Chinese
To implement the spirit of the 20th National Congress of the Communist Party of China and the second and third plenary sessions of the 20th Central Committee, and to earnestly carry out the decisions and deployments of the Central Committee of the Communist Party of China and the State Council regarding the comprehensive strengthening of intellectual property protection, the National Intellectual Property Administration (NIPA) and the State Administration for Market Regulation (SAMR) have jointly issued the "Calculation Methods for Illegal Operating Amounts in Trademark Infringement Cases."
The "Methods" systematically summarize and refine the beneficial experiences and practices of calculating illegal operating amounts in trademark infringement cases over the years. Comprising 19 articles, it details the definition of illegal operating amounts, general standards for calculating illegal operating amounts, calculation standards for complex infringement scenarios, handling cases where actual illegal operating amounts cannot be verified, special circumstances that are not included in illegal operating amounts, and methods for calculating illegal operating amounts in reverse referrals, among other aspects. This provides specific operational guidelines for trademark enforcement departments in calculating illegal operating amounts and helps create a transparent and predictable environment for intellectual property protection.
Moving forward, the National Intellectual Property Administration and the State Administration for Market Regulation will promote the dissemination and interpretation of the "Methods," advance their implementation, further unify and standardize enforcement criteria, and continuously enhance the level of intellectual property protection.
The methods are attached:
Calculation Methods for Illegal Operating Amounts in Trademark Infringement Cases
Article 1: In order to promote strict, standardized, fair, and civilized law enforcement in trademark infringement cases, protect the legitimate rights and interests of business entities, and create a fair competitive market environment, these methods are formulated based on the "Trademark Law of the People's Republic of China," the "Regulations for the Implementation of the Trademark Law of the People's Republic of China," and other relevant laws and regulations.
Article 2: These methods shall apply when the actions of the parties involved in trademark infringement cases have been confirmed as infringing acts by administrative law enforcement departments.
Article 3: The calculation of illegal operating amounts shall adhere to the principles of legality, reasonableness, objectivity, and fairness.
Article 4: The illegal operating amount refers to the total value of the infringing goods involved in the trademark infringement or the business income generated due to the infringement.
Article 5: The value of infringing goods that have already been sold shall be calculated based on the actual selling price.
The value of infringing goods that have not yet been sold shall be based on the verified average selling price of similar infringing goods; if the actual average selling price cannot be verified, the listed price of the infringing goods shall be used.
If the actual selling price cannot be verified or if the infringing goods are not priced, the market intermediate price during the period of infringement shall be used for calculation.
For goods that have been manufactured but have not yet had the infringing registered trademark affixed, if there is sufficient and conclusive evidence proving that these goods would infringe upon another party's registered trademark rights, their value shall be included in the illegal operating amount.
Article 6: The market intermediate price of the infringed product shall be determined based on the suggested retail price published by the rights holder of the infringed product. If there is no suggested retail price, the following methods shall apply:
1. If multiple vendors sell the same infringed product in the market, a sample shall be taken from several vendors' retail prices, and the average shall determine the market intermediate price; if there is only one vendor, the retail price of that vendor shall be used to determine the market intermediate price;
2. If there are no sales of the same infringed product in the market, the intermediate price shall be determined based on past sales of similar infringed products in the market or based on the intermediate prices of similar products that are identical or analogous in function, use, main materials, design, configuration, etc.
If it remains difficult to determine the market intermediate price using the above methods, the price recognition institution may make an identification to determine it.
Statements from the parties involved or market intermediate prices provided by the trademark rights holder shall be considered as references after reviewing and verifying them against other relevant evidence.
If the party disagrees with the calculated result of the market intermediate price of the infringed product, they must provide evidence to substantiate their claims.
Article 7: In commissioned processing and contracting activities that involve the use of goods infringing upon registered trademark rights, the illegal operating amount shall be calculated based on the actual selling price of the infringing goods; if the infringing goods are not independently priced, the calculation shall be based on their value ratio in the commissioned processing activity, and if the value ratio cannot be distinguished, the market intermediate price of the infringed goods shall be used.
Article 8: For goods given away for free that infringe upon another party's registered trademark rights, the illegal operating amount shall be calculated based on the actual purchase price or manufacturing cost of the gifts; if it is impossible to determine the actual purchase price or manufacturing cost of the gifts, or if the gifts are non-standard items, the calculation shall be based on the listed price or the market intermediate price of the infringed goods.
Article 9: For refurbished goods that infringe upon another party's registered trademark rights, the illegal operating amount shall be calculated based on the overall value of the infringing goods.
If the refurbished goods themselves do not infringe upon another party's registered trademark rights but their parts or components do, the illegal operating amount shall be calculated based on the value of the infringing parts or components.
Article 10 For acts of infringement as stipulated in Item (4) of Article 57 of the Trademark Law, the illegal operating amount shall be calculated based on the actual selling price of the infringing mark.
Article 11 If someone intentionally provides conditions to facilitate the infringement of another party's registered trademark rights, the illegal operating amount shall be calculated based on the income obtained from assisting the infringement; if there is no income, it shall be treated as no illegal operating amount.
Article 12 For goods rented out that infringe upon another party's registered trademark rights, the illegal operating amount shall be calculated based on the rental income.
Article 13 If there is an infringement of another party's registered trademark rights in advertising and the infringing goods cannot be verified, it shall be treated as having no illegal operating amount.
Article 14 If a trademark licensor and a licensee jointly infringe upon another party's registered trademark rights, the illegal operating amount shall be calculated according to Articles 5 and 6 of these methods.
If the trademark licensor assists the licensee in infringing upon another party's registered trademark rights, the illegal operating amount shall be calculated based on the licensing income; if the trademark is licensed free of charge, it shall be treated as no illegal operating amount.
Article 15 If it is impossible to verify the actual illegal operating amount based on the above provisions, it shall be treated as no illegal operating amount. For cases where only part of the illegal operating amount can be verified, it shall be handled based on the verified illegal operating amount.
Article 16 If a party provides sufficient evidence proving that the sales volume of infringing goods was artificially inflated through fake sales techniques such as "brushing," this volume shall not be included in the illegal operating amount.
Article 17 In cases of administrative and criminal referral where there is a discrepancy between the administrative agency and the public security agency regarding the determination of the illegal operating amount, the determination may be made based on the findings of the administrative agency in accordance with the provisions of these methods.
Article 18 These methods shall be interpreted by the National Intellectual Property Administration and the State Administration for Market Regulation.
Article 19 These methods shall take effect from the date of publication.
Source: National Intellectual Property Administration
To implement the spirit of the 20th National Congress of the Communist Party of China and the second and third plenary sessions of the 20th Central Committee, and to earnestly carry out the decisions and deployments of the Central Committee of the Communist Party of China and the State Council regarding the comprehensive strengthening of intellectual property protection, the National Intellectual Property Administration (NIPA) and the State Administration for Market Regulation (SAMR) have jointly issued the "Calculation Methods for Illegal Operating Amounts in Trademark Infringement Cases."
The "Methods" systematically summarize and refine the beneficial experiences and practices of calculating illegal operating amounts in trademark infringement cases over the years. Comprising 19 articles, it details the definition of illegal operating amounts, general standards for calculating illegal operating amounts, calculation standards for complex infringement scenarios, handling cases where actual illegal operating amounts cannot be verified, special circumstances that are not included in illegal operating amounts, and methods for calculating illegal operating amounts in reverse referrals, among other aspects. This provides specific operational guidelines for trademark enforcement departments in calculating illegal operating amounts and helps create a transparent and predictable environment for intellectual property protection.
Moving forward, the National Intellectual Property Administration and the State Administration for Market Regulation will promote the dissemination and interpretation of the "Methods," advance their implementation, further unify and standardize enforcement criteria, and continuously enhance the level of intellectual property protection.
The methods are attached:
Calculation Methods for Illegal Operating Amounts in Trademark Infringement Cases
Article 1: In order to promote strict, standardized, fair, and civilized law enforcement in trademark infringement cases, protect the legitimate rights and interests of business entities, and create a fair competitive market environment, these methods are formulated based on the "Trademark Law of the People's Republic of China," the "Regulations for the Implementation of the Trademark Law of the People's Republic of China," and other relevant laws and regulations.
Article 2: These methods shall apply when the actions of the parties involved in trademark infringement cases have been confirmed as infringing acts by administrative law enforcement departments.
Article 3: The calculation of illegal operating amounts shall adhere to the principles of legality, reasonableness, objectivity, and fairness.
Article 4: The illegal operating amount refers to the total value of the infringing goods involved in the trademark infringement or the business income generated due to the infringement.
Article 5: The value of infringing goods that have already been sold shall be calculated based on the actual selling price.
The value of infringing goods that have not yet been sold shall be based on the verified average selling price of similar infringing goods; if the actual average selling price cannot be verified, the listed price of the infringing goods shall be used.
If the actual selling price cannot be verified or if the infringing goods are not priced, the market intermediate price during the period of infringement shall be used for calculation.
For goods that have been manufactured but have not yet had the infringing registered trademark affixed, if there is sufficient and conclusive evidence proving that these goods would infringe upon another party's registered trademark rights, their value shall be included in the illegal operating amount.
Article 6: The market intermediate price of the infringed product shall be determined based on the suggested retail price published by the rights holder of the infringed product. If there is no suggested retail price, the following methods shall apply:
1. If multiple vendors sell the same infringed product in the market, a sample shall be taken from several vendors' retail prices, and the average shall determine the market intermediate price; if there is only one vendor, the retail price of that vendor shall be used to determine the market intermediate price;
2. If there are no sales of the same infringed product in the market, the intermediate price shall be determined based on past sales of similar infringed products in the market or based on the intermediate prices of similar products that are identical or analogous in function, use, main materials, design, configuration, etc.
If it remains difficult to determine the market intermediate price using the above methods, the price recognition institution may make an identification to determine it.
Statements from the parties involved or market intermediate prices provided by the trademark rights holder shall be considered as references after reviewing and verifying them against other relevant evidence.
If the party disagrees with the calculated result of the market intermediate price of the infringed product, they must provide evidence to substantiate their claims.
Article 7: In commissioned processing and contracting activities that involve the use of goods infringing upon registered trademark rights, the illegal operating amount shall be calculated based on the actual selling price of the infringing goods; if the infringing goods are not independently priced, the calculation shall be based on their value ratio in the commissioned processing activity, and if the value ratio cannot be distinguished, the market intermediate price of the infringed goods shall be used.
Article 8: For goods given away for free that infringe upon another party's registered trademark rights, the illegal operating amount shall be calculated based on the actual purchase price or manufacturing cost of the gifts; if it is impossible to determine the actual purchase price or manufacturing cost of the gifts, or if the gifts are non-standard items, the calculation shall be based on the listed price or the market intermediate price of the infringed goods.
Article 9: For refurbished goods that infringe upon another party's registered trademark rights, the illegal operating amount shall be calculated based on the overall value of the infringing goods.
If the refurbished goods themselves do not infringe upon another party's registered trademark rights but their parts or components do, the illegal operating amount shall be calculated based on the value of the infringing parts or components.
Article 10 For acts of infringement as stipulated in Item (4) of Article 57 of the Trademark Law, the illegal operating amount shall be calculated based on the actual selling price of the infringing mark.
Article 11 If someone intentionally provides conditions to facilitate the infringement of another party's registered trademark rights, the illegal operating amount shall be calculated based on the income obtained from assisting the infringement; if there is no income, it shall be treated as no illegal operating amount.
Article 12 For goods rented out that infringe upon another party's registered trademark rights, the illegal operating amount shall be calculated based on the rental income.
Article 13 If there is an infringement of another party's registered trademark rights in advertising and the infringing goods cannot be verified, it shall be treated as having no illegal operating amount.
Article 14 If a trademark licensor and a licensee jointly infringe upon another party's registered trademark rights, the illegal operating amount shall be calculated according to Articles 5 and 6 of these methods.
If the trademark licensor assists the licensee in infringing upon another party's registered trademark rights, the illegal operating amount shall be calculated based on the licensing income; if the trademark is licensed free of charge, it shall be treated as no illegal operating amount.
Article 15 If it is impossible to verify the actual illegal operating amount based on the above provisions, it shall be treated as no illegal operating amount. For cases where only part of the illegal operating amount can be verified, it shall be handled based on the verified illegal operating amount.
Article 16 If a party provides sufficient evidence proving that the sales volume of infringing goods was artificially inflated through fake sales techniques such as "brushing," this volume shall not be included in the illegal operating amount.
Article 17 In cases of administrative and criminal referral where there is a discrepancy between the administrative agency and the public security agency regarding the determination of the illegal operating amount, the determination may be made based on the findings of the administrative agency in accordance with the provisions of these methods.
Article 18 These methods shall be interpreted by the National Intellectual Property Administration and the State Administration for Market Regulation.
Article 19 These methods shall take effect from the date of publication.
Source: National Intellectual Property Administration
