CNIPA & SAMR Jointly Release Measures for the Calculation of Illegal Turnover in Trademark Infringement Cases

The China National Intellectual Property Administration (CNIPA) and the State Administration for Market Regulation (SAMR) have jointly released the Measures for the Calculation of Illegal Turnover in Trademark Infringement Cases (商标侵权案件违法经营额计算办法). 

In China, the calculation of illegal turnover is an important basis for law enforcement agencies to impose administrative penalties in trademark administrative protection cases. To provide the guidance for standard calculation nationwide and to address the controversies in calculating illegal turnover in complex infringement situations, the Measures were formulated, on the basis of the Trademark Law, Implementing Regulations of the Trademark Law and other relevant provisions, with the incorporation of useful experiences from the practice in trademark infringement cases over the years.

The Measures, consisting of 19 articles, apply where the party's behavior has been determined as constituting trademark infringement during the proceedings of a trademark infringement case handled by the trademark administrative enforcement department. Provisions of the Measures cover, among others, the following:

ž   definition of illegal turnover;

ž   general standards for calculating illegal turnover;

ž  standards for calculating illegal turnover in complex infringement situations, such as in the cases of processing and contracting activities using registered trademark-infringing goods, infringing goods as promotional gift, refurbished goods, intentional facilitation of infringement, rented goods, infringement in advertising, and joint or contributory infringement involving trademark licensing;

ž   handling of situations where the actual illegal turnover cannot be verified;

ž  special circumstances where illegal turnover may be exempted from inclusion in the calculation; and

ž   calculation of illegal turnover in cases involving the connection between administrative and criminal proceedings.

The Measures have come into effect upon promulgation on 30 October 2024.