Trademark Enforcement in China

According to an article by Mark S. Sommers and Virgina L. Carron, new laws and decisions of the Supreme People's Court have improved trademark enforcement in China. First, the trademark owner may now obtain an injunction or a temporary restraining order to prevent the distribution of counterfeit goods and the destruction of evidence before hearings, provided the trademark owner can show irreparable harm. Second, trademark owners are allowed to file complaints with the courts if the potential infringer refuses to attend meditation, or if the mediation fails. Third, instead of allowing officials to arbitrarily set fines, courts may assess damages based on the actual profits made from the infringement or the losses suffered by the trademark owner from the infringement, including the owner's reasonable expenses in policing the infringement. Because infringers rarely keep accurate financial records of their activities, the trademark owner's profits per item can be used in the calculation. However, those that unknowingly merely resold counterfeit goods are immune from damages and confiscation of the counterfeit goods and the machinery used to make them remains in the court's discretion.