A brief guide for qualified certification documents of the right of representative in a Chinese trademark litigations—US Companies (Delaware)
date: 2021-07-26Fanyu LiuRead by:
If foreign companies / individuals want to entrust a Chinese lawyer to attend litigation in a Court located in China, China Civil Procedural Law requires them to sign a Power of Attorney.
For individuals surely the Power of Attorney should be signed by themselves and at the same time, the copies of the individuals’ valid passports or ID Cards should be submitted along with the signed Power of Attorney. The Court will simultaneously examine both the signed Power of Attorney and valid passports or ID Cards; if the person who signs the Power of Attorney is the person shown on the valid passports or ID Cards, the Court will accept all the documents and the case could be moved forwards.
Compared with individuals, the requirements for companies are more complex, especially for foreign companies.
In China, any type of enterprise must be registered at Chinese Commercial and Industrial Administration and then get a Business License. On a company’s business License, a natural person is designated to be the “Legal Representative” of the company, who can act on behalf of the company, including signing a Power of Attorney. So in China, the Court will examine whether the person signs the Power of Attorney, is the person designed as “Legal Representative” on the company’s business license. Please see below:
However, not all the other countries’ Commercial and Industrial Administrations / Company House issue such a “Business License” indicating the name of the “Legal Representative”, bearing their official seals, since different counties have their own different company laws and adopt their own rules to manage companies.
Therefore, regarding the authorization for a person to sign the required documents, for companies located in different companies, we have different alternative options.
This article is about companies located in the State of Delaware in the USA. Please note the following options are a brief summary of the documents we have submitted, which had already accepted by the Court in recent 3 years.
Original Certificate issued by the Secretary of State of Delaware, indicating the persons who can act on behalf of the company. However, according to our experience, when the companies were founded, seldom companies clearly designate a person and entitle him / her to sign on behalf of the companies company and written the authorization on the original certificates. Usually, the founders are not deemed as the authorized person.
Amended and restated certificate of formation issued by the Secretary of State of Delaware, which indicate the persons who can sign on behalf of the company. Please see below:
A Certification issued by the board of directors in the companies + Original Certificate/ Amended and Restated Certificate of Formation issued by the Secretary of State of Delaware, or any official documents indicating all the members of the board of directors. Please see below:
Resolutions of the Directors issued by all the directors+ Original Certificate/ Amended and Restated Certificate of Formation issued by the Secretary of State of Delaware, or any official documents indicating all the members of the board of directors. Please see below: