On 10 September, the Beijing IP Court released six typical cases where it punished the relevant litigant participants and cancelled six trade marks for fake evidence in lawsuits against non-use cancellation appeal decisions. Haiyu Li and Tingxi Huo of the MARQUES China Team summarise and review the cases.

Case 1: Fabricating test reports and advertisement registration certificates, etc (Jingzhixingchu 2015-1165)

In the non-use cancellation case relating to the trade mark JIAJIA and its Chinese characters and Device, No 1486278, the third parties with surnames Li and Bai submitted test reports and business licences, but the trade marks in the copy and the original were inconsistent.

The third parties also submitted advertisement registration certificates in notarized form to prove that the copy was consistent with the original. However, the dates on the certificate were inconsistent and 29 February 2013 was not a date at all. The goods descriptions on the copy and original invoices were inconsistent, too.

The Court cancelled the trade mark and fined Li and Bai each CNY10,000 (US$1,550). This is the first case where the Beijing IP Court punished the conduct of fake evidence.

Case 2: Fabricating product photos, etc. in six non-use cancellation appeals (Jing73xingchu 2020-14664)

In this non-use cancellation case relating to the trade mark Ancient Tea Horse Road in Chinese and Device, No 3084001, the third party with surname Mao submitted fake product photos. The trade mark shown was Ancient Tea Horse Road in Chinese and Device, but the trade mark found for the commodity in a search on the Chinese Commodity Information Services Platform was a different trade mark.

In addition, the submitted invoices were found to be absent or different from the official record in terms of corporate names, tax payer IDs, products, and trade marks. The Court cancelled the trade mark and fined Mao for the fake evidence CNY30,000 (US$4,650) in all six cases.

Case 3: Fabricating invoices in the non-use cancellation appeal (Jing73xingchu 2020-13177)

In the non-use cancellation case relating to the trade mark Green Forest Hut in Chinese, No 8403409, the third party Jilin Green Forest Pro-Environment Technology Co, Ltd submitted invoices with an attached list of goods which were found to be inconsistent with the records in the national taxation system. The Court cancelled the trade mark and fined the company CNY10,000 (US$1,550).

Case 4: Fabricating invoices in the non-use cancellation appeal (Jing73xingchu 2020-13083)

In a non-use cancellation case relating to the trade mark ITSTYLE, No 9841494, the third party Anhui Xinghao Industrial Trade Co, Ltd submitted invoices indicating beauty masks and lotions, but the tax authorities’ platform indicated different goods, namely indoor slippers and electric horns, and the trade mark in dispute was not shown.

The Court cancelled the trade mark and fined the company CNY10,000 (US$1,550).

Case 5: Fabricating invoices in the non-use cancellation appeal (Jing73xingchu 2021-8597)

In the non-use cancellation case relating to the trade mark Mei Qi Lin in Chinese, No 10048229, Guangdong Qianfen Cosmetics Industry Co, Ltd. submitted five invoices, all indicating the disputed trade mark, whereas the tax authorities’ platform did not record the trade mark. The company explicitly confirmed the inconsistency and requested withdrawal of the evidence.

The Court ruled that though the company requested a withdrawal during the lawsuit, the fact that it had already submitted fake evidence could not be changed. Moreover, the request was not made until the administrative organ explicitly pointed out the fake evidence. The Court cancelled the trade mark and fined the company CNY10,000 (US$1,550).

Case 6: Fabricating invoices in the non-use cancellation appeal (Jing73xingchu 2021-3275)

In this non-use cancellation case relating to the trade mark BLACKDIAMOND, No 4579231, the third party with the surname Luo submitted two contradictory invoices in copy. Specifically, in the invoice copies with the same issuing date and number, the goods descriptions were different. In addition, one of the two copies was found out inconsistent with the official record in terms of goods. The Court cancelled the trade mark and fined Luo CNY10,000 (US$1,550).

Analysis

All the six cases are related to trade mark non-use cancellation. In the non-use cancellation procedure, there is no cross-examination procedure, and some defects in the filed evidence of use cannot be effectively found by the examiners.

We always suggest the cancellation applicant actively participate in the cancellation appeals, in which the evidence filed by the owner to keep its registered trade mark valid would be procedurally served in copy to the opposite party requesting the cancellation. The cancellation applicant, with the help of professional local trade mark attorneys, can check the authenticity and validity of evidence piece by piece and help the appeal examiners to find the potential defects in the filed evidence.

In administrative proceedings, a court may, according to the severity of the scenarios, punish the party that fabricates, conceals, destroys, or produces fake evidence to hinder the court’s examination by giving admonishment, ordering the signing of a statement of repentance, imposing a fine of up to CNY10,000 or a detention of up to 15 days.

All the above six cases were administrative ones and the fine was limited to this small amount only (the maximum permitted). If a case grows into a criminal offence, the court may sentence the criminal to imprisonment.

Ms Haiyu Li and Mr Tingxi Huo are members of Chofn IP and the latter is a member of the MARQUES China Team