CHINA Trends and Developments Contributed by: Qiang Ma, Yi Xu and Lei Wu, Jingtian & Gongcheng
Introduction of a new criminal threshold for counterfeiting registered service trade marks Taking into account the characteristics of the service industry, the criminal threshold for counterfeiting reg - istered service trade marks is determined based on the amount of illegal gains after deducting the costs of products used in the provision of the services, rather than the total amount of illegal business turnover. Clarification of the definition of “using two or more registered trade marks” This is defined as the use of two or more registered trade marks that identify different sources of goods or services. For example, the registered trade marks “ 娃 哈哈 ” and “Wahaha” both refer to the Wahaha compa - ny and indicate the same source of goods; therefore, such use should not be identified as the use of “two or more registered trade marks”. Lowering the criminal liability threshold for trade mark label offences and repeat infringers The threshold for criminal liability has been lowered for offences involving the manufacture or sale of illegally manufactured registered trade mark labels, as well as for offenders who have been subject to criminal or administrative penalties for trade mark infringement within the past two years. This reflects a judicial poli - cy trend towards strictly cracking down on upstream source offences and repeat trade mark infringers. Copyright Infringement Issues Arising From Generative Artificial Intelligence Legal disputes surrounding copyright issues related to generative artificial intelligence (GenAI) centre on two main areas: (i) whether content generated by AI can be copyrighted, and (ii) issues of copyright infringe - ment that may arise from the use of generative AI. Currently, Chinese legislation lacks clear regulations addressing these concerns. In recent years, Chinese courts have issued varied judgments based on the specific circumstances of individual cases. Both top - ics continue to be significant and contentious in legal academic discussions within China. This chapter of the guide will concentrate on the sec - ond issue, providing a preliminary analysis and dis - cussion on how copyright infringement is determined in the context of GenAI.
Further Clarification of Trade Mark Criminal Protection Trade mark-related criminal cases account for the largest proportion of intellectual property criminal cases, approximately 90%. In April 2025, the Supreme Court and the Supreme Prosecutor’s Office issued the Interpretation on Handling Criminal Cases Involving Infringement of Intellectual Property Rights (the “Inter - pretation”), further clarifying issues that are highly dis - puted in practice. Providing a practical and strict interpretation of terms such as “the same product/service” and “trade mark without substantial visual differences from the registered trade mark” For situations where the product name used by the defendant differs from the designated product name of a registered trade mark, a comprehensive judgment should be made from the perspective of the general public’s understanding, considering factors such as: • product function; • use; • main ingredients; • target consumers; and • sales channels. For instance, if the trade mark is registered on “ferti - lisers” and the alleged infringing product is “organic fertiliser”, which is a type of fertiliser, they could be considered the same product based on public per - ception. The definition of “trade mark without substantial vis - ual differences from the registered trade mark” shall be limited to cases with minor differences, such as changes in text case, spacing, or small graphic dif - ferences. If the trade mark differs in pronunciation, appearance or meaning in any way, it should not be considered substantially identical. In practice, where a “prefix” or “suffix” is added to a registered trade mark, a strict standard should be applied. Only where the added elements are limited to non-distinctive word - ing, such as generic product names or model descrip - tions, and do not affect the distinctive features of the registered trade mark, may the marks be regarded as “trade mark without substantial visual differences from the registered trade mark”.
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