Foreign IP owners involved in 50% of administrative IP cases - but damages are low

China

According to statistics released by the Beijing Number 1 Intermediate People’s Court in December 2011, foreign IP owners are involved in 50% of administrative IP cases, and 31.5% of all IP cases (including administrative and civil litigation and criminal enforcement cases).

The Beijing Number 1 Intermediate People’s Court handles all trademark and patent administrative challenges against decisions issued by:

In December 2011 the court held a meeting and presented its achievements since 2002. The statistics revealed interesting information about the proportion of foreign-related IP cases and the results obtained. Between 2002 and November 2011, the court handled a total of 10,404 administrative trademark and patent cases (details for each category are not available). During the period between January 2011 and November 2011, the court handled 2,311 trademark and patent cases - about 50% of which involved a foreign party.

The court disclosed another statistic for the period between 2002 and November 2011 concerning all categories of IP cases (administrative, civil and criminal): there were a total of 5,318 foreign-related cases, representing 31.5% of all IP cases. The court indicated that the foreign litigants won 55.2% of these 5,318 enforcement cases and that Rmb50 million were awarded as damages over the entire period.

The comparison between the overall figures (for a period of 10 years) and those for the first 11 months of 2011 shows a significant increase in the number of administrative cases. Furthermore, the proportion of foreign-related cases (50%) may be compared with the very small proportion of foreigners in the overall number of civil IP cases (2%, as recorded during the year 2010 by the Supreme People’s Court). Clearly, foreign IP owners are mainly busy registering their rights in China and protecting those rights against other applicants. As to the enforcement actions (civil and criminal) conducted by foreign IP owners before the Beijing Number 1 Intermediate Court, it is possible, based on the percentages provided by the court, to calculate the number of civil and criminal cases: 6,479. The percentage of 55.2% of successful cases concerns all cases, including administrative cases, which means that, for civil and criminal cases only, the percentage of success should be much higher (it is a known fact that the court does not overrule more than 20% of TRAB or PRAB decisions).

The court also indicated that it had awarded a total of Rmb50 million in financial compensation during the period starting in 2002. Assuming that civil cases represent the majority of cases, it is possible to deduct that an average of Rmb10,000 were awarded per case, which seems quite low.

Paul Ranjard, Wan Hui Da Law Firm & Intellectual Property Agency, Beijing 

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