unregistered trademark as a registered trademark, the local administrative department shall order the person to stop the use and make corrections within a time limit, and may make public notification. If the illegal turnover is 50,000 RMB yuan or more, a fine of 20% or less of the illegal turnover may be imposed. If there is no illegal turnover or the illegal turnover is less than 50,000 RMB yuan, a fine of 10,000 RMB yuan or less may be imposed.
Performing management obligations
Where the registrant of a collective trademark or certification trademark fails to perform their management obligations, the administrative bureau shall order the registrant to make rectification within a time limit. If the registrant refuses to make rectification, a fine of three or less times the illegal business turnover, but not more than 30,000 RMB yuan, shall be imposed. If there is no illegal business turnover, a fine of 10,000 RMB yuan or less shall be imposed.
Perform printing management obligations
Where a trademark printer fails to perform trademark printing management obligations, the local administration bureau shall order the printer to make rectification within a time limit, and give a warning according to the circumstances, and impose a fine of three or less times the amount of illegal business turnover, but not more than 30,000 RMB yuan. If there is no illegal income, a fine of 10,000 RMB yuan or less may be imposed.
Malicious application
Where an applicant applies for trademark registration in bad faith and without the genuine intent to use, the administration bureau at or above the county level where the applicant is located or where the illegal act occurred shall give the applicant warnings, impose fines and the like according to the circumstances. If there is illegal business turnover, a fine of three times the illegal business turnover but not more than 30,000 RMB yuan may be imposed. If there is no illegal business turnover, a fine of 10,000 RMB yuan or less may be imposed.
Well-known trademark protection
Where a trademark holder requests well-known trademark protection from the administration bureau, and the Trademark Office determines the mark as a well-known trademark in accordance with the provisions of the Trademark Law, the administration bureau shall order the infringer to stop using the trademark in violation of the provisions of the Trademark Law, and confiscate and destroy the illegally used trademark signs. If the trademark signs are difficult to separate from the goods, they shall be confiscated and destroyed together.
Criminal liability
Where a person uses a trademark identical to a registered trademark on the same goods or services without the authorization of the trademark registrant, and the conduct constitutes a crime, the person shall be held criminally liable in accordance with the law in addition to compensating damages of the infringed party.
Where a person counterfeits or manufactures the signs of another person's registered trademark without authorization, or sells counterfeited or unauthorized signs of the registered trademark, and the conduct constitute a crime, the person shall be held criminally liable in accordance with the law in addition to compensating damages of the infringed party.
Where a person knowingly sells goods bearing a counterfeited registered trademark, and the person’s acts constitute a crime, the person shall be held criminally liable in accordance with the law in addition to compensating damages of the infringed party
Relief against administrative penalties
Administrative reconsideration
If a party is dissatisfied with the administrative penalty decision made by the administrative authority, it can apply for administrative reconsideration to the administrative authority at the next higher level. If the party is still dissatisfied with the reconsideration decision, it can institute an administrative lawsuit with the court.
Administrative legal proceedings
If a party is dissatisfied with the administrative penalty decision, it can directly institute an administrative lawsuit with the court against the administrative penalty decision made by the administrative authority.
If the party applies for administrative reconsideration to the administrative authority at the next higher level and is still dissatisfied with the reconsideration decision, it can institute an administrative lawsuit with the court against the reconsideration decision made by the higher administrative authority.
Statistics in recent years
In 2024
China's market regulation administration bureaus at all levels investigated and dealt with 40,400 trademark violation cases, involving a total amount of 1.11 billion RMB yuan; 1,220 suspected criminal cases were transferred to judicial authorities in accordance with the law.
In 2023
China's market regulation administration bureaus at all levels investigated and dealt with 39,400 trademark violation cases, with a case value of 790 million RMB yuan and a fine of 626 million RMB yuan. Among them, there were 35,100 trademark infringement and counterfeiting cases, with a case value of 730 million RMB yuan. 1,330 suspected criminal cases were transferred to judicial authorities in accordance with the law.
In 2022
China's market regulation administration bureaus at all levels investigated and dealt with 37,500 trademark violation cases, with a case value of 1.448 billion RMB yuan and a fine of 594 million RMB yuan. Among them, there were 31,400 trademark infringement and counterfeiting cases, with a case value of 734 million RMB yuan and a fine of 529 million RMB yuan. 1,041 suspected criminal cases were transferred to judicial authorities in accordance with the law.
In 2021
China’s market regulation administration bureaus at all levels in China investigated and dealt with 39,500 trademark infringement cases, with a case value of 983 million RMB yuan and a fine of 686 million RMB yuan. Among them, there were 35,700 trademark infringement and counterfeiting cases, with a case value of 945 million RMB yuan and a fine of 637 million RMB yuan. 1,011 suspected criminal cases were transferred to judicial authorities in accordance with the law.
In 2020
China's market regulation administration bureaus investigated and dealt with 31,300 trademark infringement cases, with a case value of 790 million RMB yuan and a fine of 700 million RMB yuan. Among them, there were 29,600 trademark infringement and counterfeiting cases, with a case value of 765 million RMB yuan and a fine of 67,800 RMB yuan. 811 suspected criminal cases were transferred to judicial authorities in accordance with the law.
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Patent enforcement, patent infringement, administrative enforcement, administrative action, administrative adjudication
