Notarization of Evidence in China IP Litigation

To achieve success in intellectual property (IP) infringement cases, it is crucial to establish the occurrence of infringement and to secure all pertinent evidence of such activities. In certain jurisdictions, rights holders or their legal representatives are permitted to preserve evidence of infringement. However, in China, the authenticity of evidence collected by rights holders or attorneys is often questioned by infringers and may be challenged in court. According to the Civil Procedure Law, notarized facts and documents are generally accepted by the courts as authentic unless there is contrary evidence. Therefore, obtaining notarization for evidence is a widely recognized practice in China, making it an essential step before initiating any IP litigation.

IThere are two commonly utilized forms of notarization for preserving evidence of infringement in IP cases in China: webpage notarization and purchase notarization.

1. Webpage Notarization

In today’s digital age, online sales and shopping have surged, leading to a shift in infringement from physical to online platforms. Infringers often operate their own websites or utilize online marketplaces like Alibaba or eBay, making it easier for them to erase evidence of their activities or deny any wrongdoing. Consequently, it is vital to notarize relevant web pages to secure evidence of infringement before taking action.

Webpage notarization typically involves an attorney using a Notary office’s computer, with the Notary witnessing the process. The Notary documents the steps taken to access the website and captures screenshots of each relevant page, which are later included in the notarization certificate. In some cases, the entire process may also be recorded on video.

In addition to notarizing pages that demonstrate infringement, it is also important to notarize pages that verify the infringer’s identity, such as domain registration data or information about the online store owner. During the notarization process, it may be necessary to engage in online chats or phone calls with customer service representatives to gather additional information, which can also be documented.

If multiple web pages need to be notarized, it is advisable to rehearse the steps beforehand to ensure that no important pages are overlooked. Webpage notarization is generally a quick and cost-effective process, with certificates typically issued within 1-2 weeks. If a CD containing audio or video is produced, it will be securely sealed and entrusted to the attorney for safekeeping. In many instances, webpage notarization is sufficient to establish both the infringer’s identity and the infringement itself.

2. Purchase Notarization

In situations where webpage notarization alone does not adequately establish the infringer’s identity or the infringement, purchase notarization may be necessary. This process involves a Notary witnessing and documenting the entire purchase of an infringing product, whether online or offline.

3. Online Purchase Notarization

For online sales of infringing products, online purchase notarization is a more economical option compared to offline methods. This process typically occurs in two phases: first, the attorney places an order and makes payment at the Notary office, with the Notary recording the transaction; second, the attorney receives the delivered product, which is also witnessed by the Notary. The Notary will take photographs of the product and any accompanying materials, and all documentation will be compiled into a notarization certificate.

If a sales receipt is created during the notarization, it will be sealed along with the product and other materials. The sealed evidence is then given to the attorney, who must not open it until the court hearing, where it will be opened in the presence of the judge and opposing party to maintain its integrity.

4. Offline Purchase Notarization

In cases where online notarization is insufficient, offline purchase notarization may be required. This involves an attorney or investigator purchasing the infringing product from the infringer’s physical location, accompanied by the Notary, who remains discreet throughout the process. The Notary will document the entire transaction, including photographs and audio or video recordings.

Prior to conducting offline purchase notarization, thorough research and possibly a test purchase are necessary to understand the infringer’s operations. Appointments with Notaries can be challenging to secure, particularly in smaller cities, as many Notaries are hesitant to engage in potentially risky offline notarizations. As a result, planning and preparation are essential, and the process may take several weeks to complete.

5. Conclusion

In conclusion, webpage notarization, along with online and offline purchase notarization, are the most frequently employed methods for preserving and consolidating evidence in IP infringement cases. While basic and cost-effective webpage notarization may suffice in many situations, more complex cases may necessitate online or offline purchase notarization before proceeding with legal action. Tailoring the notarization strategy to the specific case is vital for the success of subsequent legal efforts.