Provisions on Evidence for Trademark Administrative Enforcement
Article 1
These Provisions are formulated in accordance with the Administrative Penalty Law of the People's Republic of China, the Administrative Compulsion Law of the People's Republic of China, the Administrative Procedure Law of the People's Republic of China, the Civil Procedure Law of the People's Republic of China, the Trademark Law of the People's Republic of China, the Implementing Regulations of the Trademark Law of the People's Republic of China and other relevant provisions, in order to strengthen the guidance of trademark administrative enforcement and regulate the collection, examination, and determination of evidence,
Article 2
These Provisions shall apply to the collection, examination, and determination of evidence by the departments responsible for trademark administrative enforcement in the process of investigating and handling trademark violation cases.
For electronic data evidence otherwise prescribed in the Interim Provisions on Electronic Evidence Collection in Market Supervision Administrative Enforcement, such provisions shall prevail.
Article 3
The term “evidence for trademark administrative enforcement” (hereinafter referred to as “evidence”) in these Provisions refers to materials used by departments responsible for trademark administrative enforcement to prove the facts of trademark cases and make a decision.
Article 4
Evidence includes the following types:
1. documentary evidence;
2. physical evidence;
3. audio-visual materials;
4. electronic data;
5. witness testimony;
6. statements of the parties;
7. expert opinions; and
8. on-site transcripts and survey transcripts.
Evidence must be verified to be true before it is taken as a basis for determining case facts. Evidence obtained by illegal means may not be used to determine case facts.
Article 5
Documentary evidence refers to written materials that express facts related to a case in the form of text, symbols, graphics, etc., which includes, but is not limited to, basic certifications of the exclusive rights of a registered trademark such as valid trademark registration certificates, trademark renewal certificates, certificates of change in trademark registration, trademark assignment certificates, certificates for trademark licensing, and trademark files stamped with the official seal of the CNIPA for trademark registration, valid identity documents, business licenses, transaction vouchers, bills, account books, transaction contracts, product manuals, brochures, price lists, and other documents bearing the trademark, as well as trademark application documents suspected of malicious trademark registration, and agency contracts, etc.
The preceding paragraph also includes printed copies of electronic evidence, such as electronic trademark registration certificates, electronic business licenses, and electronic bills.
The identification opinion of the trademark owner regarding the goods or services involved is considered documentary evidence. The opinion shall include the method, basis, and results of the identification. If the method of identification needs to be kept confidential, it may be not specified, but a statement shall be made with a written commitment to bear corresponding responsibilities.
The collection of documentary evidence shall meet the following requirements:
1. The original document shall be collected; if collection of the original is difficult, a duplicate or transcript verified to be consistent with their originals may be collected, with a statement that it has been “verified to be consistent with the original,” the date of issuance, the source of the evidence shall be indicated, and the signature or seal of the party that provides or collects the evidence shall be affixed.
2. For collection of duplicates or transcripts of original documentary evidence kept by relevant departments, the source shall be indicated, and the department shall affix its seal after verifying the accuracy;
3. For the collection of financial statements, purchase-sale receipts, account books, etc., explanatory materials shall be accompanied and confirmed by the provider with a seal; and
4. Officially published documentary evidence available for inquiry may be collected in the form of printed copies, transcripts, etc., with the query source and time indicated, and it shall be signed or sealed by the collector.
Article 6
Physical evidence refers to evidence that proves the facts of the case by the appearance, properties, texture, and specifications of objective material entities such as objects and traces. This includes, but is not limited to, goods and trademark logos that infringe the exclusive right of a registered trademark or use the trademark in violation of the trademark management order, as well as materials, tools, and equipment that are mainly used to manufacture infringing goods and forge registered trademark logos.
The collection of physical evidence shall meet the following requirements:
1. The original items shall be collected; if collection of the originals is difficult, a duplicate verified to be consistent with the original or photo, video, or other evidence proving the physical evidence may be collected; if photos of the business sites, the labels of infringing goods, packaging or inventory, among others, are involved, the parties concerned shall verify and indicate that they are consistent with the originals, and the collector shall indicate the date, source, and affix the signature or seal at the same time;
2. If the original object is a large number of similar objects, collection may be conducted by sampling, but the samples should be able to more comprehensively reflect the actual use status of the trademark, and the number of similar objects should be counted and recorded; and
3. For evidence obtained by sampling via online, telephone purchases, or other means, the processes of trading, commodity unpacking inspection, and sample sealing shall be recorded by photographing, screenshots, audio and video recordings, and other methods.
Article 7
Audio-visual materials refer to evidence that proves the facts of the case by the use of audio recording, video recording, scanning and other technical means to convert sound, images and data into physical signals on various recording media. This includes, but not limited to, audio recording materials, video recording materials, etc.
The collection of audio-visual materials shall meet the following requirements:
1. The original carrier of relevant material shall be collected; if collection of the original carrier is difficult, a duplicate may be collected;
2. The method of production, production time, and the producer, etc., shall be indicated; and
3. Audio materials shall be accompanied by a written transcript of the audio content, and video materials may be accompanied by a written transcript or summary of the relevant parts of the case.
Article 8
Electronic data refers to information that proves the facts of the case in digital form stored, processed, and transmitted, which includes, but not limited to, the following information and electronic files:
1. Electronic files and their attribute information of documents, images, audio recording materials, video recording materials, etc.;
2. Information published on webpages, blogs, forums, and other online platforms;
3. User identity information such as user registration information, identity authentication information, digital signatures, etc.;
4. User behavior information such as transaction records, browsing records, and operation records;
5. System operation information such as system logs, application logs, and security logs;
6. Behavioral tools information such as source code, tool software, and running scripts; and
7. Case-related information files stored in various network application services, etc.
Article 9
When collecting electronic data, transcripts shall be made, in which the following information shall be indicated:
1. The name of the original storage medium, storage location, signal on/off status, and whether any compulsory measures were taken;
2. The method and process of collection, and the name of the medium used for storing the collected electronic data;
3. The name, category, and file format of the collected electronic data; and
4. The integrity verification values of the electronic data evidence, etc.
Article 10
In any of the following circumstances, personnel handling the case may fix relevant electronic data through printing, photographing, screenshots, screen recording, video recording or other methods:
1. Where the original storage medium cannot be sealed or seized and electronic data cannot be collected;
2. Where there is any electronic data self-destruction function or device, and it is necessary to fix the evidence promptly; or
3. Where it is necessary to display or view the relevant electronic data on-site.
Article 11
Witness testimony refers to statements made by witnesses to departments responsible for trademark administrative enforcement that can prove the facts of the case. This includes statements made by the trademark owners and other entities or individuals to the department responsible for trademark administrative enforcement regarding the relevant information that they have access to.
Witness testimony shall meet the following requirements:
1. The witness’s name, age, gender, occupation, address, contact telephone number, and other basic details shall be indicated;
2. The witness’s signature or seal shall be affixed;
3. The date of issuance shall be indicated; and
4. Documents proving the witness’s identity, such as a power of attorney, a duplicate of the business license with an affixed official seal, or a photocopy of a resident ID, shall be attached.
Any person who cannot express his will correctly cannot serve as a witness.
A person with no capacity for civil conduct or with limited capacity for civil conduct may serve as a witness with respect to facts to be proved that are appropriate to their age, intellectual status, or mental health condition.
Article 12
The statements of the parties refer to written or oral statements regarding the facts of the case made to the department responsible for trademark administrative enforcement. This includes written and oral statements made by the parties or their entrusted agents during investigations or interview.
The statements of the parties shall meet the following requirements:
1. For written statements, the original shall be provided, indicating the name, age, gender, occupation, and address of the declarant, and the date shall be indicated, with the declarant’s signature or seal affixed;
2. For oral statements, the department responsible for trademark administrative enforcement shall prepare interview transcripts; and
3. Documents proving the identity of the parties, such as photocopies of their resident identity cards, shall be attached.
Article 13
Expert opinions refer to opinions issued by qualified authentication institutions on specialized issues such as the main ingredients, functions, and uses of goods.
Expert opinions shall meet the following requirements:
1. The client and the matters entrusted for authentication, the relevant materials submitted to the authentication institution, the basis for authentication and the scientific and technological means used, and the qualifications of the authentication institution and the expert shall be specified;
2. The signature of the authentication expert and the seal of the authentication institution shall be included; and
3. For expert opinions obtained through analysis, an analysis process leading to the expert opinion shall be explained.
Article 14
On-site transcripts and survey transcripts refer to the records made by the personnel handling the case during on-site surveys, inspections, measurements, drawings, and photographing, among others, of premises or items related to the case. These shall include the time and place of the on-site inspection, information about the inspector and the parties involved, and facts ascertained on-site, and shall be affixed with the signature or seal by the case handling personnel and the parties involved.
If a party refuses to sign or is unable to sign, the reason shall be indicated. If any other person is present, such a person may affix his or her signature.
Article 15
Extraterritorial evidence mainly refers to official documentary evidence, evidence of qualification, authorization and identity documents of overseas rights holders, and other evidence related to the facts of the case formed outside the territory of the People’s Republic of China, including extraterritorial evidence provided by the parties as well as evidence collected or obtained from abroad by the enforcement authority through relevant channels.
The source of extraterritorial evidence shall be indicated, and authentication formalities shall be undergone as stipulated by the relevant treaty concluded or acceded by the People's Republic of China. For evidence formed in the Hong Kong Special Administrative Region, Macao Special Administrative Region, or the Taiwan Region of the People's Republic of China, the relevant procedures for authentication shall be undergone.
If any extraterritorial evidence involves any documentary evidence or audio and video recording in a foreign language, a Chinese translation provided by a qualified translation institution or any other accurate translation thereof shall be attached, and the seal of the translation institution or signature of the translator shall be affixed.
Article 16
The department responsible for trademark administrative enforcement may directly recognize the following facts:
1. Natural laws and theorems;
2. Well-known facts;
3. Facts deduced from legal provisions;
4. Facts inferred from known facts and daily life experience;
5. Evidence materials obtained in accordance with the law during the pre-filing inspection or supervision and inspection process, which meet the requirements for evidence collection after verification
6. Facts confirmed by effective decisions or rulings of administrative authorities, effective rulings of arbitration institutions, basic facts determined by legally effective judgments of the people's courts, facts proved by valid notarized documents, and other legally proven facts; and
7. Matters recorded in effective official documents issued by government authorities within their scope of authorities.
The preceding paragraph shall not apply if either party has opposing evidence sufficient to overturn the facts specified in the aforesaid subparagraphs (2) through (7).
Article 17
Evidence materials transferred by judicial authorities and other administrative enforcement authorities, once reviewed and determined to be true, lawful, and relevant to the facts of the case, shall serve as the basis for making the final decision.
Evidence issued by a third-party institution, or electronic data related to the case and evidence not held or possessed by the parties collected and extracted by other state authorities, that are received or retrieved by the department responsible for trademark administrative enforcement in accordance with the law, may be used as evidence after they are verified to be true.
Article 18
Unless influenced by external factors, evidence provided by informants or complainants, if clearly accepted by the parties, may be used as a basis for determining case facts. However, for facts involving national interests, public interests, or others’ legitimate rights and interests, the department responsible for trademark administrative enforcement may order the informants or complainants to provide or supplement relevant evidence. If a party raises objections but do not provide sufficient evidence to support the objection, the probative value of the evidence may be assessed and determined based on the circumstances of the entire case.
Article 19
The probative value of multiple pieces of evidence proving the same fact can generally be determined according to the following circumstances:
1. Official documents produced by state authorities and other functional departments according to their respective functions and powers shall take precedence over other documentary evidence;
2. Expert opinions, on-site transcripts, archival materials, and notarized or registered documentary evidence shall take precedence over other documentary evidence, audio-visual materials, and witness testimony;
3. Originals shall take precedence over copies or duplicates;
4. Testimony of other witnesses shall take precedence over testimony provided by witnesses who are the party’s relatives or interested parties;
5. Multiple types of evidence with consistent content that can corroborate each other shall take precedence over a single isolated piece of evidence.
Article 20
The department responsible for trademark administrative enforcement shall review the eligibility of the person issuing the identification opinion and the authenticity of the opinion. If no opposing evidence is presented by the party to overturn the identification opinion, the department responsible for trademark administrative enforcement shall accept the opinion as evidence. If contradictory identification opinions are issued by the same person without reasonable ground, such identification opinions shall not be adopted.
Trademark registrants, exclusive licensees, sole licensees, and their entrusted agents shall be qualified to issue identification opinions on whether the products are produced by the right holders or with licenses granted by the right holders. Ordinary licensees of registered trademarks, if explicitly authorized by the trademark registrants, are qualified to issue identification opinions on whether the involved products are manufactured by them.
If a party raises an objection against the trademark infringement facts, the department responsible for trademark administrative enforcement shall not determine, solely based on the right holder’s identification opinion, that the infringement is constituted, but shall make a comprehensive judgment in consideration of other evidence. If other evidence is sufficient to prove facts of trademark infringement, a trademark infringement may be determined without the right holder’s identification opinion.
Article 21
If a party admits illegal facts in his or her statement but later retracted it, the party shall be required to present counter-evidence or clues to counter-evidence. If counter-evidence cannot be provided or if the clues to counter-evidence cannot be verified or are found to be untrue, the original admission may be accepted and the facts of the violation of law shall be determined in consideration of other evidence.
If the self-admitted illegal facts are inconsistent with the facts that have been ascertained, the department responsible for trademark administrative enforcement shall not confirm them.
Article 22
The "department responsible for trademark administrative enforcement" referred to in these Provisions refers to the market supervision departments, intellectual property administrative departments and comprehensive enforcement departments, that are responsible for trademark administrative enforcement functions according to the division of functions of governments at all levels.
Article 23
These Provisions shall be subject to interpretation by the State Administration for Market Regulation and the China National Intellectual Property Administration.
Article 24
These Provisions have come into force since January 1, 2025.
