China Trademark Law: stopping infringing goods at the border


Nikita Xue and Xu Zhang

Amendments to the Chinese Trademark Law will affect the role of customs officials in preventing piracy of original equipment trademarks, say Nikita Xue and Xu Zhang.

Since 1994, the China customs authority has been vigilant in its commitment to enforcing intellectual property rights. Statistics show that, by 2010, its efforts to seize infringing goods had led to approximately 120,000 cases, with a seizure value of RMB2.4 billion ($386 million). More recently, in 2011 and 2012, the amount of infringing merchandise detained by customs totalled around RMB190 million, mainly consisting of goods due for export.

Among the seizures, goods in breach of trademark rights have accounted for the vast majority. In this respect, border protection has contributed greatly towards combating transnational infringement. What remains unclear is whether such protection should extend solely to manufactured goods made in China for export. There have been many conflicting opinions on this issue.

The controversy exists because the current Trademark Law is silent on whether the manufacture of trademarked goods should be deemed ‘infringement’. Opinions have varied among courts in different local jurisdictions. In the Nike and RBI cases, and in administrative litigation Hong Xin Trading Co, Ltd v Guangzhou Customs, the Guangdong and Zhejiang courts held that, without the consent of the registered trademark holder or other proprietor, applying a mark identical or confusingly similar to a domestically registered trademark shall constitute infringement under Article 52.1 of the Trademark Law.

China Trademark Law, customs measures, trademark infringement