1. How to collect evidence in trademark litigation

According to the burden of proof system established by the parties in the Civil Procedure Law, in addition to the evidence collected through investigation and collection by the People’s Court, trademark litigation evidence is mainly provided by the parties supply. Therefore, after a trademark rights dispute occurs, it is the first task of the parties to adopt effective and convenient evidence collection methods and collect strong evidence to support their claims.

The vast majority of evidence in trademark litigation is collected by the parties themselves, which is a characteristic of civil litigation. To prove that the infringer's infringement is established, the trademark owner must have certain evidence corresponding to the claim. When a rights holder wants to initiate litigation, he or she must have at least preliminary evidence to confirm the defendant's infringement. Otherwise, it will affect the initiation and continuation of the litigation.

2. What evidence to collect in trademark litigation

Parties must collect the following evidence based on the different characteristics of the case:

(1) Prove that they are the right holders and the scope of their rights evidence. Article 108 of my country's Civil Procedure Law stipulates that the plaintiff should be a direct stakeholder in the case. For example, in a trademark infringement lawsuit, the plaintiff should be the trademark owner of the infringed trademark right, or the licensee of the exclusive or exclusive licensing contract of the trademark, etc.

(2) Evidence proving the occurrence of trademark infringement and the extent of the harm. This is one of the key pieces of evidence in trademark infringement litigation, and it is also one of the more difficult pieces of evidence to collect. The purpose is to collect evidence to solidify the trademark infringement that has occurred or is occurring in the form of evidence, so that the facts of the infringement can be "reproduced" in court.

(3) Evidence proving the identity of the infringer. The Civil Procedure Law stipulates that a prosecution must have a clear defendant. The defendant must be the perpetrator of the infringement. The true full name, residence or main place of business, etc. of the accused infringing enterprise (or individual) must be completely and accurately confirmed, and relevant evidence materials must be obtained.

(4) Evidence proving the place of infringement. The place of infringement is the basis for determining the jurisdiction of the court. The evidence proving the place of infringement also plays a role in proving or corroborating the determination of infringement. The place of infringement is divided into the place where the infringement occurs and the place where the infringement results. When the two are inconsistent, evidence from both places needs to be collected.

(5) Evidence proving the benefits gained by the infringer due to the infringement during the infringement period, or the losses suffered by the infringed party due to the infringement during the infringement period. Paragraph 1 of Article 56 of the Trademark Law stipulates: “The amount of compensation for infringement of the exclusive right to use a trademark shall be the benefits obtained by the infringer due to the infringement during the period of infringement, or the losses suffered by the infringed party due to the infringement during the period of infringement. Losses include reasonable expenses incurred by the infringer to stop the infringement. "The above two aspects of evidence are related to the determination of the amount of compensation.

(6) Record evidence of the popularity or protection of the infringed trademark. This evidence involves whether the infringed trademark meets the conditions for being recognized as a well-known trademark.

(7) Evidence of similar goods, similar trademarks and other aspects.