IP Litigation & Enforcement Guide in China

There have been many questions and concerns about the procedure of IP litigation and IP enforcement in China. However, in the IP industry in China, we still haven’t had a clear guideline for rights holders as well as the parties related to its procedures. This article will address some common questions and concerns of the IP litigation and enforcement landscape in China, primarily the sections revolving around civil and criminal enforcement.

Methods for enforcing IP rights in China

The procedures for civil enforcement in China

• To initiate a civil action, the rights holders must file an application to the enforcement chambers of courts where the assets are located;
• After receiving the request, a civil judgment may be enforced by freezing bank accounts or other assets and sales of the infringement parties;
• It should also be noted that to initiate a civil action, a power of attorney (POA) is required;
• For foreign parties, the power of attorney (POA) needs to be localized, legalized, and accompanied by proof of the signor’s authority to sign.  

Note:

Normally, civil action will take around 6 to 12 months from the issue of proceedings to the first instance judgment. An appeal will require an additional 6 to 12 months.

The official language of all proceedings is Mandarin Chinese. If the submitted evidence is in another language, it must first be translated into Chinese and certified by a translation agency. If the entire document is too long, the applicant may submit the translation part of only relevant sections.

Interim injunctions and permanent injunctions

For Interim injunctions, the IP rights holders are empowered to grant an Interim injunction if the Plaintiff can establish that:

• The other party is committing or about to commit an act of infringement;
• The other party is creating irreversible loss to the lawful rights and interests of the rights holders;
• The other party is creating potential difficulties in the enforcement of any judgment.

For permanent injunctions, the IP rights holders are empowered to request a permanent injunction if infringement has been established. However, it should be noted that the request may be refused on public policy grounds or if the patent is a standard-essential patent.

The criminal enforcement in China

Criminal enforcement can be initiated against trademark and copyright infringement in China. 

The Public Security Bureau (PSB) is responsible for the investigation, arrest, and preliminary examination of IP criminal cases. However, it should be noted that they commonly only deal with serious cases that involved a large number of infringement actions or the loss of properties is immense. 

There are a number of ways to get the PSB to handle criminal cases, such as: 

• Through the transfer of cases from administrative authorities;
• Direct filing of a complaint;
• Through PSB’s own investigations. 

Once the PSB has accepted to handle an infringement case, they will either decide to terminate or prosecute:

If the case is prosecuted, the case will then be transferred to the People’s Procuratorate for prosecution in court, an indictment will be filed in court and a public hearing will be held.

Note:

It should be noted that private prosecutions can also be brought but they are rare.

Criminal appeals can be brought to the next highest court in the court hierarchy.

The IP treaties that China is a member of:

• Madrid Agreement
• WTO – TRIPS Agreement
• WIPO – Performances and Phonograms Treaty
• WIPO – Copyright Treaty
• WIPO – Trademark Law Treaty
• Nice Agreement
• Strasbourg Agreement
• Locarno Agreement
• Berne Convention
• Paris Convention
• Patent Cooperation Treaty
• Beijing Treaty
• Singapore Treaty
• Washington Treaty
• Phonograms Convention
• Universal Copyright Convention
• UPOV Convention

***Other Articles***

– You could see How To Register Trademark in China here.

– You could visit here to see Procedure of Trademark in China.

– You could visit here to check Required documents of filing trademark in China.

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