On 26 December 2024, the State Administration for Market Regulation (SAMR) and the China National Intellectual Property Administration (CNIPA) issued the Trademark Administrative Law Enforcement Evidence Regulations (Regulations), effective from 1 January 2025. These Regulations aim to improve the consistency and transparency of evidence handling in trademark enforcement cases, providing clear standards for collecting, examining, and utilizing evidence in such cases.
The Regulations are based on key Chinese laws such as the Administrative Penalty Law, Administrative Compulsion Law, Trademark Law, and Civil Procedure Law. The primary purpose is to standardize the evidence collection process and ensure fair decision-making in trademark-related administrative cases.
[Key Provisions of the Regulations]
The Regulations define several types of evidence that can be used in trademark enforcement cases, typically including written evidence, physical evidence, audiovisual materials, and electronic data. Other types of evidence include witness testimonies, party statements, expert opinions, and on-site records of investigations or inspections.
i) Written Evidence
Written evidence refers to documents that substantiate case facts, including but not limited valid trademark registration certificates, trademark renewal certificates, trademark change certificates, trademark assignment certificates, trademark licensing certificates, trademark files with the special seal of the CNIPA, valid identification documents, business licenses, transfer vouchers, invoices, account books, transaction contracts, product manuals with trademark attachments, brochures, price lists, and trademark application documents for malicious trademark registration, agency contracts, and so on.
If original documents are unavailable, certified copies or notarized versions can be used. The Regulations also allow the use of electronic versions of documents, such as electronic trademark registration certificates, electronic business licenses, and electronic invoices, provided that they are verified and authenticated.
ii) Physical Evidence
Physical evidence refers to tangible objects or materials that serve as proof of the facts of a case, such as goods that infringe upon the exclusive rights of a registered trademark or violate trademark management order through the use of a trademark, trademark labels, as well as materials, tools, and equipment primarily used to manufacture infringing goods and counterfeit trademark labels.
The Regulations require that physical evidence should ideally be the original items. If this is not possible, photographs or videos of the items may suffice, provided they are properly authenticated. In cases involving large quantities of goods, sampling can be used, but the sample must be representative of the actual use of the trademark.
Further, when sampling evidence through methods such as online or phone purchases, the transaction process, product unboxing inspection, and sealing process should be recorded using methods such as photography, screenshots, audio recording, or video recording.
iii) Audiovisual Materials
Audiovisual materials, including audio and video recordings, can be used to verify case facts. The Regulations specify that the original recording should be obtained whenever possible. If this is not feasible, certified copies of the recordings may be used. Further, audiovisual evidence must be accompanied by documentation such as transcripts or a summary of the relevant parts of the recording to ensure its context is properly understood.
iv) Electronic Data
Electronic data plays an increasingly important role in trademark enforcement cases, particularly in the digital age. The Regulations outline the specific types of electronic data that can serve as evidence, including 1) documents, images, audio materials, video materials, and other electronic files, along with their attribute information; 2) information published on online platforms such as websites, blogs, and forums; 3) user registration information, identity authentication information, digital signatures, and other user identity information; 4) transaction records, browsing records, operation logs, and other user behavior information; 5) system logs, application logs, security logs, and other system operation information; 6) source code, tool software, running scripts, and other behavioral tool information; and 7) information files related to the case stored in various online application services.
When electronic data is collected, a record of the extraction process must be made, detailing the storage medium, method of extraction, and the integrity of the data. The Regulations also allow for the direct collection of electronic data when it is impossible to seize the original storage media, such as when data could be automatically destroyed.
v) Foreign Evidence
The Regulations address the treatment of foreign evidence, which includes documents or materials originating outside of China. Such evidence must comply with international treaties and verification standards. If the evidence is in a foreign language, it must be accompanied by an accurate Chinese translation certified by a qualified translation agency or the translator.
[Comment]
These regulations offer much-needed clarity and structure for handling evidence in trademark enforcement. The detailed provisions on electronic data are particularly significant, considering the growing importance of digital commerce and cross-border trademark issues. While the regulations improve consistency in evidence handling, the success of their implementation will depend on adequate training for law enforcement officials. Overall, the new rules should help create a fairer, more predictable environment for trademark disputes, enhancing the protection of intellectual property in China.
The Regulations are based on key Chinese laws such as the Administrative Penalty Law, Administrative Compulsion Law, Trademark Law, and Civil Procedure Law. The primary purpose is to standardize the evidence collection process and ensure fair decision-making in trademark-related administrative cases.
[Key Provisions of the Regulations]
The Regulations define several types of evidence that can be used in trademark enforcement cases, typically including written evidence, physical evidence, audiovisual materials, and electronic data. Other types of evidence include witness testimonies, party statements, expert opinions, and on-site records of investigations or inspections.
i) Written Evidence
Written evidence refers to documents that substantiate case facts, including but not limited valid trademark registration certificates, trademark renewal certificates, trademark change certificates, trademark assignment certificates, trademark licensing certificates, trademark files with the special seal of the CNIPA, valid identification documents, business licenses, transfer vouchers, invoices, account books, transaction contracts, product manuals with trademark attachments, brochures, price lists, and trademark application documents for malicious trademark registration, agency contracts, and so on.
If original documents are unavailable, certified copies or notarized versions can be used. The Regulations also allow the use of electronic versions of documents, such as electronic trademark registration certificates, electronic business licenses, and electronic invoices, provided that they are verified and authenticated.
ii) Physical Evidence
Physical evidence refers to tangible objects or materials that serve as proof of the facts of a case, such as goods that infringe upon the exclusive rights of a registered trademark or violate trademark management order through the use of a trademark, trademark labels, as well as materials, tools, and equipment primarily used to manufacture infringing goods and counterfeit trademark labels.
The Regulations require that physical evidence should ideally be the original items. If this is not possible, photographs or videos of the items may suffice, provided they are properly authenticated. In cases involving large quantities of goods, sampling can be used, but the sample must be representative of the actual use of the trademark.
Further, when sampling evidence through methods such as online or phone purchases, the transaction process, product unboxing inspection, and sealing process should be recorded using methods such as photography, screenshots, audio recording, or video recording.
iii) Audiovisual Materials
Audiovisual materials, including audio and video recordings, can be used to verify case facts. The Regulations specify that the original recording should be obtained whenever possible. If this is not feasible, certified copies of the recordings may be used. Further, audiovisual evidence must be accompanied by documentation such as transcripts or a summary of the relevant parts of the recording to ensure its context is properly understood.
iv) Electronic Data
Electronic data plays an increasingly important role in trademark enforcement cases, particularly in the digital age. The Regulations outline the specific types of electronic data that can serve as evidence, including 1) documents, images, audio materials, video materials, and other electronic files, along with their attribute information; 2) information published on online platforms such as websites, blogs, and forums; 3) user registration information, identity authentication information, digital signatures, and other user identity information; 4) transaction records, browsing records, operation logs, and other user behavior information; 5) system logs, application logs, security logs, and other system operation information; 6) source code, tool software, running scripts, and other behavioral tool information; and 7) information files related to the case stored in various online application services.
When electronic data is collected, a record of the extraction process must be made, detailing the storage medium, method of extraction, and the integrity of the data. The Regulations also allow for the direct collection of electronic data when it is impossible to seize the original storage media, such as when data could be automatically destroyed.
v) Foreign Evidence
The Regulations address the treatment of foreign evidence, which includes documents or materials originating outside of China. Such evidence must comply with international treaties and verification standards. If the evidence is in a foreign language, it must be accompanied by an accurate Chinese translation certified by a qualified translation agency or the translator.
[Comment]
These regulations offer much-needed clarity and structure for handling evidence in trademark enforcement. The detailed provisions on electronic data are particularly significant, considering the growing importance of digital commerce and cross-border trademark issues. While the regulations improve consistency in evidence handling, the success of their implementation will depend on adequate training for law enforcement officials. Overall, the new rules should help create a fairer, more predictable environment for trademark disputes, enhancing the protection of intellectual property in China.