As someone who has guided numerous foreign companies through China's IP enforcement landscape, I've observed a remarkable shift in recent months. Criminal prosecution, once considered a last resort for trademark enforcement, has emerged as an increasingly viable and powerful tool for brand protection in China.
The numbers tell a compelling story. In 2024, first-instance criminal IP cases surged by 24.34% year-over-year, with trademark-specific criminal cases rising by 21.78%. This isn't just statistical noise – it represents a fundamental change in how China approaches serious trademark violations.
The catalyst for this transformation arrived in April 2025, when the Supreme People's Court and Supreme People's Procuratorate jointly issued their "Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Intellectual Property Infringement." This document provides unprecedented clarity on how criminal provisions apply to trademark infringement.
What makes this interpretation so significant? For starters, it closes several loopholes that counterfeiters have exploited for years. The definition of "identical" trademarks now explicitly includes marks with minor alterations like font changes, spacing adjustments, or non-distinctive color variations. This directly targets the common counterfeiter tactic of making slight modifications to evade liability.
The interpretation also expands what constitutes "same kind of goods or services" beyond identical names to include products with substantially similar functions, uses, materials, consumers, or channels. This broader definition makes it harder for infringers to argue their way out of criminal liability based on technical distinctions.
Perhaps most helpful for brand owners are the clear monetary thresholds that trigger criminal liability – illegal income ≥ RMB 30,000 or illegal business volume ≥ RMB 50,000 for counterfeiting registered trademarks. The interpretation even addresses the burden of proof for sellers of counterfeit goods, listing specific circumstances that create a presumption of "knowing" involvement.
For foreign brands operating in China, these developments present both an opportunity and a strategic consideration. Criminal enforcement offers distinct advantages: it's funded by the state rather than the rights holder, carries stronger deterrent effects through potential imprisonment, and can disrupt counterfeiting networks more effectively than civil litigation alone.
However, pursuing criminal enforcement requires careful planning. Based on my experience, here are three essential considerations for foreign brand owners:
First, documentation is critical. Build cases methodically with notarized purchases, market surveys, and evidence that clearly establishes the scale of infringement meets criminal thresholds. The more comprehensive your evidence package, the more likely prosecutors will take interest.
Second, work with experienced local counsel who understand the procedural nuances of criminal IP enforcement. The process differs significantly from civil litigation, requiring specialized knowledge of criminal procedure and effective communication with law enforcement authorities.
Third, consider a coordinated approach. The most effective strategies often combine administrative actions through local Market Supervision Bureaus (MSBs), civil litigation for damages, and criminal referrals – each serving different strategic objectives in your overall enforcement plan.
The message from China's legal system is increasingly clear: serious trademark infringement is not merely a commercial dispute but a criminal offense warranting severe penalties. For foreign brands that have struggled with persistent counterfeiting, this evolving enforcement landscape offers new hope and powerful tools – if you approach it with strategic clarity and thorough preparation.