Protecting Trademark Rights in China through Litigation

Protecting Trademark Rights in China through Litigation

By Timothy Lau, Kyle Niemi, & Lanna Wu

Excerpt from, Protecting Trademark Rights in China through Litigation, 47 Stan. J Int'l L. 441 (Summer 2011)

The People's Republic of China ("China") has long been known for the rampant trademark infringement that takes place within its borders. 1 As China increasingly establishes itself as one of the largest economies and one of the biggest and most important markets, however, foreign entities hoping to protect their trademarks within China must adopt specialized strategies to meet the challenges presented by the Chinese system and by the market. This note begins by examining the structure of trademark law in China and drawing comparisons to American law. It then examines the law as applied by the Chinese courts in several trademark infringement disputes between foreign entities and local infringers, and recommends trademark enforcement and protection strategies for foreign entities operating in the Chinese market.

I. Basic Structure of Trademark Law in China
China's Trademark Law was adopted in 1982, 2 and experienced occasional amendments over the years, the most recent being in 2001, to meet China's treaty obligations arising from its ascension into the World Trade Organization (WTO). The law sets forth the role of the government in the area of trademarks by establishing the Trademark Office for the registration and administration of trademarks and a Trademark Review and Adjudication Board for handling trademark disputes, both under the umbrella of the State Administration for Industry and Commerce. 3 The law also sets forth the scope of the rights of the trademark owners, defines trademark infringement activities, and provides means for the owners to enforce their trademark rights. 4

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