On August 19, 2024, the State Administration for Market Regulation (SAMR) issued a draft of the Evidence Regulations on Trademark Administrative Enforcement (Draft) for public opinions.
The Draft contains 24 articles and includes, but is not limited to, key points as follows:
The Draft is applied to the evidence collection, examination, and recognition during the investigating trademark violation cases by the trademark administrative enforcements; and the types of evidence above include 1) documentary evidence, 2) physical evidence, 3) audio-visual materials, 4) electronic data, 5) witness testimony, 6) statements of the parties, 7) appraisal opinions, and 8) on-site transcripts.
Among them, the documentary evidence refers to the written materials that express the relevant facts of the case in the form of words, symbols, and patterns, including but not limited to, proof of the registered trademark right, valid identity documents, business licenses, transfer vouchers, bills, account books, transaction contracts, manuals, brochures, price lists, etc., of articles with trademarks attached, as well as trademark application documents and entrusted agent contracts of suspected maliciously registered trademarks, and the electronic forms thereof. The collection of the documentary evidence prefers the original document; in case it is difficult to obtain the original documents, a duplicate document can be obtained provided that it has a written statement of “identical to the original upon checking,” as well as a signature or chop from the provider, etc.
Physical evidence refers to evidence that proves the facts of a case by the shape, character, texture, and specifications of objective material entities such as articles and traces, including but not limited to goods and marks that are infringing the exclusive registered trademark rights or in violation of the trademark management order, as well as materials, tools, and equipment mainly used in the manufacturing of the infringing goods and the counterfeit registered trademark. The collection of the physical evidence prefers the original products; in case it is difficult to obtain the original products, photos and videos thereof can be collected. In case it is collected through the network, telephone purchase, and other means of sampling evidence, it shall take pictures, screenshots, audio, video, and other means of the transaction process, commodity unpacking and inspection and sealing of samples, and other processes for the record.
Electronic data means information that is stored, processed, and transmitted in digital form and is capable of proving the facts of a case, including but not limited to documents, pictures, audio materials, video materials, and other electronic files and their attribute information; information published on web pages, blogs, forums, and other online platforms; user registration information, identity authentication information, digital signatures, and other user identity information; transaction records, browsing records, operation records, and other user behavior information, etc.
Appraisal opinion is an opinion issued by a qualified appraisal body on a specialized issue, and it shall meet the following requirements: 1) containing the commissioner and the commissioned appraisal matter, the relevant material submitted to the appraisal body, the basis for the appraisal and the used scientific and technological means, the statement of the qualification of the appraisal institutions and personnel, etc.; 2) containing the signature of the appraiser and the appraisal organization's seal; 3) statement of the analysis process if it is obtained through analysis.
The Draft also defines the extraterritorial evidence as documents, such as the public documents and certificates formed outside the territory of the People's Republic of China, evidence of identity relations, such as the subjective qualification of foreign right holders, authorization documents and identity certificates, and other evidence related to the facts of the case. Such extraterritorial evidence shall indicate the source and fulfill the formalities of proof stipulated in the relevant treaties concluded between the People's Republic of China and the country in which the evidence is located. Chinese translation by a qualified translation institution with the chop or signature thereof for such evidence shall also be provided.
It is worth noting that in case there are several evidence to prove the same fact, the Draft states that their probative value can be determined in accordance with the following circumstances:1) The official document made by the state organs and other functional departments ex officio are superior to other documentary evidence;2) The appraisal opinions, on-site transcripts, archival materials, and the notarized or registered documentary evidence is superior to other documentary evidence, audio-visual materials and witness testimony;3) The original document and goods are their duplicates;4) The appraisal opinion by the statutory appraisal department is superior to the appraisal opinion of other appraisal departments;5) Witness testimony from others is superior to the witness testimony provided by those related to or having an interest in the concerned parties;6) Several different types of evidence with the same content is better than isolated evidence.
Comment
The Draft is focused on improving the evidence requirements involved in the trademark enforcement cases, as it specifies the types of evidence and the requirements for obtaining such evidence, as well as the recognition of the evidence (e.g., effect and probative values of various evidences). Thus, the Draft provides detailed and practical guidance not only for the relevant government departments (e.g., the market regulation departments at various levels) to handle a trademark administrative enforcement case but also for the concerned parties (especially the trademark right owners) to understand what kind of evidence is helpful in case of a trademark infringing case.
The deadline for the opinion solicitation is September 18, 2024.
The Draft contains 24 articles and includes, but is not limited to, key points as follows:
The Draft is applied to the evidence collection, examination, and recognition during the investigating trademark violation cases by the trademark administrative enforcements; and the types of evidence above include 1) documentary evidence, 2) physical evidence, 3) audio-visual materials, 4) electronic data, 5) witness testimony, 6) statements of the parties, 7) appraisal opinions, and 8) on-site transcripts.
Among them, the documentary evidence refers to the written materials that express the relevant facts of the case in the form of words, symbols, and patterns, including but not limited to, proof of the registered trademark right, valid identity documents, business licenses, transfer vouchers, bills, account books, transaction contracts, manuals, brochures, price lists, etc., of articles with trademarks attached, as well as trademark application documents and entrusted agent contracts of suspected maliciously registered trademarks, and the electronic forms thereof. The collection of the documentary evidence prefers the original document; in case it is difficult to obtain the original documents, a duplicate document can be obtained provided that it has a written statement of “identical to the original upon checking,” as well as a signature or chop from the provider, etc.
Physical evidence refers to evidence that proves the facts of a case by the shape, character, texture, and specifications of objective material entities such as articles and traces, including but not limited to goods and marks that are infringing the exclusive registered trademark rights or in violation of the trademark management order, as well as materials, tools, and equipment mainly used in the manufacturing of the infringing goods and the counterfeit registered trademark. The collection of the physical evidence prefers the original products; in case it is difficult to obtain the original products, photos and videos thereof can be collected. In case it is collected through the network, telephone purchase, and other means of sampling evidence, it shall take pictures, screenshots, audio, video, and other means of the transaction process, commodity unpacking and inspection and sealing of samples, and other processes for the record.
Electronic data means information that is stored, processed, and transmitted in digital form and is capable of proving the facts of a case, including but not limited to documents, pictures, audio materials, video materials, and other electronic files and their attribute information; information published on web pages, blogs, forums, and other online platforms; user registration information, identity authentication information, digital signatures, and other user identity information; transaction records, browsing records, operation records, and other user behavior information, etc.
Appraisal opinion is an opinion issued by a qualified appraisal body on a specialized issue, and it shall meet the following requirements: 1) containing the commissioner and the commissioned appraisal matter, the relevant material submitted to the appraisal body, the basis for the appraisal and the used scientific and technological means, the statement of the qualification of the appraisal institutions and personnel, etc.; 2) containing the signature of the appraiser and the appraisal organization's seal; 3) statement of the analysis process if it is obtained through analysis.
The Draft also defines the extraterritorial evidence as documents, such as the public documents and certificates formed outside the territory of the People's Republic of China, evidence of identity relations, such as the subjective qualification of foreign right holders, authorization documents and identity certificates, and other evidence related to the facts of the case. Such extraterritorial evidence shall indicate the source and fulfill the formalities of proof stipulated in the relevant treaties concluded between the People's Republic of China and the country in which the evidence is located. Chinese translation by a qualified translation institution with the chop or signature thereof for such evidence shall also be provided.
It is worth noting that in case there are several evidence to prove the same fact, the Draft states that their probative value can be determined in accordance with the following circumstances:1) The official document made by the state organs and other functional departments ex officio are superior to other documentary evidence;2) The appraisal opinions, on-site transcripts, archival materials, and the notarized or registered documentary evidence is superior to other documentary evidence, audio-visual materials and witness testimony;3) The original document and goods are their duplicates;4) The appraisal opinion by the statutory appraisal department is superior to the appraisal opinion of other appraisal departments;5) Witness testimony from others is superior to the witness testimony provided by those related to or having an interest in the concerned parties;6) Several different types of evidence with the same content is better than isolated evidence.
Comment
The Draft is focused on improving the evidence requirements involved in the trademark enforcement cases, as it specifies the types of evidence and the requirements for obtaining such evidence, as well as the recognition of the evidence (e.g., effect and probative values of various evidences). Thus, the Draft provides detailed and practical guidance not only for the relevant government departments (e.g., the market regulation departments at various levels) to handle a trademark administrative enforcement case but also for the concerned parties (especially the trademark right owners) to understand what kind of evidence is helpful in case of a trademark infringing case.
The deadline for the opinion solicitation is September 18, 2024.