To unify the enforcement standards of administrative departments in trademark administrative enforcement, accurately determine the facts of trademark violations, and standardize the collection, examination, and determination of evidence, on 2 December 2023, the CNIPA issued a draft of the “Provisions on Standards for Evidence in Trademarks Administrative Enforcement (Draft for Comment) “ (hereinafter referred to as the “Draft”). The Draft consists of five chapters and 46 articles, detailing a total of eight types of evidence, including documentary and physical evidence, and their detailed requirements:
1. Documentary Evidence
The Draft makes it clear that documentary evidence includes proof of ownership of the exclusive right to use registered trademarks (valid trademark registration certificate, renewal certificate, modification certificate, trademark transfer certificate, trademark use permit, etc.), valid identity documents, business licenses, bills, account books, transaction contracts, instruction manuals for articles with trademarks attached, introduction brochures, price lists and so on.
The Draft provides that documentary evidence should meet the following requirements:
1） The original shall be provided; if there are difficulties in providing the original, copies, photocopies, or transcripts may be extracted from the original, with a note stating the words “copies, photocopies, transcripts verified to be correct as originals”, the date of the certificate, the source of the evidence and the signature or seal of the person who provided it;2） If a copy, photocopy, or transcription of the original document is taken from the custody of the department concerned, the source shall be indicated, and its seal shall be affixed after the department has verified that there is no discrepancy;3） The documentary evidence, such as statements, purchase and sales documents, books of accounts, etc., shall be accompanied by explanatory material.
The opinion issued by the trademark right holder confirming that the goods or services in question are produced or provided by him/it or are made or provided under his/its license belongs to the documentary evidence, and the trademark right holder shall state the identification method, the basis of identification and the result of identification.
2. Physical Evidence
The Draft makes it clear that physical evidence includes goods infringing on the exclusive right under the registered trademarks or using trademarks in violation of the trademark management order, as well as materials, tools, and equipment used primarily in the manufacture of infringing goods and the counterfeiting of registered trademark marks.
The Draft provide that physical evidence should meet the following requirements:
1） The Draft specifies that audio-visual evidence includes audio-recorded materials, video-recorded materials, and so on.2） Indicate how it was made, when it was made, who made it, etc; 3） The sound recording shall be accompanied by a transcript of the content of the sound.
3. Audio-visual Evidence
The Draft specifies that audio-visual evidence include audio-recorded materials, video-recorded materials and so on.
The Draft provides that audio-visual materials should meet the following requirements:1） The original carrier of the information in question shall be extracted; if there are difficulties in extracting the original carrier, copies may be extracted;2） Indicate how it was made, when it was made, who made it, etc;3） The sound recording shall be accompanied by a transcript of the content of the sound.
4. Electronic Data
The Draft specifies that electronic data are case-related information that is stored, processed, and transmitted in a digitized form and can prove the facts of a case.
The Draft provides that a transcript shall be made of the extraction of electronic data and contain the following information:1） The name of the original storage medium, where it is stored, the status of signaling on and off, and whether or not coercive measures have been taken;2） The method and process of extraction and the name of the storage medium for the electronic data after extraction;3） Title, category, and file format of the extracted electronic data;4） Matters such as integrity check values for electronic data evidence.
In addition, the Draft stipulates that the original storage media cannot be seized or impounded. The electronic data cannot be obtained, or when there is a self-destructing function or device for electronic data, and the relevant evidence needs to be fixed promptly, the personnel handling the case can take prints, photographs, screenshots, recordings, or video recordings to select the appropriate electronic data.
5. Statements
The Draft stipulates that the parties’ statements include the written and oral statements made by the parties or their authorized representatives during the investigation or inquiry. The statements of the parties shall comply with the following requirements:
1） If the party or its authorized agent provides a written statement, the department responsible for trademark enforcement shall collect the original and require the party to indicate the time, specific content, etc., clearly; the written statement materials issued by the party or its authorized agent in the investigation include the fact of engaging in the suspected trademark violation, the source of the goods or services involved and the provider, the amount of the operation, proof of ownership, and other details.2） If the parties or their authorized agents make statements orally, the case officer may record them as interrogation notes. Interrogation notes should be a comprehensive and accurate conversation record and indicate the time and place, the inquirer and the inquired information, contact telephone number, and contact address. The interrogation transcript may include the fact that the party engaged in trademark violations, the source and provider of the goods or services involved, the amount of business, proof of ownership, and other details. The transcript of the inquiry shall be handed over to the person being questioned to check; if the person being questioned has difficulty reading them, the case officer shall read them to him or her; transcripts, if any errors or omissions, should be allowed to correct or supplement, the altered portion should be signed by the person being questioned; after checking, the person being questioned and the case officer should confirm and sign the transcript on each page.3） Attach a copy of the resident’s identity card which proves the identity of the person concerned.
6. Investigation Transcripts and On-site Transcripts
The Draft specifies that the investigation transcripts and on-site transcripts shall contain the time and place of the investigation or on-site inspection, the information of the case officer, the information of the parties involved, the information of the subject’s qualification, the information of the legal representative (person in charge, operator), the contact telephone number, the contact address, the name of the goods, the marking of the goods, the packaging of the goods, the quantity of the goods, the stock of the goods, the specific events, etc., and shall be signed or stamped by the case officer and the parties involved. The reason should be indicated if the party refuses to sign or cannot. If there are other people on the scene, other people may sign.
7. Overseas Evidence
The Draft makes it clear that overseas evidence includes public documents and certificates formed outside the territory of China and proof of identity relations, such as the subjective qualifications and identity certificates of foreign rights holders.
The Draft requires that overseas evidence should indicate its source and be certified by a notary public in the country in which it is located or that it should fulfill the certification procedures stipulated in the relevant treaties concluded between China and the country in which the evidence is located; evidence formed in Hong Kong, Macao, and Taiwan, should be subjected to the certification procedures by the relevant provisions. In addition, overseas evidence involving foreign documents or foreign language audio-visual materials shall be accompanied by a Chinese translation or other accurate translation by an organization with translation qualifications, with the translation organization’s seal or the translator’s signature.
Finally, the Draft also specifies the general requirements for evidence collection and the methods for reviewing and identifying evidence. The Draft is open for public consultation, and the consultation period will end on 31 December 2023.
1. Documentary Evidence
The Draft makes it clear that documentary evidence includes proof of ownership of the exclusive right to use registered trademarks (valid trademark registration certificate, renewal certificate, modification certificate, trademark transfer certificate, trademark use permit, etc.), valid identity documents, business licenses, bills, account books, transaction contracts, instruction manuals for articles with trademarks attached, introduction brochures, price lists and so on.
The Draft provides that documentary evidence should meet the following requirements:
1） The original shall be provided; if there are difficulties in providing the original, copies, photocopies, or transcripts may be extracted from the original, with a note stating the words “copies, photocopies, transcripts verified to be correct as originals”, the date of the certificate, the source of the evidence and the signature or seal of the person who provided it;2） If a copy, photocopy, or transcription of the original document is taken from the custody of the department concerned, the source shall be indicated, and its seal shall be affixed after the department has verified that there is no discrepancy;3） The documentary evidence, such as statements, purchase and sales documents, books of accounts, etc., shall be accompanied by explanatory material.
The opinion issued by the trademark right holder confirming that the goods or services in question are produced or provided by him/it or are made or provided under his/its license belongs to the documentary evidence, and the trademark right holder shall state the identification method, the basis of identification and the result of identification.
2. Physical Evidence
The Draft makes it clear that physical evidence includes goods infringing on the exclusive right under the registered trademarks or using trademarks in violation of the trademark management order, as well as materials, tools, and equipment used primarily in the manufacture of infringing goods and the counterfeiting of registered trademark marks.
The Draft provide that physical evidence should meet the following requirements:
1） The Draft specifies that audio-visual evidence includes audio-recorded materials, video-recorded materials, and so on.2） Indicate how it was made, when it was made, who made it, etc; 3） The sound recording shall be accompanied by a transcript of the content of the sound.
3. Audio-visual Evidence
The Draft specifies that audio-visual evidence include audio-recorded materials, video-recorded materials and so on.
The Draft provides that audio-visual materials should meet the following requirements:1） The original carrier of the information in question shall be extracted; if there are difficulties in extracting the original carrier, copies may be extracted;2） Indicate how it was made, when it was made, who made it, etc;3） The sound recording shall be accompanied by a transcript of the content of the sound.
4. Electronic Data
The Draft specifies that electronic data are case-related information that is stored, processed, and transmitted in a digitized form and can prove the facts of a case.
The Draft provides that a transcript shall be made of the extraction of electronic data and contain the following information:1） The name of the original storage medium, where it is stored, the status of signaling on and off, and whether or not coercive measures have been taken;2） The method and process of extraction and the name of the storage medium for the electronic data after extraction;3） Title, category, and file format of the extracted electronic data;4） Matters such as integrity check values for electronic data evidence.
In addition, the Draft stipulates that the original storage media cannot be seized or impounded. The electronic data cannot be obtained, or when there is a self-destructing function or device for electronic data, and the relevant evidence needs to be fixed promptly, the personnel handling the case can take prints, photographs, screenshots, recordings, or video recordings to select the appropriate electronic data.
5. Statements
The Draft stipulates that the parties’ statements include the written and oral statements made by the parties or their authorized representatives during the investigation or inquiry. The statements of the parties shall comply with the following requirements:
1） If the party or its authorized agent provides a written statement, the department responsible for trademark enforcement shall collect the original and require the party to indicate the time, specific content, etc., clearly; the written statement materials issued by the party or its authorized agent in the investigation include the fact of engaging in the suspected trademark violation, the source of the goods or services involved and the provider, the amount of the operation, proof of ownership, and other details.2） If the parties or their authorized agents make statements orally, the case officer may record them as interrogation notes. Interrogation notes should be a comprehensive and accurate conversation record and indicate the time and place, the inquirer and the inquired information, contact telephone number, and contact address. The interrogation transcript may include the fact that the party engaged in trademark violations, the source and provider of the goods or services involved, the amount of business, proof of ownership, and other details. The transcript of the inquiry shall be handed over to the person being questioned to check; if the person being questioned has difficulty reading them, the case officer shall read them to him or her; transcripts, if any errors or omissions, should be allowed to correct or supplement, the altered portion should be signed by the person being questioned; after checking, the person being questioned and the case officer should confirm and sign the transcript on each page.3） Attach a copy of the resident’s identity card which proves the identity of the person concerned.
6. Investigation Transcripts and On-site Transcripts
The Draft specifies that the investigation transcripts and on-site transcripts shall contain the time and place of the investigation or on-site inspection, the information of the case officer, the information of the parties involved, the information of the subject’s qualification, the information of the legal representative (person in charge, operator), the contact telephone number, the contact address, the name of the goods, the marking of the goods, the packaging of the goods, the quantity of the goods, the stock of the goods, the specific events, etc., and shall be signed or stamped by the case officer and the parties involved. The reason should be indicated if the party refuses to sign or cannot. If there are other people on the scene, other people may sign.
7. Overseas Evidence
The Draft makes it clear that overseas evidence includes public documents and certificates formed outside the territory of China and proof of identity relations, such as the subjective qualifications and identity certificates of foreign rights holders.
The Draft requires that overseas evidence should indicate its source and be certified by a notary public in the country in which it is located or that it should fulfill the certification procedures stipulated in the relevant treaties concluded between China and the country in which the evidence is located; evidence formed in Hong Kong, Macao, and Taiwan, should be subjected to the certification procedures by the relevant provisions. In addition, overseas evidence involving foreign documents or foreign language audio-visual materials shall be accompanied by a Chinese translation or other accurate translation by an organization with translation qualifications, with the translation organization’s seal or the translator’s signature.
Finally, the Draft also specifies the general requirements for evidence collection and the methods for reviewing and identifying evidence. The Draft is open for public consultation, and the consultation period will end on 31 December 2023.