In June 2020, China's National Intellectual Property Administration ("CNIPA") issued the highly anticipated Criteria for Determining Trademark Infringement (the "Criteria"). The Criteria offers unified standards and guidance to frontline enforcers in determining claims for trademark infringement in China. The Criteria also provides answers to owners of Chinese trademarks for some common issues in enforcement.
What Constitute "Trademark Use"
In ascertaining whether an act constitutes "trademark use", the Criteria indicates that the following factors shall be considered: (1) the alleged infringer's subjective intention; (2) the manner of use of the alleged infringing mark; (3) the promotion method adopted; (4) the relevant trade practice; and (5) consumer perception.
The Criteria also provides examples particularly in relation to "trademark use" on or in connection with services, including use of trademarks on staff uniforms, price lists, business cards, lotteries, stationary, letterhead, and trade documents, such as contracts, invoices, receipts, remittance advices, repair and maintenance certificates. This provides useful guidance to Chinese enforcers when determining infringement of service marks, which is less straightforward comparing to use of trademark on goods.
