The China National Intellectual Property Administration (CNIPA) on March 31 released a second list of exemplary administrative enforcement cases. The list is meant to follow up the first list of 10 exemplary cases released by the government agency on December 14, 2020. Different from most other jurisdictions, China allows for two distinct procedures by which intellectual property assets may be protected, one judicial and the other administrative. The two-pronged regime entitles intellectual property holders to one more choice of administrative actions to enforce their rights. The administrative route can provide a quick, efficient, a low-cost remedy, especially when it is not likely that the infringer will contest the infringement allegations.
Rui'an Haoyun Machinery Co., Ltd. (瑞安市豪运机械有限公司) in December 2017 brought an administrative action against Guo with the Wenzhou Intellectual Property Administration of Zhejiang province accusing him of infringing its patent Chinese Patent No. 201620913636.X, which covers a three-dimensional packaging machine transmission device. The government agency in December 2018 handed down an administrative ruling ordering Guo to stop the production and distribution of the infringing products. The plaintiff in July 2019 reported the defendant’s continued infringement to the agency, which in turn handed down a second administrative ruling ordering Guo to stop the infringement. To counter the ruling, Guo filed an administrative lawsuit with the Ningbo Intermediate People's Court of Zhejiang province and the court rejected his claim. Guo appealed the court ruling to the Supreme People’s Court and then withdrew the appeal. The Wenzhou Intellectual Property Administration in February 2021 instituted an investigation on Guo’s infringement of the same patent and ruled on the defendant’s repeat infringement applying Article 51 of the Patent Ordinance of Zhejiang Province (《浙江省专利条例》). Down the line, the Wenzhou Administration for Market Regulation of Zhejiang province, as a law enforcement agency, issued an administrative order to impose a fine on Guo applying Article 46 of the Patent Ordinance of Zhejiang Province.
There have been no provisions about repeat infringement in the Patent Law of the People’s Republic of China and the Implementing Regulations of the Patent Law (《专利法实施细则》). The China National Intellectual Property Administration in 2010 issued the Measures for the Enforcement of the Patent Administrative Law (《专利行政执法办法》), which had provisions about repeat infringement included and came into force in 2011. Similar provisions about it have also been introduced by local legislative bodies.
Tsingtao Brewery (Rongcheng) Co., Ltd. (青岛啤酒（荣成）有限公司) in March 2020 brought an administrative action against a Weihai city-based beer brewer with the Weihai Administration for Market Regulation of Shandong province accusing it of infringing its Tsingtao Beer registered trademarks No. 1304176 and No. 1351701. The complaint said the defendant bottled its own branded beer in the recycled Tsingtao beer bottles with the plaintiff’s infringed trademarks stylized in relief remaining on their necks. The government agency held that the defendant liable for the failure to have Tsingtao Beer trademarks removed and the potential consumer confusion due to the unintended false association created with it between its products and the defendant’s products.
The agency handed down an administrative ruling to impose sanctions on the defendant applying Article 57 Paragraph 7 of the Trademark Law of the People’s Republic of China.
Markor International Home Furnishings Co., Ltd. (美克国际家居用品股份有限公司) in May 2020 brought an administrative action against a Shanghai-based furnishing company with the Shanghai Intellectual Property Administration accusing it of offering to sell certain products infringing Markor’s design patents. The parties opted to resolve the dispute through mediation and agreed to settle subsequent to the mediation proceeding presided over by the government agency in June 2020 and signed a settlement agreement administered by it about three months later.
The parties filed applications for judicial confirmation of the settlement agreement signed with the Shanghai Intellectual Property Court in October 2020. The court handed down a ruling to confirm the agreement upon investigation, which entitles Markor to enforce its rights to the infringed design patents.
China’s Supreme People’s Court issued the Opinions of the Supreme People's Court on People's Courts Deepening the Reform of Diversified Dispute Resolution Mechanisms (《关于人民法院进一步深化多元化纠纷解决机制改革的意见》) in 2016. It provides that any party to a settlement agreement administered by a government agency is entitled to its judicial confirmation. Judicial confirmation has been invented to empower the two-pronged regime of administrative protection and judicial enforcement in China.
The full text is available here.