CNIPA’s publication of the Trademark Infringement Determination Criteria represents a landmark development in China’s IP Law & Policy framework. The document contains 38 detailed standards providing guidance for trademark enforcement authorities. For foreign brand owners, understanding these criteria is essential for effective brand protection in China.

Overview of the 38 Criteria

The 38 criteria are organized into several key sections, each addressing a specific aspect of trademark infringement determination. This IP Law & Policy document represents CNIPA’s effort to standardize enforcement practices across China’s diverse administrative regions.

Key Criteria for Foreign Brand Owners

Criteria 1-5: Trademark Use in Infringement

The criteria define what constitutes “trademark use” in the infringement context. This includes use on goods, packaging, containers, transaction documents, advertising, exhibitions, and in digital commerce. For foreign brands, the inclusion of digital commerce is particularly relevant given the importance of e-commerce platforms in China.

Criteria 6-15: Identical and Similar Marks

These criteria provide detailed guidance on determining whether marks are identical or similar. The standards address visual, phonetic, and conceptual similarity, with specific provisions for Chinese characters, foreign language marks, and combined marks. The criteria emphasize the overall impression of the mark from the perspective of the relevant Chinese consumer.

Criteria 16-25: Identical and Similar Goods

These criteria address the determination of whether goods or services are identical or similar. The standards reference the Nice Classification, China’s subclass system, and functional relationships between goods. Cross-class similarity is addressed in specific circumstances.

Criteria 26-38: Specific Infringement Scenarios

The final section addresses specific infringement scenarios, including:

  • Use of trademarks in trade names and domain names
  • OEM manufacturing and export
  • Parallel imports
  • Online marketplace liability
  • Contributory infringement

Practical Implications for Enforcement

The 38 criteria provide a framework for administrative enforcement actions by local market supervision bureaus. For foreign brand owners, this means:

  • More predictable enforcement: The criteria reduce regional variation in enforcement standards
  • Clearer evidence requirements: The criteria specify what evidence is needed to establish infringement
  • Better strategic planning: Understanding the criteria helps in planning enforcement campaigns

Conclusion

CNIPA’s 38 Trademark Infringement Criteria represent a significant IP Law & Policy advancement that benefits foreign brand owners. By providing clear, detailed standards for infringement determination, the criteria enable more effective and predictable trademark enforcement in China. Every brand owner with operations in China should familiarize themselves with these standards.

Related Articles

Official Resources

Disclaimer: This article is for informational purposes only and does not constitute legal advice.