On 10 September, the Beijing IP Court released six typical cases
where it punished the relevant litigant participants and cancelled
six trademarks for fake evidence in lawsuits against non-use
cancellation appeal decisions. We summarize 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 trademark
JIAJIA and its Chinese characters and Device, No. 1486278, the
third parties with surnames Li and Bai submitted test reports and
business licenses, but the trademarks 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 trademark 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 trademark
Ancient Tea Horse Road in Chinese and Device, No. 3084001, the
third party with surname Mao submitted fake product photos. The
trademark shown was Ancient Tea Horse Road in Chinese and Device,
but the trademark found for the commodity in a search on the
Chinese Commodity Information Services Platform was a different
trademark.

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 trademarks. The Court cancelled the
trademark 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 trademark 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 trademark 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 trademark
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 trademark
in dispute was not shown.

The Court cancelled the trademark 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 trademark Mei
Qi Lin in Chinese, No. 10048229, Guangdong Qianfen Cosmetics
Industry Co, Ltd. submitted five invoices, all indicating the
disputed trademark, whereas the tax authorities’ platform did
not record the trademark. 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 trademark 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 trademark
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 trademark and fined Luo CNY10,000
(US$1,550).

Analysis

All the six cases are related to trademark 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 trademark valid would be
procedurally served in copy to the opposite party requesting the
cancellation. The cancellation applicant, with the help of
professional local trademark 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.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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