ANTI-COUNTERFEITING Tour de force
China offers different remedies for enforcing trademarks. Brand owners can enforce their trademark rights using administrative enforcement, civil action or criminal investigation procedures.
Civil actions can yield injunctive relief and damages for brand owners, while criminal actions tend to impose fines and imprisonment on infringers. “According to the statistics of the Supreme People’s Court a few years ago, among those trademark litigations involving a foreign-invested company, about 70 percent of court decisions favour the foreign company, and the ratio may be even higher in recent years.” says Mia Qu, a partner and litigator at King & Wood. “As we all see the development in the litigation mechanism in China, we understand that a lot more will be improved.”
Huo agrees that the legislation and practice concerning litigation against counterfeiters has improved, and he says that civil and criminal actions can help brand owners to enforce their trademarks. Huo says: “In light of the present pattern of trademark infringement in China, both criminal and civil actions are effective at preventing trademark infringement.”
Although litigation is an important element of any type of enforcement strategy, Abrams thinks that it has its drawbacks.
“Litigation in China has not yet proven to be a particularly effective deterrent—the penalties in China are still fairly low,” she says.
Brand owners may wish to consider other steps before enforcing their trademarks with litigation in China. “We look to co-operate and work with customs and local AIC branches in various provinces and cities in order to promote the recognition of our brand and assist in enforcement efforts such as raids and seizures,”says Abrams.
Qu says that administrative procedures are usually triggered by brand owners filing a complaint or making a report to the AIC, although the government agency also has the power to take initiative action.
She says that the administrative enforcement is fast, efficient and simple. “Although the brand owners are required to submit prima facie proof and evidence,” she add, “there are no complicated processes such as evidence exchange and hearing. Te whole process might be completed
“ ALTHOUGH THE BRAND OWNERS ARE REQUIRED TO SUBMIT PRIMA FACIE PROOF AND EVIDENCE, THERE ARE NO COMPLICATED PROCESSES SUCH AS EVIDENCE EXCHANGE AND HEARING. THE WHOLE PROCESS MIGHT BE COMPLETED IN ONE TO THREE MONTHS FROM A BRAND OWNER FILING A COMPLAINT TO THE AIC RENDERING A DECISION. ADMINISTRATIVE ENFORCEMENT IS VERY SUITABLE FOR STOPPING AN OBVIOUS INFRINGING ACT.”
14 World Intellectual Property Review May/June 2011
www.worldipreview.com
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