Article 1 In order to promote strict, standardized, fair, and civilized enforcement of trademark infringement cases, safeguard the legitimate rights and interests of businesses, and foster a market environment conducive to fair competition, these Measures are formulated in accordance with the Trademark Law of the People's Republic of China, the Regulation on the Implementation of the Trademark Law, and other laws and regulations.
Article 2 The trademark administrative enforcement authorities shall, in the handling of a trademark infringement case, apply these Measures when the actions of parties involved have been determined as constituting trademark infringement.
Article 3 The calculation of illegal business revenue shall adhere to the principles of legality, reasonableness, objectivity, and fairness.
Article 4 Illegal business revenue refers to the total value of infringing goods involved in trademark infringement committed by a party or the business revenue generated from such infringement.
Article 5 The value of infringing goods already sold is calculated based on the actual sales price.
The value of infringing goods have not yet been sold is calculated using the actual average sales price of the infringing goods that has been ascertained; where the actual average sales price cannot be ascertained, the value shall be calculated based on the marketed price.
Where the actual sales price cannot be ascertained or the marketed price is unavailable, the calculation shall be based on the mid-market price of the infringed goods during the infringement period.
For goods that have been manufactured but without an infringing registered trademark being attached thereto, if there is substantial and sufficient evidence showing that the goods will infringe another party’s exclusive right to use a registered trademark, their value should be included in the illegal business revenue .
Article 6 The mid-market price of the infringed goods shall be determined based on the reference retail price for the same goods published by the infringed party; in the absence of such a retail price, the following measures shall be adopted:
(1) If multiple businesses sell the same type of infringed good in the market, the mid-market price is determined by averaging the sampled retail prices of some of these businesses; if only one business sells the good, the mid-market price is determined based on that business's retail price.
(2) If there are no infringed goods of the same type sold in the market, the mid-market price is determined based on the middle price of previously sold infringed goods of the same type in the market, or the mid-market price of infringed goods of the same category being offered for sale in the market which are identical or similar to the infringing goods in functionality, purpose, main materials, design, configuration, or any other aspect.
Where it is difficult to determine the mid-market price according to the provisions of the preceding paragraph, it may be determined by a price determination agency.
Statements from the parties involved and the mid-market price of the infringed goods provided by the trademark owner may serve as a reference after they are verified based on other relevant evidence which have been examined.
If the parties involved have any objection against the calculated mid-market price of the infringed goods, they must provide evidence to support their claims.
Article 7 In subcontracting operation involving labor and materials, where the contractor uses goods that infringe the exclusive right to a registered trademark, the illegal business revenue shall be calculated based on the actual sales price of the infringing goods; where the infringing goods are not independently priced, the calculation shall be based on the proportional value in such subcontracting operation; where the value proportion cannot be determined, the calculation shall be based on the mid-market price of the infringed goods.
Article 8 For complimentary goods that infringe on another party's exclusive right to use a registered trademark, the illegal business revenue shall be calculated based on the actual purchase price or manufacturing cost of the goods; if the actual purchase price or manufacturing cost cannot be determined or if the goods is a non-standard good, the calculation shall be based on the marketed price or the mid-market price of the infringed goods.
Article 9 For refurbished goods that infringe on another party's exclusive right to use a registered trademark, the illegal business revenue shall be calculated based on the overall value of the infringing goods. If the refurbished goods themselves do not infringe on another party's exclusive right to use a registered trademark but its components or accessories do, the illegal business revenue shall be calculated based on the value of the infringing components or accessories.
Article 10 For infringement actions falling under Article 57(4) of the Trademark Law, the calculation of illegal business revenue is based on the actual sales price of the infringing mark.
Article 11 Where someone deliberately providing assistance for the infringement of another party's exclusive right to use a registered trademark, the illegal business revenue shall be calculated based on the revenue from such assistance in the infringement; where such revenue is in absence, the matter shall be handled as if there were no illegal business revenue.
Article 12 For rental goods infringing on another party's exclusive rights to use registered trademark, the illegal business revenue shall be calculated based on the rental avenue.
Article 13 Where infringement of another party's exclusive rights to use a registered trademark occurs in advertising campaigns and the infringing goods cannot be verified, the matter shall be handled as if there were no illegal business revenue.
Article 14 Where a licensor and a licensee jointly infringe on another party's exclusive rights to use a registered trademark, the calculation of illegal business revenue shall be according to provisions of Articles 5 and 6 of these Measures. Where the licensor assists the licensee in infringing on another party's exclusive rights to use a registered trademark, the illegal business revenue shall be calculated based on royalties; if the trademark is licensed gratuitously, the matter shall be handled as if there were no illegal business revenue.
Article 15 Where the actual illegal business revenue cannot be verified according to the above provisions, the matter shall be handled as if there were no illegal business revenue. For cases where only partial illegal business revenue can be verified, the matter shall be handled according to the verified illegal volume.
Article 16 Where the party involved provides adequate evidence to prove that the sales figures of infringing goods was increased by false sales measures such as false purchases, the sales figures shall not be included in the illegal business revenue.
Article 17 In cases involving reverse transfer from criminal organs to administrative organs, where there is a discrepancy in the determination of illegal business revenue between administrative organs and public security organs, it may be resolved based on the investigation conducted by the administrative organs, in accordance with the provisions of these Measures.
Article 18 These Measures are to be interpreted by the China National Intellectual Property Administration and the State Administration for Market Regulation.
Article 19 These Measures shall come into effect from the date of issuance.
