Administrative enforcement and criminal and civil decisions regarding trademark counterfeiting in China

Drawing on annual reports of 10-year government data and 1,600 criminal and civil cases over 5 years, this dissertation investigates administrative enforcement, criminal sanctions, and civil protections on trademark counterfeiting in China. In 2013, the trademark law of China revised to include specific calculation methods for illegal business volume (IBV) in trademark cases, an increased cap on statutory damages from ¥500,000 (or $71,000) to ¥3,000,000 (or $428,000), and secondary liability clauses. This dissertation examines the administrative enforcement by state administrative agencies in trademark counterfeiting cases, the criminal sanctions imposed on trademark counterfeiters, and the civil remedies granted to trademark owners. It finds out that despite the law revision, administrative fines imposed on counterfeiting activities remained to be lower than the fines on general trademark infringement. Criminal law specifies that fines should be 0.5-1 time of the IBV, and cases with an IBV greater than $250,000 (or $35,000) should be sentenced to 3-7 years. However, more than 50% criminal fines are only 0.2 time of IBV, and more than 25% cases which should be sentenced to 3-7 years are sentenced to less than 3 years. But there is evidence that calculations by courts or attorneys on IBV predict higher fines and longer terms of imprison than cases without such calculations. More than 90% monetary reliefs in civil litigation are of ¥60,000 (or $9000) or less, with modest 2-3% increase in large remedies greater than $30,000 (mostly granted to foreign litigators). It also reveals that courts’ reasoning and the existence of a prior decision (administrative or criminal) are shown to drive up the monetary reliefs. Monetary remedies after the law revision show an immediate increase compared to those granted before the revision, but such immediate increase does not show persistence. The findings in this dissertation suggest that there are certain areas in which Chinese courts and enforcement agencies can improve in dealing with trademark counterfeiting, such as the clarification of criminal transfer of administrative cases; improved criminal sanctions which meet the minimum requirements of criminal law; more well-calibrated secondary liability mechanism, and criminal-civil conjunction procedure on trademark counterfeiting cases