China
Answer ... If the owner of a registered trademark believes that its rights have been infringed, it may file:
- a civil lawsuit with the relevant local people’s court; or
- an administrative complaint with the local market supervision bureau (MSB).
In a civil action, the court may order the infringer to:
- stop the infringing activities;
- compensate for the brand owner’s damages; and/or
- destroy the infringing goods and equipment for making the goods.
The MSB may:
- seize and destroy the infringing goods and equipment for making the goods; and/or
- impose fines on the infringer.
If the infringing goods are to be imported or exported, the brand owner can request Customs to seize and destroy the goods.
If the infringement is serious, the brand owner can request the police to initiate criminal investigations. The infringer, if found guilty, could face a prison sentence and fines.
China
Answer ... Protection against trademark dilution is not specifically provided for under Chinese law. In practice, rights holders may seek recognition of a given trademark as well known, which is intended:
- to provide broad cross-class protection against the registration and use of identical or similar marks in respect of dissimilar goods or services; and
- to some extent, to serve as protection against trademark dilution.
China
Answer ... Other harms to trademark rights may be regulated by the PRC Anti-unfair Competition Law. These may include damages resulting from:
- misleading or false representations;
- passing off;
- the filing of trademark applications in bad faith; and
- actions against true brand owners in bad faith.
In general, any type of conduct that may cause public confusion, mislead consumers or create improper competitive advantage potentially violates the PRC Anti-unfair Competition Law.
China
Answer ... The owner of a registered trademark can file:
- an administrative complaint with a local MSB;
- a civil lawsuit with the relevant local people’s court; or
- a criminal complaint with the local ministry of public security (police) office.
China
Answer ... Typical defences include:
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fair use of:
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- generic/descriptive terms;
- geographical indications; or
- functional features in a three-dimensional trademark;
- use of an identical/similar trademark prior to filing date of the registered mark – although the trademark registrant may request the defendant to take measures to avoid confusion; or
- lack of actual use of the mark by the trademark registrant in the last three years. In this case, the defendant is not obliged to pay the trademark owner damages, but may still be ordered to halt infringing activities.
China
Answer ... After receiving the first-instance judgment, either party may file an appeal with the court at a higher level within 15 days.
Second-instance judgments are final and will come into effect immediately. It is possible to file a retrial request with the court at the next higher level, but:
- retrial requests are not automatically granted – the court will examine the facts and reasoning carefully to decide whether a retrial is necessary; and
- the second-instance judgment remains in effect even after a retrial request has been filed.