On June 15 2020, the China National Intellectual Property Administration (CNIPA) issued the Criteria for Determining Trademark Infringement (the “Criteria”).
It is specified in details in the Criteria such as the use of trademarks, the same kind of goods, similar goods, the identical trademark, the similar trademark, easy to confuse, sales exemption, rights conflict, suspension of application, identification of obligees and etc.
According to the Criteria, the first step taken by trademark enforcement agencies when determining whether a trademark is infringed is to evaluate whether the alleged infringing act constitutes the 'trademark use' as provided in the Trademark Law.
Evaluating whether the trademarks in question are identical or similar is to compare the approved merchandise (service) of the registered trademark of the right holder and the alleged infringing trademark (compare their key portions that have the function, purpose, main raw materials, production department, consumer and sales channel of identification).
When evaluating 'a trademark identical with the registered trademark' or 'a trademark similar with the registered trademark', trademark enforcement agencies shall assume the relevant public who has general knowledge and experience toward the merchandise (service) in question.
The trademarks in question shall be looked at separately, compared as a whole, and compared in key portions while factoring in their pronunciations, shapes of their characters, meanings and arrangements.
In addition, the Criteria put market owners, exhibition organizers, sales counter landlords and e-commerce platforms on the chopping block if they are negligent in performing their oversight duty. If they know or shall have known the respective businesses in their markets, exhibitors, counter tenants, businesses on the platforms infringe trademarks and fail to stop such acts; or they have no knowledge of the infringing acts, but fails to stop such acts after being reminded by trademark enforcement agencies, their non-performance will be deemed as trademark infringing acts under Paragraph 6, Article 57 of the Trademark Law.
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Mr. Mike Chang
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