China’s IP Administrative Protection Guiding Cases (Nos. 9-11): What They Mean

Background of This Batch

To unify standards and raise the quality of intellectual property administrative protection, CNIPA released its third batch of IP administrative-protection guiding cases (Nos. 9-11) on 15 December 2023. They address recurring difficulties in patent administrative adjudication and trademark infringement handling, for reference by local IP enforcement agencies.

Case No. 9: Adjudication After Patent Invalidation

In a patent-infringement administrative adjudication, what happens if the patent is declared wholly invalid? The case clarifies: once invalidated, the patent is deemed never to have existed, so the infringement claim loses its right basis. The agency should dismiss the request or terminate the proceeding, avoiding a wrong decision on a right that has lapsed. Both rights holders and accused parties should note: invalidation directly reshapes the adjudication.

Case No. 10: Penalty-Mediation Linkage in Trademark Infringement

One act of trademark infringement may trigger both an administrative penalty (cease-and-desist, fine) and the victim’s damages. The case separates the two: the penalty targets unlawfulness and is ex officio; mediation targets the damages amount and starts on the victim’s request. They run in parallel — a failed mediation does not block the penalty, and if mediation fails the party may sue in civil court. This “penalty plus mediation” track protects order while easing remedies.

Case No. 11: Market-Operator Contributory Infringement

When tenants sell fakes in a market, is the operator liable? The case holds: if the market organizer knows or should know of a tenant’s trademark infringement yet still provides premises, storage, logistics or settlement facilitation, it constitutes contributory infringement and bears corresponding liability. Operators must run tenant vetting, infringement warning and fast-removal mechanisms rather than “just collecting rent”.

Practical Takeaways

Clearer remedies: a trademark victim may seek mediation for damages and a penalty to stop the act at the same time.

Right stability is the premise: assess invalidation risk before patent enforcement; invalidation ends the adjudication.

Platforms owe a duty of care: those facilitating known infringement are jointly liable.

FAQ

Q: Are guiding cases binding on enforcers?

A: They unify standards and serve as references; directive but not a substitute for law, and each case is decided on its facts.

Q: Can penalty and mediation apply to one infringement?

A: Yes. Penalty addresses the act; mediation addresses damages; they run in parallel, and failed mediation does not stop the penalty.

Q: When is a market operator liable?

A: If it knowingly facilitates a tenant’s trademark infringement with premises or logistics, it can be found contributory.

For trademark strategy and infringement prevention, see our China trademark classes; for granted-patent maintenance, our free patent annuity monitoring. For administrative enforcement, contact Hefei Zhihai Yida Patent Agency (CNIPA Code 34408).

Source: China National Intellectual Property Administration (CNIPA) policy interpretation “Understanding and Application of the Third Batch of IP Administrative-Protection Guiding Cases (Nos. 9-11)” (2024-02-06), original link: art_66_190198; related notice: CNIPA notice releasing the third batch.

This article introduces the intellectual property system of the People’s Republic of China (China); please refer to the latest official regulations for specifics.