China, being a rapidly developing market with a highly
flourishing economy, is a main source of trade mark
infringement, troubling trade mark owners. Today, we make a
brief introduction to one of the most efficient measures for
cracking down on trade mark infringement – the AIC
According to the law, where a trade mark infringement
happens, the parties of interest may institute a legal
procedure with the People's Court or request the Administration
for Industry and Commerce (AIC) for action. So the AIC is the
competent authority for administrative action against trade
There are different levels of AIC, as an organ of government
of different levels. Usually, AIC at county level or district
level where the infringer is domiciled will examine and accept
the complaints for trade mark infringement. If the AIC at
county (district) level believes there is a case, it will
instruct its subordinate to take a raid action.
AIC at municipal level does not usually handle trade mark
infringement directly, unless the infringement involves huge
amount of value or the infringement involves several counties
or districts where coordination from their common superior AIC
at municipal level is needed.
Of the channels to deal with trade mark infringements as
stipulated in the Trademark Law – civil litigation,
criminal litigation, AIC action and Custom protection
– AIC action is the most efficient one, taking only
one to three months.
AIC can directly stop the infringement and impose a fine, as
opposed to a civil litigation. There is no threshold of value
involved to initiate an AIC action, as opposed to a criminal
litigation. AIC actions are aimed at trade mark infringements
in domestic market other than in the process of imports and
exports, as opposed to the Custom protection.
In the year of 2016, AIC at all levels investigated and
handled 28,189 trade mark infringement cases, with a total
value of RMB 354 million (around $54 million), of which, 293
trade mark infringement cases were handed over to the Public
Security Bureaus for criminal investigation, with a total value
of RMB 160 million (around $27 million).
To initiate an AIC action, you need
1) To obtain information of the infringer and
get samples of infringing goods. Notarisation of the process of
obtaining infringing samples is not requisite, but highly
advisable, because notarised evidence will be requisite for
further legal procedures.
2) To prepare the requisite document,
including a certificate of incorporation (for a company
complainant) or a copy of passport or ID (for an individual
complainant), there needs to be a copy of the trade mark
registration certification or other documentation to prove the
complainant's legal rights and a power of attorney, in case an
attorney is involved. For foreign complainants, the
aforementioned documents should be notarised and legalised with
a Chinese translation.
3) To prepare a complaint.
Then the complainant files all the above document with the
relevant AIC, which will examine the documentation to decide
whether to accept the complaint and to take the action.
For a straightforward trade mark infringement case, it will
be easy and quick for the AIC to make a decision and take an
action. For cases requiring judgment on similarity of the trade
mark and goods it will take a while, because the AIC will have
to take the risk of being sued for a wrong judgment. In that
scenario, the complainant must do a lot of persuasive work
until the AIC believes there is a likelihood of confusion.
Upon acceptance of the complaint, the AIC will have the
infringer's premises raided, and the infringing goods sealed
and seized. AIC will also investigate the amount of value of
infringement. The complaint will be required to issue a
certification in support of the AIC's decision to the effect
that the seized goods are counterfeit.
As remedies, the AIC can order the infringer to immediately
stop infringement, confiscate or destroy infringing goods,
destroy tools mainly for manufacturing infringing goods or
labels and impose a fine where applicable.
In addition to trade mark infringement cases, AIC can also
deal with the following matters:
1) Non-standard use of registered trade
2) Unfair competitions (anti-counterfeiting;
infringement of trade secret; commercial disparagement and
3) Violations of Advertisement Law;
4) Unlicensed business activities.
The complainant should also collect evidence and file a
All in all, AIC action is an incisive and frequently-used
way to fight against trade mark infringements.
A bit of final information:
Due to an system reform on government structure, AIC in some
provinces has been consolidated with other government
organisations to produce a new organisation called
"Administration for Market Supervision", which has taken over
the responsibilities of investigating and handling trade mark
|Lily C Lei
Liu Shen & Associates
10th Floor, Hanhai Plaza
10, Caihefang Road,