It's your responsibility to ensure that your IP right is enforced. If you’ve registered your IP rights in China and used appropriate contracts, you'll be in a strong position to take action against infringers.
How to enforce your IP rights
You can explore several options to help enforce your IP in China. Depending on the situation, you may need to take multiple enforcement actions at the same time.
You'll need to consider which options are the most appropriate for your circumstances and budget.
You can send a letter to the infringing party to notify them of your rights and concerns and ask that they stop infringing your IP rights.
While cease and desist letters can be helpful in achieving a successful outcome, they can also work against you. They often tip off infringers, allowing them to request a pre-emptive court action to protect themselves.
We recommend that you seek legal advice before proceeding with a cease and desist letter.
Online platforms are a common marketplace for infringing goods.
Most e-commerce platforms have a notice and take-down mechanism for handling IP complaints. If you discover your IP is being infringed, you can take action with the site.
How it works
To file a complaint, you'll need to:
- Register an account on the platform
- Upload evidence of your IP ownership
- File a complaint following the site's processes.
Chinese platforms generally only accept complaints relating to registered Chinese IP rights. This includes Chinese trade mark registration certificates or granted Chinese patents.
The platforms may accept complaints relating to Australian IP rights in limited circumstances. For example, if the complaint relates to an offer of sale within Australia.
Custom authorities can seize shipments of infringing goods before they leave China's borders.
How it works
To enable authorities to seize infringing goods, you’ll need to record your IP right with China's custom authorities. The recordal can be renewed every ten years.
Outcomes
If the custom authorities discover import or export goods that infringe your recorded IP right, they'll notify you immediately in writing. You'll need to:
- Respond quickly to notification of seizures
- Verify the authenticity of the goods
- Apply to have the goods seized
- Post a bond for each seizure.
Administrative enforcement by local authorities can be effective in clear-cut cases of trade mark infringement.
Administrative action:
- Is generally faster and less expensive than court proceedings
- Can be useful for gathering evidence for a criminal or civil case.
How it works
To start administrative action, you'll need to:
- File an IP infringement complaint with local authorities
- Provide evidence of your IP rights and the infringing activity.
Outcomes
If the authorities decide that infringement has occurred, they'll:
- Conduct raids
- Seize infringing goods
- Issue fines.
Courts normally hear more complex infringement cases. If you're not satisfied with a decision by the local authorities, you can apply for administrative review or appeal to the courts.
You can pursue civil enforcement cases in the Chinese courts. This offers a relatively fast mechanism for enforcement, as the time to trial in China is usually around 12 months from when the complaint is filed.
How it works
To start a case, you'll need to find a legal representative to file proceedings on your behalf.
Outcomes
Civil courts can:
- Issue injunctions to stop someone else misusing your IP
- Award damages for infringement.
Depending on the losses incurred as a result of infringing activity, courts can award:
- Compensation for economic loss
- Statutory damages.
Criminal enforcement by local police takes time but can be effective way of eliminating an infringer and deterring others.
Infringement of IP in China can be considered a crime if the infringer is caught selling goods or making illegal gains that meet a certain threshold amount.
How it works
To start proceedings, you'll need to you'll need to find a legal representative to make contact with the authorities on your behalf.
Outcomes
If found guilty, some offences are punishable by fines or imprisonment.
Enforcement actions are usually most effective when the applicant is supported by experienced local legal advisors.
You should consider engaging a legal professional with expertise in Chinese law to advise you on your enforcement options. Your Australian legal counsel can work with Chinese lawyers, or you can work directly with a Chinese or international firm.