The China National Intellectual Property Administration (CNIPA) has published 38 rules on the criteria to determine trade mark infringement. These provide guidance on trade mark enforcement for authorities including the Administrations for Market Regulation.

They aim to standardise enforcement across the country and better protect the rights of trade mark holders. Until now, there had been inconsistency in the enforcement of trade marks under the Chinese Trademark Law.

The criteria were published on 15 June 2020.

Ms Haoyu Feng and Mr Tingxi Huo of the MARQUES China Team have published an article on the criteria, which is available for members to read on the China Team page here (MARQUES log in required). They have also prepared an English translation of the CNIPA Notice, which is available on the Team page.

The topics covered in the criteria, and discussed further in the article, include:

• Use of trade marks in the sense of the Trademark Law (including use in business and preparation for use) and what constitutes unauthorised use
• Same or similar goods and services under China’s classification system
• Identical or similar trade marks, including a broadened concept of identical trade marks and the factors to be considered in assessing similarity
• Likelihood of confusion, and the factors to be taken into account to assess it
• Deceptive practices employed by bad faith filers, including colour/black-and-white marks and the issue of gifts bearing others’ marks
• The clarification of the exemption for unknowing sale of infringing goods
• Conflict with design and copyright
• Repeated infringement within five years
• The importance of verifying opinions by rights holders

The criteria bring together experiences from the various enforcement agencies and should lead to greater consistency and predictability in both administrative and judicial cases.

Read the full analysis on the China Team page.