51 ASIAN LEGAL BUSINESS CHINA • 亚洲法律杂志-中国版 WWW.LEGALBUSINESSONLINE.COM/CHINA Trademark Infringement Dispute Resolution in China In China, there are different remedies accessible to a trademark owner who wants to take legal action against an infringer. The main remedies could be divided into the following four categories: (a) self-help remedies, including negotiation, sending cease and desist letters to the infringer, and filing complaints with e-commerce platforms; (b) administrative remedies, involving reporting and filing complaints to the Administration for Market Regulation (“AMR”), Public Security Bureau (“PSB”), Customs, etc.; (c) judicial remedies, which include taking civil and criminal actions; and (d) alternative dispute resolutions, such as seeking mediation and arbitration by third-party organizations. This article provides a brief overview of the options that a trademark owner may have in China to enforce its right, and the pros and cons thereof. 1. Sending Cease and Desist Letters The right holder can send a cease and desist letter to the infringer when it identified that someone infringed upon its trademark rights. A cease and desist letter typically includes facts, legal basis, and a request for the other party to cease the infringement. Advantages: Simple process and cost-efficient. Disadvantages: It’s a self-help remedy and has no compelling force to the infringer. If the infringer continues the infringement notwithstanding receiving the cease and desist letter, the right holder has to take other actions such as filing administrative complaints or suing the infringer. In case that happens, it’s advisable to well preserve all evidence of the infringement before sending the cease and desist letter. 2. Filing Complaint with E-commerce Platforms Filing online complaints may be considered if the infringement occurs on e-commerce platforms. Most Chinese e-commerce platforms such as Alibaba, JD.com, Pinduoduo, Weidian have specific channels for the right holders to report infringement. The right holders can file complaints by providing prima facie evidence for infringement, and request the platform to take appropriate measures, including but not limited to removing infringing listings or closing the online stores. The grounds for filing the complaints based on trademark rights usually include authentication, genuine-fake comparisons, unfair use of others’ rights, misuse of trademark as keywords, and selfproclaimed counterfeit products. Advantages: Relatively convenient and fast, with low costs; capable of promptly stopping infringement; lower requirements for evidence compared to other types of actions. Disadvantages: This method has certain limitations. For example, complaints can often be rejected by platforms due to the lack of proper grounds under existing rules, particularly in cases where products lack overt features of counterfeiting but are sold at significantly low prices. Additionally, some infringers continue infringements by uploading new links or revising product descriptions, forcing right holders to file multiple complaints against a same product. Moreover, right holders cannot recover any monetary compensation from filing complaints. 3. Filing Complaint with the Administration for Market Regulation ( “AMR” ) The right holders can also report the infringement to the competent administrative authorities. The State Administration for Market Regulation (SAMR) and its subordinate market supervision departments in China undertake trademark infringement raids. The AMR may investigate infringement cases and impose penalties, such as fines and confiscation of infringing products, as it sees fit. CHAPTER 1
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