Protection of TM rights needs co-operation of various systems

On 30 August, the Standing Committee of the National People’s Congress deliberated on and adopted the Bill to Amend the Trademark Law, which will officially be implemented from 1 May 2014. The New Trademark Law makes several amendments to make registration by applicants easier, safeguard the fair competition market order and strengthen the protection of trademark rights. Particularly in terms of strengthening the protection of trademark rights, it makes some unprecedented ground-breaking revisions.

Amended provisions

The New Trademark Law introduces for the first time a punitive damages system, specifying that in the event of malicious infringement, where the circumstances are serious, the measure of damages may be set at between one and three times the losses incurred by the rights holder, the benefits derived by the infringer or the royalties for use of the trademark; additionally, it raises the ceiling on the statutory measure of damages from RMB500,000 (US$81,000) to RMB3 million.

With a view to resolving the issue of damages amounts tending on the low side due to the difficulty of rights holders in adducing evidence, the New Trademark Law adds a provision that where the rights holder has done his best to adduce evidence, and the account books and documentation relating to the infringement are mainly in the possession of the infringer, the court may order the infringer to present the same. If the infringer fails to do so, or presents false account books and documentation, the court may determine the measure of damages by making reference to the claims of the rights holder and the evidence presented by him.

Wang Yadong is the executive partner and Hu Cuiqin is a lawyer at Run Ming Law Office