NOVEMBER 2008
IP Clinic: Should I choose civil or criminal remedies to protect my trade marks in China?
"I work for a global company doing business in China. We have a problem with counterfeiters and I am not sure what is the best way to enforce my trade marks." Responses from a lawyer, in-house counsel and investigator
The lawyer
There are three channels to protect your intellectual property rights in China: administrative, civil and criminal enforcement. The administrative raid is quick and cheap, and the Administration for Industry and Commerce (AIC) or Technical Supervision Bureau (TSB) has the authority to seize infringing products, but not to detain suspects. More and more AICs are asking IP owners to provide notarised and legalised powers of attorney when complaints are filed, which makes administrative enforcement more difficult. An administrative fine is usually regarded as part of the cost of doing business by infringers. However, administrative enforcement makes sense because it allows IP owners to build up a database on repeat offenders. Suspended sentences do not apply to repeat offenders in criminal proceedings according to the judicial interpretations on criminal liability against IP crimes issued in 2007 by the Supreme People's Court and the Supreme People's Procuratorate.
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