Guozhi Fa Bao Zi [2024] No. 34

In order to thoroughly implement the decisions and deployments of the Party Central Committee and the State Council on comprehensively strengthening intellectual property protection, unify law enforcement standards, and standardize the calculation of illegal business revenue, in accordance with the provisions of the Trademark Law of the People's Republic of China and the Implementation Regulations of the Trademark Law of the People's Republic of China, the "Method for Calculating Illegal Business Revenue in Trademark Infringement Cases" has been formulated and is now issued to you for careful implementation.

Calculation method for illegal business revenue in trademark infringement cases

Article 1: In order to promote strict, standardized, fair and civilized law enforcement in trademark infringement cases, safeguard the legitimate rights and interests of business entities, and create a fair competition market environment, these Measures are formulated in accordance with laws and regulations such as the Trademark Law of the People's Republic of China and the Implementation Regulations of the Trademark Law of the People's Republic of China.

Article 2: In the process of handling trademark infringement cases, the trademark administrative law enforcement department shall apply these Measures when the actions of the parties have been identified as trademark infringement.

Article 3: The calculation of illegal business revenue shall follow the principles of legality, reasonableness, objectivity, and impartiality.

Article 4: Illegal business revenue refers to the total value of infringing goods involved in trademark infringement or the business income generated due to infringement.

Article 5: The value of infringing goods sold shall be calculated based on the actual selling price.

For goods that have been manufactured but have not yet been marked with infringing registered trademarks, if there is concrete and sufficient evidence to prove that the goods will infringe on the exclusive rights of others' registered trademarks, their value should be included in the illegal business revenue.

If the parties have objections to the calculation of the intermediate price of the infringed product in the market, they shall provide evidence to prove it.

Article 7: In the processing and contracting activities of labor and materials, if goods that infringe on the exclusive right to use registered trademarks are used, the illegal business amount shall be calculated based on the actual sales price of the infringing goods; If the infringing goods are not independently priced, they shall be calculated based on their value proportion in the contracted labor and material processing and operation activities. If the value proportion cannot be distinguished, the illegal operating amount shall be calculated based on the market middle price of the infringed goods.

Article 8: If the free gift of goods infringes on the exclusive right to use a registered trademark of others, the illegal operating amount shall be calculated based on the actual purchase price or manufacturing cost of the gift; If the actual purchase price or manufacturing cost of the gift cannot be determined, or if the gift belongs to non-standard goods, the illegal operating amount shall be calculated based on the quoted price or the market middle price of the infringing goods.

Refurbished goods themselves do not infringe on the exclusive rights of others' registered trademarks. If only their parts or accessories infringe on the exclusive rights of others' registered trademarks, the illegal business revenue shall be calculated based on the value of the infringing parts or accessories.

Article 10: If the infringement falls under the provisions of Article 57 (4) of the Trademark Law, the illegal business amount shall be calculated based on the actual sales price of the infringing mark.

Article 11: Those who intentionally provide convenient conditions for infringing on the exclusive right to use a registered trademark of others shall calculate the illegal business revenue based on the income obtained from assisting in the infringement; Those without income shall be treated according to the amount of illegal business operations.

Article 12: If the rental of goods infringes on the exclusive right to use a registered trademark of others, the illegal operating amount shall be calculated based on the rental income.

Article 13: If the exclusive right to use a registered trademark of another person is infringed upon in advertising and the infringing goods cannot be verified, they shall be dealt with according to the non illegal business revenue.

Article 14: If a trademark licensor and a licensee jointly infringe upon the exclusive right to use a registered trademark of another person, the illegal business amount shall be calculated in accordance with the provisions of Articles 5 and 6 of these Measures.

If the trademark licensor assists the licensee in infringing upon the exclusive right to use a registered trademark of others, the illegal business amount shall be calculated based on the license income; If a trademark is licensed for free use, it shall be handled according to the amount of illegal business operations.

Article 15: If the actual illegal business amount cannot be verified according to the above provisions, it shall be treated as having no illegal business amount. For those whose illegal business operations can only be partially verified, they shall be handled according to the verified illegal business operations.

Article 16: If the parties provide sufficient evidence to prove that the sales amount of infringing goods increased through false sales methods such as brushing orders, it shall not be included in the illegal business revenue.

Article 17: In cases of reverse transfer of execution, if the administrative and public security organs have inconsistent determinations of illegal business operations, they may make determinations based on the investigation results of the administrative organs and in accordance with the provisions of these Measures.

Article 18 These Measures shall be interpreted by the China National Intellectual Property Administration and the State Administration of Market Supervision and Administration.

Article 19: These Measures shall come into effect from the date of promulgation.