Patent Enforcement

Civil enforcement of trademark in China is a two-track system. The first is the administrative track (a.k.a. administrative actions), whereby an IPR holder enlists the aid of a local government agency office. The second is the judicial track (a.k.a. civil litigation), where complaints are filed through the court system.

Administrative track is handled through local government offices which operate as a quasi-judicial authority and are staffed with people who specialize in their respective areas of IP law. If they are satisfied with an patent owner’s complaint, they investigate. The government authorities can issue injunctions to halt the infringement. But agency officials do not have the authority to award monetary damages.

In contrast, civil litigation can be brought at IP divisions of various local courts, or specialized IP courts. The court can award injunctions as well as monetary damages.

For administrative actions, the local government authorities often act very quickly and usually make a ruling within six months. Usually, it can be extended for a further three months.
For civil litigation, the time of trial in a Chinese court is usually less than a year from the filing of the complaint. However, if the IPR owner is a foreign entity, there is no time limits on judicial process.

Definitely yes. China established three IP Courts in those three places respectively. The judges are more experienced in handling IP cases. If you, as a foreign entity or person, intends to enforce IPR and choose Beijing, Shanghai or Guangzhou, more than likely you will go to these three courts for trial of first instance.

There is no such thing called evidence discovery in China as in the US. The plaintiff has the burden of proof on infringement and damages, and should prepare as much evidence as possible. Private investigation firms and public notary are common service providers when it comes to evidence collection and preservation.

Since there is no evidence discovery, actual damages for infringement are difficult to determine given the lack of information on sales numbers and profits. Statutory damages are adopted in most cases. The new Trademark Law has raised statutory damages from RMB 500,000 to RMB 3,000,000, a significant raise.