Anti-Counterfeiting in the PRC: Update on Criminal, Civil and Administrative Enforcement

Traditionally, brand owners have sought relief against counterfeiters and other trademark infringers almost exclusively through the TSBs and AICs. Both are empowered under the PRC, Trademark Law (中华人民共和国商标法) (Trademark Law) and PRC, Product Quality Law (中华人民共和国产品质量法)(Product Quality Law or PQL), respectively, to conduct inspections and seizures at any commercial premises without the need for search warrants or other lengthy procedural requirements. However, the powers of the TSBs, AICs and other administrative enforcement authorities are generally limited by law to confiscation of infringing goods and the imposition of fines. The TSBs and AICs do not have the power to investigate and prosecute infringement cases under the PRC, Criminal Law (the Criminal Code), and for various reasons, they have only rarely been able to transfer serious counterfeiting cases to the PSBs for criminal investigation. Factors that have historically impeded the transfer of cases to the PSBs include the lack of clear and practical standards for determining whether a given counterfeiting case rises to the level of a crime (see below), the lack of manpower, training and political support of PSB involvement, and self-interest among the TSBs and AICs