Dear ben6680-ga,
This is the information I have found on presenting evidence in the
Chinese Courts in cases concerning IP disputes. All the sources are in
English. There may be Chinese language sources but these are
inaccessible to me. I?m not aware of any current Chinese language
researcher with Google Answers. I have placed extracts below of
various documents and legislation, but you will need to read all the
links in their entirety.
The State Intellectual Property Office of the Peoples Republic of
China provides a page on the rules and legislation concerning Patents,
Trademarks and Copyright.
http://www.sipo.gov.cn/sipo_English/gjhz/default.htm
The Trademark Law appears on this link
http://www.sipo.gov.cn/sipo_English/flfg/xgflfg/t20020416_34755.htm
The Copyright Law appears on this link
http://www.sipo.gov.cn/sipo_English/flfg/xgflfg/t20020416_34754.htm
Both laws state that when an infringement of trademark or copyright is
suspected, application can be made to a court for preservation of
evidence before instituting proceedings if there is a danger that the
evidence may be lost or difficult to obtain in the future.
Trademark Law
===========
?Article 57 Where a trademark registrant or interested party who has
evidence to show that another person is committing or will commit an
infringement of the right to use its or his registered trademark, and
that failure to promptly stop the infringement will cause irreparable
damages to its or his legitimate rights and interests, it or he may
file an application with the People's Court to order cessation of the
relevant act and to take measures for property preservation before
instituting legal proceedings in the People's Court.
Article 58 In order to stop an infringing act, any trademark
registrant or interested party may file an application with the
People's Court for preservation of the evidence before instituting
legal proceedings in the People's Court where the evidence will
possibly be destroyed or lost or difficult to be obtained again in the
future. The People's Court must make adjudication within forty-eight
hours after receipt of the application; where it is decided to take
the preservative measures, the measures shall be executed immediately.
The People's Court may order the applicant to place guaranty; where
the applicant fails to place the guaranty, the application shall be
rejected.
Where the applicant institutes no legal proceedings within fifteen
days after the People's Court takes the preservative measures, the
People's Court shall release the measures taken for the preservation.?
http://www.sipo.gov.cn/sipo_English/flfg/xgflfg/t20020416_34755.htm
Copyright Law
===========
?Article 49 A copyright owner or owner of a copyright-related right
who has evidence to establish that another person is committing or
will commit an act of infringing his right, which could cause
irreparable injury to his legitimate rights and interests if the act
is not stopped immediately, may apply to the People's Court for
ordering cessation of the related act and for taking the measures for
property preservation before instituting legal proceedings.
Article 50 For the purpose of preventing an infringing act and under
the circumstance where the evidence could be lost or is difficult to
obtain at1erwards, the copyright owner or the owner of a
copyright-related right may apply to the People's Court for evidence
preservation before initiating legal proceedings.
The People's Court must make the decision within forty-eight hours
after it accepts an application; the measures of preservation shall be
taken without delay if it is decided to do so.
The People's Court may order the applicant to provide a guaranty,
if the latter fails to do so, the Court shall reject the application.
Where the applicant fails to institute legal proceedings within
fifteen days after the People's Court adopted the measures of
preservation, the latter shall terminate the measures of
preservation.?
http://www.sipo.gov.cn/sipo_English/flfg/xgflfg/t20020416_34754.htm
Application is made under the Civil Procedure Law.
Civil Procedure Law Of The People?s Republic Of China (Part I)
Particularly Article 67 which is referred to below in the Lei Wu article.
?Article 67. The people's court shall take the legal acts, legal facts
and documents notarized according to legal procedures as basis for
ascertaining facts, except when there is contrary evidence sufficient
to invalidate the notarial certification.?
http://www.cpa-lawyers.net/ReadNews.asp?NewsID=318
Also relevant are the following:
Interpretation Relating to Application of Law to Pre-trial Suspension
of Acts of Infringement of Exclusive Right to Use Trademark and to
Evidence Preservation
http://www.chinantd.com/news.php?language=en&channel=65&id=82
Interpretation Relating to Jurisdiction over and Scope of Application
of Law to the Hearing of Trademark Cases Judicial Interpretation No. 1
(2002)
http://www.eastlaw.net/service/datacnlaw/code/judicialinterpretation/IPR/trademarkscope.htm
The Interpretation of the Supreme People?s Court Concerning Several
Issues on Application of Law in Hearing Correctly the Civil Copyright
Cases
http://www.chinaiprlaw.com/english/laws/laws14.htm
You will observe in the Civil Procedure Law that making the
application for property preservation is indeed obtained and presented
by a Public Notary. If the evidence is obtained outside China than it
must be ?legalised? by the Chinese Embassy of the relevant country.
This document is a useful guide.
Practical Considerations in Enforcing IP rights in China
Lei Wu, Attorney, CCPIT, Dale Hogue and Arent Fox
July-August 2004
?c) Some provisions and issues of investigation (evidence collection)
In accordance with the laws, regulations and notifications etc. of
China, if the facts, acts or documents as investigated are notarized,
they would be accepted as the basis for determining the relevant case
(ref: Art. 67 of the ?Civil Procedural Law of the Peoples? Republic of
China?, and ?Provisions of Evidences in Civil Litigation Procedures by
the Supreme Court of China?). Generally notary public of China would
conduct notarization at request and even could be invited to appear at
spot of investigation. Therefore when conducting investigations by
right owners themselves, such provisions shall be taken into account
accordingly. As for those evidences which are formed outside of
territory of China, they shall, according to the ?Provisions of
Evidences in Civil Litigation Procedures by the Supreme Court of
China?, be notarized by the local notary public and legalized by the
Chinese embassy or consulate to that country, or they would not be
accepted by Chinese courts. The provisions should also deserve an
appropriate note in conducting investigations.?
http://www.aftermarketsuppliers.org/pdf/IP_Enforcement_in_China.pdf
These other sources will also be of interest.
?According to the Civil Procedural Law of the People's Republic of
China, a participant in a lawsuit may apply to the People's Court to
preserve evidence which may be lost or may be difficult to obtain
later. The People's Court can also take preservation measures sua
sponte. The evidence preservation may occur before the suit begins and
is usually conducted by the Public Notary. Such evidence shall be
transferred to the court after the lawsuit process begins. The
preserved evidence is of the same validity as other evidence
investigated and collected by the court during the suit.?
http://www.law.duke.edu/journals/djcil/articles/djcil9p267.htm#H2N5
?Given the very cautious approach of the courts in these sorts of
cases, it is imperative that evidence be gathered in the presence of a
China notary public and any statements required be deposed to in the
presence of a notary or China attesting officer and legalized if that
evidence is coming from a foreign country.?
Google cache only
http://64.233.161.104/search?q=cache:rLphMTX7La0J:www.managingip.com/includes/magazine/PRINT.asp%3FSID%3D472342%26ISS%3D12532%26PUBID%3D34+%22property+preservation%22+china+notary+trademark&hl=en
IP Guide 2004 - detailed information on IP disputes in China. Page
16 also refers to legalizing of documents at the Chinese embassy.
http://www.bakernet.com/NR/rdonlyres/85DD7DF0-F436-41B1-A0A0-79D3419D2C54/0/1081ChinaIPguide2004.pdf
Although not internet related, this newsletter provides evidence of
how a notary is used in trademarks proceedings.
?Panrico, a Sino-Spanish joint venture, began to sell pies in the
Chinese market in 2001, and expanded through further investment later
in 2002. Panrico found same products manufactured by Jintiantan
wrapped up in almost identical packaging in the Beijing market, and,
therefore, purchased the counterfeiting goods as proofs before the
witness of notary public.?
http://www.liuleecn.com/newshtml/newsletters/20040319145017.htm
I hope this answers your question. If it does not, or the answer is
unclear, then please ask for clarification of this research before
rating the answer. I shall respond to the clarification request as
soon as I receive it.
Thank you
answerfinder |
