China Copyright & Patent Service
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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 infringes 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.
Court architecture and the “two-instance” judicial system 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.
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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 litigation 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.
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.
Property attachment and evidence attachment in registered trademark infringement litigation
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.
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.
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.
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