CHINA Law and Practice Contributed by: Chuanhong Long, Bin Zhang, Cuicui Liang and Lei Fu, CCPIT Patent and Trademark Law Office
These factors are established by statute. 7.4 Prerequisites and Restrictions to Filing a Lawsuit For trade mark infringement cases, it is sug - gested that the plaintiff initiates trade mark infringement litigation based on a registered trade mark or an unregistered trade mark with sufficient evidence to prove that the mark had reached the well-known status. For copyright infringement cases, the plaintiff needs to submit evidence proving their ownership of the copy - right or neighbouring rights. The evidence may include drafts, original works, legally published materials, copyright registration certificates, cer - tificates issued by certification authorities, con - tracts establishing rights, administrative permits, and legally effective judgments determining the rights holder. Some rights holders may abuse their rights by sending infringement warnings to their competi - tors, without filing a lawsuit or taking any legal action in a reasonable time, leaving the accused party uncertain as to whether infringement has been constituted. In such cases, the accused party has the right to file a lawsuit for a declara - tion of non-infringement, seeking clarification on the existence of any infringement and eliminat - The first instance of trade mark or copyright infringement cases is generally handled by a primary people’s court. The second instance is handled by the people’s court at the next level. The party who deems that an effective judgment or ruling is erroneous may file a petition for retrial with the people’s court at the next higher level. Civil and administrative cases involving recog - nition of well-known trade marks fall under the ing the state of uncertainty. 7.5 Lawsuit Procedure Courts With Jurisdiction
original jurisdiction of IP courts and intermedi - ate people’s courts; and may also fall under the original jurisdiction of a basic people’s court upon approval by the Supreme People’s Court. Costs Incurred The costs incurred before filing a trade mark or copyright lawsuit are mainly fees rendered dur - ing evidence collection, which are investigation fees, notarisation fees, translation fees, etc. The parties in trade mark or copyright litigation are not required to be represented by a lawyer. The parties may retain one or two litigation repre - sentatives, who could be lawyers or legal ser - vice workers, close relatives or staff members and citizens recommended by the community, or an entity related to a party or citizens recom - mended by a relevant social group. Foreign Trade Mark or Copyright Owners Foreign trade mark or copyright owners can bring infringement claims in China. The trade mark should preferably be registered in China. How - ever, if the trade mark is not registered, it may still be protected under certain circumstances. Copyright registration is not required for foreign copyright owners in China. The work will still be protected under certain circumstances, such as if there is a copyright agreement between the author’s home country or country of permanent residence and China, or if the works are protect - ed under an international treaty to which both countries are signatories, etc. 7.6 Declaratory Judgment Proceedings and Other Protections for Potential Defendants An alleged trade mark or copyright infringer can initiate a lawsuit requesting confirmation of non-infringement. The lawsuit for confirmation of non-infringement may be filed by a specific party which is warned of infringement by an intellec -
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