WORLD TRADE
ORGANIZATIONIP/N/6/CHN/1
19 July 2002
(02-3992)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
CHECKLIST OF ISSUES ON ENFORCEMENT1
Responses from China
Civil and Administrative Procedures and Remedies
(a) Civil judicial procedures and remedies
1. Specify the courts which have jurisdiction over IPR infringement cases.
According to the Interpretations of the People’s Republic of China Civil Procedure Law made
by the People’s Supreme Court, patent cases of first instance are heard by the intermediate courts of
the municipalities where the People’s Governments of the Provinces, Autonomous Regions and the
municipalities directly under the central government are located, and those intermediate courtsdesignated by the People’s Supreme Court.
Trademark cases of first instance are heard by the people’s courts of intermediate level and
above.  The high courts can, according to the circumstances in its jurisdiction and subject to approval
of the People’s Supreme Court, designate 1-2 basic courts of large cities to hear the trademark cases
of the first instance.
The cases involving new varieties of plants of first instance are heard by the intermediate
courts of the municipality where the People’s Governments of the Provinces, Autonomous Regions
and the municipalities directly under the central government are located, and the intermediate courts
designated by the People’s Supreme Court.
The cases involving layout-designs of integrated circuits of first instance are heard by the
intermediate courts of the municipality where the People’s Governments of the Provinces,
Autonomous Regions and the municipalities directly under the central government are located, the
intermediate courts of the special economic zone and the intermediate courts of Dalian Qingdao,
Wenzhou, Fuoshan and Yantai.
2. Which persons have standing to assert IPRs? How may they be represented? Are there
requirements for mandatory personal appearances before the court by the right holder?
The intellectual property right holders and interested parties can claim their civil rights before
the people’s courts, and be represented according to the provisions of the General Principle of Civil
Law and the Civil Procedure Law of the People’s Republic of China.  There are no mandatory
requirements for personal appearance before the court by the right holder.
                                                     
1 Document IP/C/5.IP/N/6/CHN/1
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3. What authority do the judicial authorities h ave to order, at the request of an opposing
party, a party to a proceeding to produc e evidence that lies within its control?
A party could apply for perpetuation of evidence according to the Civil Procedure Law, as
well as Article 58 of the Trademark Law, Article 50 of the Copyright Law and the Interpretation bythe People’s Supreme Court Regarding the Application of Law in the Circumstance of Ceasing
Infringement of Exclusive Right of Trademark before Litigation and Perpetuation of Evidence.
4. What means exist to identify and protect confidential information brought forward as
evidence?
The confidential information submitted will be protected according to Article 66 of the Civil
Procedure Law and the Regulations by the People’s Supreme Court Regarding the Evidence in Civil
Procedure promulgated on 1 April 2002.
5. Describe the remedies that may be ordered by the judicial authorities and criteria,
legislative or jurisprudential, for their use ;
- injunctions;
- damages, including recovery of profits, and expenses, including attorney's fees;
- destruction or other disposal of infringing goods and materials/implements for
their production;
- any other remedies.
The remedies and the relevant criteria are provided as follows:
Injunction can be issued either pre or during the course of litigation or in the course of
decision according to Article 134 of the General Principle of the Civil Law, Article 61 of the Patent
Law, Article 57 of the Trademark Law, or Article 40 of the Copyright Law.
Compensation is provided in the Patent Law, Trademark Law and Copyright Law;  the losses
covered include the loss of profit, costs arising in relevant actions, and an appropriate amount of
attorney’s fee.
Seizure of infringing goods and the materials and equipment used in producing infringing
goods is provided in the General Principles of the Civil Law.
6. In what circumstances, if any, do judicial authorities have the authority to order the
infringer to inform the right holder of the identity of third persons involved in theproduction and distribution of the goods of services found to be infringing and of their
channels of distribution?
According to Article 64 of the Civil Procedure Law, if, for objective reasons, a party and his
agent ad litem  are unable to collect the evidence by themselves or if a people's court considers the
evidence necessary for the trial of the case, the people's court shall investigate and collect it.
7. Describe provisions relating to the indemnification of defendants wrongfully enjoined.
To what extent are public authorities and/or officials liable in such a situation and what
"remedial measures" are applicable to them?
The defendant wrongly enjoined can get compensation according to the State Compensation
Law of the People’s Republic of China.IP/N/6/CHN/1
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8. Describe provisions governing the length and cost of proceedings.  Provide any available
data on the actual duration of proceedings and their cost.
The time limit for cases of first instance shall be 6 months, and those of second instance shall
be 3 months.  The cases involving foreign element shall not be subject to the above restriction.
Any party filing a civil lawsuit shall pay court costs according to the rules.  For property
cases, the party shall pay other fees in addition to the court costs.
(b) Administrative procedures and remedies
9. Reply to the above questions in relation to any administrative procedures on the merits
and remedies that may result from these procedures.
The administrative procedure is parallel to that of the courts.  The competent authorities are
the local as well as central intellectual property right administrations, i.e. the Administrations of
Industry and Commerce, the Copyright Offices and the Patent Offices of local and central level.  Allthe decisions by those authorities are subject to judicial review.
Remedies that can be awarded by administrative authorities include fines, injunctions, and in
cases of trademark or copyright infringements, confiscation of infringing goods or equipments.
Provisional Measures
(a) Judicial measures
10. Describe the types of provisional measures that judicial authorities may order, and the
legal basis for such authority.
The provisional measures which courts may order include the order for ceasing infringing
action before filing a suit and the preliminary injunction during litigation.
11. In what circumstances may such measures be ordered inaudita altera  parte ?
According to the interpretations of the Supreme People’s Court, the measures shall be carried
out immediately after the adoption of which has be en ordered.  The people’s courts shall promptly
notify the person against whom the application for the measures are made, within a maximum of
5 days.
12. Describe the main procedures for the init iation, ordering and maintenance in force of
provisional measures, in particular relevant time-limits and safeguards to protect the
legitimate interests of the defendant.
A right holder or interested party may file application to the people’s courts for the initiation
of provisional measures.  The people’s courts would then examine the application and for those that
fulfil legal requirements, the courts would issue an order for ceasing infringing action, which shall be
implemented immediately.  The opposite party could apply for reconsideration of such order, and the
implementation of the order does not suspend during the course of reconsideration.  If the applicant
does not bring an action in 15 days from the date the court ordered the provisional measures, the courtshall cancel such measures.  If the applicant failed to bring an action, or cause losses to the opposite
party by its wrongfully made application, the opposite party could sue for compensation.IP/N/6/CHN/1
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13. Describe provisions governing the length and cost of proceedings.  Provide any available
data on the actual duration of proceedings and their cost.
For those applications for provisional measures fulfilling legal requirements, the people's
courts must make an order within 48 hours after receiving the application from a right holder or
interested party.  The fees shall be paid according to the rules issued by the Supreme People’s Court.
(b) Administrative procedures
14. Reply to the above questions in relation to any administrative provisional measures.
The competent authority can make an order for ceasing infringing action, and can seal up or
detain the infringing goods in trademark cases.  Applicants of provisional measures in an
administrative procedure do not need to pay any fees.
Special Requirements Related to Border Measures
15. Indicate for which goods it is possible to apply for the suspension by the customs
authorities of the release into free circulat ion, in particular whether these procedures
are available also in respect of goods which involve infringements of intellectual
property rights other than counterfeit trademark or pirated copyright goods as definedin the TRIPS Agreement (footnote to Article 51).  Specify, together with relevant
criteria, any imports excluded from the application of such procedures (such as goods
from another member of a customs union, goods in transit or de minimis imports).  Do
the procedures apply to imports of goods put on the market in another country by or
with the consent of the right holder a nd to goods destined for exportation?
According to the Regulations on Customs Protection of Intellectual Property Rights (the
Regulations), the intellectual property righyts protected by the Customs include right of trademark,
copyright and patent.  So, the right holders can apply to the Customs for suspension of any export and
import of goods infringing trademark, copyright (including related rights), and patent (including
inventions, industrial designs and utility models).   Except for the above-mentioned circumstances,
according to the Regulations on the Protection of  Olympic Symbol promulgated on 4 February 2002,
the Customs can also suspend the import and export of goods infringing the Olympic Symbol.
According to Article 33 of the Regulations, the border measures will not apply to the goods
carried or posted across the border by an individual within the reasonable amount for self-using.
All border measures apply to export goods.
16. Provide a description of the main elements of the procedures relating to the suspension
of the release of goods by customs authoritie s, in particular the competent authorities
(Article 51), the requirements for an application (Article 52) and various requirementsrelated to the duration of suspension (Artic le 55).  How have Articles 53 (security or
equivalent assurance), 56 (indemnification of the importer and of the owner of the
goods) and 57 (right of inspection and information) been implemented?
The main elements of the procedures:  (1) competent authorities:  according to the
regulations, to have their intellectual property rights protected by the Customs, the right holders shall
first record their intellectual property rights at the Customs General Administration, and apply for
suspension to the local Customs when they discover importation or exportation of the suspected
infringing goods.  (2) requirements for an application: according to the Regulations, the right holdersIP/N/6/CHN/1
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shall file a written application when recording their intellectual property rights or seeking suspension
of infringing goods.  The written application for recording shall include in formation regarding the
right holder, the intellectual property rights applied for protection, the license regarding the
intellectual property rights, and the suspected infringing goods.  And, the written application for
suspension shall include the name of the infringing goods, the importer and exporter, the port and dateof the importation and exportation, and relevant evidence of the infringement.  (3) Duration of
suspension:  in cases where the right holder needs to file a suit in a court or apply for action of other
administrative authorities, the duration of suspension is 15 days;  in cases where the Customs take
action on their own initiative, the duration of suspension is 3 days.  (4) Security or equivalent
assurance:   the right holder applying for suspension of infringing goods by the Customs shall deposit
security of equal value to the suspected goods.  (5) Indemnification of the importer and the owner of
the goods:  where the court or other competent administrative authorities find no infringement, theCustoms shall, at the requirements of the cour t or the competent authority, submit the security
deposited by the right holder to the court to compensate for the losses of the relevant party arising
from the improper application.  (6) Right of inspection and information:  the right holder can inspect
the infringing goods.  The Customs shall notify the right holder in cases of suspending, releasing,
confiscating or destroying infringing goods.
17. Describe provisions governing the length and cost of proceedings.  Provide any available
data on the actual duration of proceedings and their cost.  How long is the validity of
decisions by the competent authorities for the suspension of the release of goods into free
circulation?
The length and costs of proceedings:  (1) length  of recording procedure:  the Customs General
Administration shall make decision within 30 days fr om the date of acceptance of the application for
recordation;  (2) costs:  when applying for recording, the right holder shall pay 800 RMB
(approximately 100 USD).  In applying for suspension of goods to the local Customs, the right holdershall pay for the costs of storing and disposing of goods.
18. Are competent authorities required to act upon  their own initiative and, if so, in what
circumstances?  Are there any special provisions applicable to ex officio  action?
According to Article 18, the Customs shall be entitled to make de tention on their own
initiative where they discover import or export g oods suspected of infringing the intellectual
property rights which have been recorde d.  This often happens in cases involving
infringement of trademark and copyright.
19. Describe the remedies that the competent authorities have the authority to order and
any criteria regulating their use.
According to Article 23 of the Regulations, the suspected infringing goods detained shall be
confiscated by the Customs where the infringement is determined.  According to Article 24 of theRegulations, the confiscated goods infringing copyrights shall be destroyed, those infringing
trademark shall be destroyed where any removal or obliteration of the infringing trademarks is
impossible;  or be subject to some specified application where the infringing trademark can be
removed or obliterated.
According to the Customs Law and the Regulations, for the exporter and importer of the
infringing goods, the Customs shall levy a fine not exceeding the value of the infringing goods;  forthe importer and exporter not declaring the relevant intellectual property information on the import or
export goods, the Customs can also levy a fine not exceeding the value of the goods.IP/N/6/CHN/1
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Where there’s any criminal offence, the case shall be transferred to the police.
Criminal Procedures
20. Specify the courts which have jurisdiction over criminal acts of infringement of IPRs.
The people’s courts of the first instance have jurisdiction over criminal acts of infringement
of intellectual property rights.
21. In respect of which infringements of which intellectual property rights are criminal
procedures and penalties available?
According to the Criminal Law of the People’s Republic of China, the infringements that are
subject to criminal penalty include, imitation of registered trademark, sales of products with faked
trademarks, manufacturing and sales of copies of illegally made registered trademarks, imitation of
patents, infringement of copyrights, sales of infringing copies, and infringement of commercial
secrets.
22. Which public authorities are responsible fo r initiating criminal proceedings? Are they
required to do this on their own initiative and/or in response to complaints?
The procurational body is responsible for initiating criminal proceedings.  They are required
to do so on their own initiative.
23. Do private persons have standing to initiate criminal proceedings and, if so, who?
Except for the intellectual property right crimes that seriously injure the society orders or
national interests, the victim of an intellectual prop erty right crime can initiate criminal proceedings in
the courts.
24. Specify, by category of IPR and type of infringement where necessary, the penalties and
other remedies that may be imposed:
- imprisonment;
- monetary fines;
- seizure, forfeiture and destruction of infringing goods and materials and
implements for their production;
- other.
Imprisonment may be imposed in cases of all seven kinds of intellectual property right
crimes, with a maximum term of 7 years.
Monetary fines may be imposed concurrently or independently in all seven kinds of
intellectual property right crimes, and can also be imposed on units that committed intellectual
property right crimes.
Seizure, forfeiture and destruction of infringing goods and materials and implements for their
production are not listed as punishments in the Criminal Law of the People’s Republic of China.IP/N/6/CHN/1
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25. Describe provisions governing the length and any cost of proceedings.  Provide any
available data on the actual duration of proceedings and their cost, if any.
The people's courts shall pronounce the judgement on a case of public prosecution within one
month or no later than one and a half months after accepting it for trial. The people's courts of secondinstance shall conclude the trial of an appellant or protested case within one month or no later than
one and a half months.
No fees are charged in a criminal procedure.
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