The article was excerpted from the original version published by the examiner in the Fifth Examination Division, Trademark Office, National Intellectual Property Administration.
The correct use of trademarks is essential to the core interests of businesses. By following standardized trademark usage practices, companies can effectively reduce risks related to unfair competition, confidently navigate administrative trademark approvals and confirmations, achieve favorable results in trademark infringement disputes, and significantly increase the value of their intangible assets. In many trademark-related matters, evidence of trademark use plays a crucial role, making the criteria for evaluating such evidence especially important.
I. Understanding the Standard of Proof and Its Measurement
The standard of proof defines the level of evidence required to establish a fact. It is generally divided into three tiers: preponderance of probability, high likelihood, and beyond reasonable doubt. Under China Civil Procedure Law and Administrative Procedure Law, civil and administrative cases apply the high likelihood standard.
High likelihood indicates a strong probability. Some experts further break this down into three ranges based on confidence levels: primary likelihood (51%–74%), intermediate likelihood (75%–84%), and advanced likelihood (85%–99%). These ranges offer useful guidance for interpreting the standard of proof. However, in practice, adjudicators must rely on their judgment, which involves some discretion. To minimize subjectivity, evidentiary rules require that decisions be grounded in objective evidence.
In trademark cases, meeting the high likelihood standard generally means that the totality of evidence should demonstrate at least a 75% probability. If the evidence does not reach this threshold, the fact cannot be established, and the party responsible for providing proof may face adverse consequences. So, how can this high likelihood standard be achieved?
II. The Three Characteristics and Two Strengths of Evidence
The Three Characteristics of Evidence: Legality, Objectivity, and Relevance
a) Legality
Evidence must be obtained and presented in accordance with legal requirements. This includes ensuring the source is legitimate—such as a recognized organization or qualified individual—and that the evidence form meets formal standards, like contracts bearing valid signatures or seals. Additionally, the method of obtaining evidence must comply with laws, avoiding violations such as privacy infringements or illegal means.
b) Objectivity
Evidence should exist independently of subjective influence. Ideally, it should not be created solely by the parties involved but should involve impartial third-party participation or verification. Objectivity supports the authenticity and reliability of evidence and underpins its legality and relevance.
c) Relevance
Evidence must have a logical connection to the fact it aims to prove. For example, different pieces of evidence related to various stages of an event should corroborate one another. In trademark cases, relevance is shown by whether the evidence reflects the disputed trademark, demonstrates standardized use of the registered trademark, aligns the actual goods or services with those approved for trademark use, indicates the timeframe of use, confirms whether the use constitutes infringement, and verifies that the use occurred within the applicable jurisdiction.
The Two Strengths of Evidence: Admissibility and Probative Value
a) Admissibility
This refers to whether evidence meets procedural and formal legal requirements to be considered in establishing facts. Generally, evidence that complies with these requirements is admissible.
b) Probative Value
Probative value measures how effectively evidence can prove the fact in question. It depends on explicit legal provisions and procedural guidelines, as well as the judgment of the examiner or judge. The strength of probative value varies with how well the evidence meets the three characteristics. During case review, evidence may either strengthen or weaken the adjudicator conviction, leading to a final decision based on both evidence and informed judgment.
In summary, to satisfy the high likelihood standard in trademark cases, one must present solid evidence and, through standardized commercial practices, meet the three characteristics and two strengths criteria.
III. Common Challenges in Evidence of Trademark Use
Challenges Across Different Evidence Types
a) Transaction Documents in Traditional Business Models
These primarily include contracts and invoices. Common issues with contracts involve missing details such as the approved goods or services, absence of signing dates, lack of the registered trademark, unclear relationships between parties, ambiguous contract performance locations and durations, missing signatures or seals, and inconsistencies with other evidence. Invoice-related problems include submission of self-generated delivery notes or receipts, discrepancies between invoice details and contracts, unclear payment purposes, and forged or altered invoices that undermine authenticity.
b) Electronic Evidence in E-commerce
This category covers online product displays, customer reviews, media reports, audiovisual materials, and electronic payment records. Typical problems include weak or irrelevant connections to the fact, post-production alterations compromising integrity, and lack of notarization to reinforce key evidence.
Specific issues include promotional content without transactional context, unexplained transfers, unclear usage relationships, and overlaps with contract-related problems.
Issues with Understanding Goods or Service
Problems arise when the goods or services in the evidence do not correspond to those approved for trademark use. When applying for trademark registration, businesses should select standardized goods or services that match their actual operations, based on the Similar Goods and Services Classification Table. This is a key due diligence responsibility. If an exact match is unavailable, applicants should consider the characteristics, functions, raw materials, sales channels, and target consumers of their actual goods or services to identify the closest standardized category.
Since trademarks function as identifiers in commercial activities, their use must occur in public commercial contexts to effectively distinguish the source of goods or services. Current evidence in trademark cases reveals significant issues with non-compliant business practices, underscoring the need for enterprises to prioritize regulatory compliance. This guideline underscores the importance of rigorous standards and meticulous evidence management in trademark use cases, aiming to facilitate fair and effective dispute resolution while promoting lawful commercial conduct.