Legal Remedies on Counterfeited Foreign Products

By: Sino-Link Consulting Click author's name for more of his/her articles

Due to the vast market and the open policy in China, more and more foreign businessmen have been entering into China's market since 1980s; they expanded in China's market and have already gained a large share. However, neither the FERRERO ROCHER which entered in China's market in 1980s, nor the "Crocs" shoes which are now sweeping China, can avoid being imitated. With cheap price and similar appearance, the imitations immediately erode the China market share of foreign products, and bring tremendous negative influence on them.

In face of such serious situation, we have to consider about the current anti-counterfeiting measures in China, and this paper will exteriorly introduce the protections on product brands or products themselves as follows.

Our current laws protecting product brand and products themselves generally include the following two aspects, one is to restraint operators to manufacture or imitate, and the other one is to protect the intellectual property rights of registered trademarks, well-known trademarks as well as other intellectual property involved in the products.

1. Regulations on prohibiting unfair trade

In 1993, China promulgated Law of the Peoples Republic of China against Competition by Inappropriate Means, which was put into effect on December.1st in the same year. This law aims to stop the unfair trade and protect the legitimate interests of the operators and consumers. Article 5 explicitly stipulated that unfair means can not engage in trade, specifically: the operators cannot apply the following unfair means in transaction to damage the competitors:

(1). Counterfeiting the registered trademark of another;

(2). Using the specific or similar name, package and decoration of well-known goods without permission to confuse the well-known commodities, making the consumers lose judgment;

(3). Using other's enterprise name to confuse the costumers;

(4). Forging or infringing upon quality marks such as certification marks and marks for fine quality products, which makes false or misleading propaganda about their commodities or services.

2. Regulations on trademark protection

There are special sections in Trademark Law protecting the trademark, and Article 52 lists the behaviors infringing trademarks. Any following action may conduct registered trademark infringement:

(1). Using a trademark which is identical with or similar to the registered trademark on the same kind of commodities or similar commodities without a license from the registrant of that trademark;

(2). Selling the commodities that infringe upon the right to exclusive use of a registered trademark;

(3). Forging or making without authorization labels of a registered trademark of another person or selling labels of a registered trademark that is forged or made without authorization;

(4). Changing the registered trademark of a product without the agreement of possessor and reselling the product in market;

(5). Causing other damage to the right to exclusive use of a registered trademark of another person.

Once registered trademark is infringed, the trademark registrant or interested party may apply to a People's Court or request Administration Bureau for Industry and Commerce to stop the infringement, refund the damages and destroy or confiscate the infringing products.

In addition, there are also clear legal norms on the patent protection of intellectual property, which will not be listed hereon. 1

Therefore, once the foreign businessmen find their products being counterfeited, they should actively protect their rights, such as unit the ministry of commerce to crack down on counterfeit goods in market, meanwhile, investigate and collect evidence on the counterfeiting behaviors to lodge a complaint.

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1.Refer to Chapter 7 in The Patent Law: Protection of Patent Rights