Recently, the China National Intellectual Property Administration (CNIPA) and the State Administration for Market Regulation (SAMR) jointly issued the Measures for Calculating the Illegal Business Turnover in Trademark Infringement Cases, providing clearer guidelines on how to calculate the illegal business turnover in cases of trademark infringement handled by administrative law-enforcement departments.
These Measures are important because calculating the illegal business turnover plays a crucial role in the determination of penalties. For instance:
- Using an unregistered trademark on tobacco products in market sales, with an illegal business turnover of CNY50,000 or more, may be subject to a fine of up to 20% of the illegal business turnover.
- In cases where an unregistered trademark is falsely presented as a registered trademark, or an unregistered trademark is used in violation of Article 10 of the Trademark Law, and the illegal business turnover reaches CNY50,000 or more, a fine of up to 20% of the illegal business turnover may be imposed.
- For infringements upon the exclusive rights of a registered trademark, if the illegal business turnover is CNY50,000 or more, a fine of up to five times the illegal business turnover may be imposed.
These Measures have systematically sorted out and summarized the useful experience and practice of calculating the illegal business turnover in trademark infringement cases over the years, with a total of nineteen articles, which mainly provide detailed provisions on the following key issues:
- Definition of the illegal business turnover.
- The general standards for calculating the illegal business turnover.
- The standards for calculating the illegal business turnover in complex infringement cases.
- The handling of cases in which it is impossible to prove the actual amount of the illegal business turnover.
- The special circumstances that do not include the amount of the illegal business turnover.
- The calculation method for the amount of the illegal business turnover in cases reversely referred from criminal organs to administrative organs.
These Measures have been refined to resolve a series of controversies and outstanding issues, provide specific operational guidelines for trademark administrative law-enforcement departments to calculate the amount of illegal business turnover, and create a highly transparent and predictable intellectual property protection environment for business entities.
These Measures further demonstrate the determination of the Chinese government to strengthen intellectual property protection in China.
Encl.: Full English translation of the Measures for Calculating the Illegal Business Turnover in Trademark Infringement Cases
