Preservation of evidence through notarisation

In the course of economic transactions, businesses may find themselves facing infringements on their rights by other parties. To protect their interests, businesses often opt to preserve evidence of such infringements through notarisation, ensuring they have a solid foundation for potential administrative or legal proceedings. Drawing from experience in infringement cases involving notary offices, the author shares insights on the evidence preservation practice.

Legal basis

Article 2 of the Notarisation Law defines notarisation as the act performed by notary organisations in accordance with statutory procedures, where they attest to the authenticity and legality of civil legal acts, legal facts and documents on application by natural persons, legal entities or other organisations.

Article 72 of the Civil Procedure Law further establishes that legal facts and documents proven through notarisation in accordance with statutory procedures shall serve as the basis for the court’s determination of facts, unless there is opposing evidence sufficient to overturn the notarisation.

Evidently, most civil legal acts are not required to be notarised under Chinese law. However, when it comes to legal facts and documents notarised, they have greater legal validity than those that are not.

Matters of note

Documentary notarisation requires authenticity and validity of documents. For documents required by the notary office – such as proof of legal entity status and identification of the legal representative; authorisation letter and identification for agents; the document to be notarised; supporting evidence for the matter to be notarised; and any other relevant materials – the applicant must promptly and accurately submit authentic and valid documents to prevent the possibility of rendering the notarised certificate void due to flawed application materials. This could adversely impact subsequent rights protection.

Webpage notarisation does not allow for subsequent reproduction. When applying for webpage notarisation, it’s crucial to request a sufficient number of copies during the notarisation process. Webpage notarisation serves as evidence of the content and status of a specific webpage at a particular moment.

Unlike notarisation for legal documents such as business licences or trademark registrations, which have stable and unalterable statuses unless legally modified, webpage content can be altered by the website operator at any time, making it inherently unstable and prone to change.

Therefore, applicants seeking to preserve evidence through webpage notarisation should create an adequate number of copies during the notarisation process, as additional notarised copies cannot be requested once the webpage notarisation process is complete.

Notarising purchases of infringing goods should be made in full communication with the seller in advance, ensuring required material is obtained. In the process of gathering evidence for infringement cases, securing a notarised record of purchasing infringing goods is often essential to establish the link between goods and the infringing party.

However, due to the unique nature of these goods, buying them directly from the infringing party may be necessary. When handling such notarisations, thorough communication with the infringing party beforehand is crucial to avoid unexpected complications.

For instance, company A in location A needed to physically purchase infringing products in location B as part of their IP rights protection process. It was essential for the official seal on the purchase invoice to match the name of the infringing party precisely. This alignment was crucial to later include the infringing party as a defendant in potential litigation.

However, during the actual purchase, company A solely focused on the specifics of the infringing goods and failed to confirm other essential details. This oversight resulted in a situation where the financial personnel of the infringing party were unavailable at the time of purchase, making it impossible to issue an invoice or affix the official seal.

Consequently, company A had to return to location B with a notary officer later on to obtain the required documentation, significantly increasing the costs associated with its rights protection efforts.

What’s more critical is that, in practice, some infringing parties become more cautious over time. They may start suspecting that the purchase is an attempt by the company to preserve evidence for future legal action.

In response, they might refuse to provide invoices, causing the notarised purchase to fall short of its intended effect. In such cases, the notarisation applicant would have to employ alternative means to substantiate the source of the purchased infringing goods, inevitably leading to increased time and financial costs.

Preserving evidence through notary organisations is still the prevailing means of obtaining evidence. In cases involving infringement evidence, evidence preserved through notarisation holds greater probative value than general evidence.

In recent years, an increasingly popular alternative is to use third-party platforms for evidence preservation, which carries similar probative value. However, practical challenges arise due to the need for parties involved to use these platforms themselves, often lacking proper supervision.

Particularly when it comes to preserving evidence of purchasing infringing goods, electronic evidence preservation methods necessitate skilled handling of preservation tools and a wealth of experience in the collection process. Otherwise, it will easily lead to a break in the evidence chain or loss of probative value.

In real litigation cases, there have been instances where buyers purchased infringing goods online, but during the offline inspection and collection process improper handling caused goods to move out of the camera’s reach momentarily. As a result, the entire evidence was not accepted by the court.

In contrast, notarial certificates issued by notary organisations provide a more comprehensive and visually clear explanation of how the infringing products were obtained, through both the notarial description and on-site photographs. Therefore, preserving evidence through notary organisations remains the most effective method for gathering evidence in current practice.

Liang Xinzhu is an attorney at CCPIT Patent and Trademark Law Office. She can be contacted at +86 10 6604 6271 or by e-mail at liangxzh@ccpit-patent.com.cn.