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Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Anti-Unfair Competition Law of the People's Republic of China(2022.3)
The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Anti-Unfair Competition Law of the People's Republic of China was adopted by the 1862nd meeting of the Judicial Committee of the Supreme People's Court on January 29, 2022, and is hereby promulgated and shall come into force on March 20, 2022.
The Supreme People's Court
March 16th, 2022
Law Interpretation [2022] No. 9
The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Anti-Unfair Competition Law of the People's Republic of China
For the correct trial of civil cases arising from unfair competition, this interpretation is formulated in accordance with the Civil Code of the People's Republic of China, the Anti-Unfair Competition Law of the People's Republic of China, the Civil Procedure Law of the People's Republic of China and other relevant laws and regulations, and in conjunction with trial practice.
Article 1 Where if business operators disrupt the order of market competition, damage the legitimate rights and interests of other business operators or consumers, which belong to violation of Chapter II of Anti-Unfair Competition Law and circumstances that beyond the provisions of Patent Law, Trademark Law, Copyright Law and other laws, the People's Court may apply Article 2 of the Anti-Unfair Competition Law to make determination.
Article 2 The people's court may determine the market player that may compete for trading opportunities and damage competitive advantage with business operators in production and business activities as “other business operators” specified in Article 2 of the Anti-Unfair Competition Law.
Article 3 The people's court may recognize the code of conduct generally followed and recognized in specific business fields as “business ethics” stipulated in Article 2 of the Anti-Unfair Competition Law.
The people's court shall, in combination with the specific circumstances of the case, comprehensively consider the factors including industrial rules or business practices, the subjective state of the business operator, the transaction counterpart’s willingness to choose, the impact on the rights and interests of consumers, the order of market competition, social and public interests, to judge whether the business operator violates business ethics according to law.
When determining whether a business operator violates business ethics, the people's court may refer to the professional norms, technical norms and self-discipline conventions formulated by the competent authorities, industry associations or self-discipline organizations.
Article 4 The People's Court may recognize the sign with a certain degree of market recognition and distinctive features to distinguish the source of goods as a sign with a certain influence as stipulated in Article 6 of the Anti-Unfair Competition Law.
The People's Court shall take into account the extent to which the relevant public in China is aware of the mark, the time, area, amount and target consumers of the sale of goods, the duration, extent and territorial scope of the publicity, and the protection of the sign, etc. in determining whether the sign has a certain degree of market popularity as prescribed in Article 6 of the Anti-Unfair Competition Law.
Article 5 Where if the sign stipulated in the Article 6 of the Anti-Unfair Competition Law has one of the following circumstances, the people's court shall determine that it does not have the distinctive features to distinguish the source of goods:
(i) The generic name, graphics, model of goods;
(ii) The sign s that only directly indicate the quality of goods, the main raw materials, function, use, weight, quantity and other characteristics;
(iii) Shapes that result solely from the nature of the goods, shapes that are necessary to achieve technical effects, and shapes that give the goods substantial value;
(iv) Other signs lacking of distinctive features.
The people's court shall support the party's request for protection in accordance with the provisions of Article 6 of the Anti-Unfair Competition Law if the a sign specified in Items 1, 2 and 4 of the preceding paragraph has achieved distinctive characteristics through use and has certain market popularity.
Article 6 The people's court shall not support the party's claim that the legitimate use of the following signs due to the objective description and description of the goods belongs to the circumstances specified in Article 6 of the Anti-Unfair Competition Law.
(i) Containing the generic name, graphics and model of the goods;
(ii) Directly indicating the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the goods;
(iii) Containing geographic name.
Article 7 Where if the sign or its distinctive part specified in Article 6 of the Anti-Unfair Competition Law belongs to the sign that shall not be used as a trademark as specified in Paragraph 1 of Article 10 of the Trademark law, and the party requests for the protection in accordance with the provisions of Article 6 of the Anti-Unfair Competition Law, the people's court shall not support it.
Article 8 Where if the business operator’s premises decoration, the style of business appliances, the clothing of business personnel, etc. constitute a unique style of the overall business image, the people's court may recognize it as the “decoration” prescribed in Item 1 of Article 6 of the Anti-Unfair Competition Law.
Article 9 The people's court may recognize the corporate name registered by the market entity registration administration department in accordance with the law and the foreign corporate name used for business within the territory of China as the “corporate name” prescribed by the Item 2 of Article 6 of the Anti-Unfair Competition Law.
The people's court may determine the names (including the shortened name, trade name, etc.) of individual business, Farmers' Specialized Cooperative (federations) and other market entities provided by law or administrative regulation that have a certain influence in accordance with Item 2 of Article 6 of the Anti-Unfair Competition Law.
Article 10 The people's court may recognize the use of signs with certain influence on goods, goods packaging or containers and commodity trading documents, or in advertising, exhibition and other business activities within the territory of China, to identify the source of goods as the "use" stipulated in Article 6 of the Anti-Unfair Competition Law.
Article 11 Where if the business operator uses without authorization the signs that are similar to the corporate name (including shortened name, trade name, etc.), social organization name (including shortened name, etc.), name (including pen name, stage name, translation name, etc.), main part of domain name, website name, web page, etc. of others that have a certain influence, which leads people to misunderstand that it is another person's goods or has a specific connection with others, and the party claims that it belongs to the situations in Item 2 and Item 3 of Article 6 of the Anti-Unfair Competition Law, the people's court shall support it.
Article 12 The people's court may refer to the principles and methods of determining identical or similar trademarks when determining that a sign is identical or similar to a sign with certain influence as stipulated in Article 6 of the Anti-Unfair Competition Law.
“Lead people to misunderstand that it is another person's goods or has a specific connection with others” stipulated in Article 6 of the Anti-Unfair Competition Law includes misleadingly believing that it has a specific connection with another person such as business association, license use, title sponsor, advertising endorsement, etc.
The use of the same or visually indistinguishable trade names, packaging, decoration and other signs on the same goods shall be deemed to be sufficient to cause confusion with others’ signs with certain influence.
Article 13 Where if a business operator commits one of the following confusing acts, which is sufficient to lead people to misunderstand that it is the goods of others or has a specific connection with others, the people's court may determine it in accordance with Item 4 of Article 6 of the Anti- Unfair Competition Law:
(i)Unauthorized use of signs “with certain influence” other than those specified in Items 1, 2 and 3 of Article 6 of the Anti- Unfair Competition Law;
(ii)Using others' registered trademarks or unregistered well-known trademarks as trade names in corporate names to mislead the public.
Article 14 Where if a business operator sells goods with a sign that violates Article 6 of the Anti-Unfair Competition Law and leads people to misunderstand that it is another person's goods or has a specific connection with another person, and the party claims that it constitutes a situation stipulated in Article 6 of the Anti-Unfair Competition Law, the People's Court shall support it.
If the seller does not know that is the infringing goods specified in the preceding paragraph and can prove that the goods are lawfully acquired and provides the name of the provider, the people's court shall support the business operator’s claim of not being liable for compensation.
Article 15 Where if any person who intentionally provides storage, transportation, mailing, printing, concealment, business premises and other facilities for others to commit confusing acts, for which the party requests make determination in accordance with Paragraph 1 of Article 1,169 of the Civil Code, the People's Court shall support it.
Article 16 Where if business operators provide untrue information related to goods to deceive and mislead the relevant public in commercial propaganda, the people's court shall determine it as false commercial propaganda under Paragraph 1 of Article 8 of the Anti-Unfair Competition Law.
Article 17 If a business operator commits one of the following acts to deceive or mislead the relevant public, the people's court may determine it as "misleading commercial propaganda” stipulated in paragraph 1 of Article 8 of the Anti-Unfair Competition Law:
(i)One-sided propaganda or comparison of goods;
(ii)The use of scientifically undetermined opinions and phenomena as conclusive facts for the promotion of goods;
(iii)Use of ambiguous language for commercial propaganda;
(iv)Other commercial propaganda acts that are misleading.
The people's court shall determine the misleading commercial propaganda based on factors such as daily life experience, the general attention of the relevant public, the fact that misunderstanding occurred and the actual situation of the subject of the propaganda.
Article 18 The party claiming that the business operator violated the provisions of Paragraph 1 of Article 8 of the Anti-Unfair Competition Law and requesting compensation for damages shall prove the losses he or she suffered due to false or misleading commercial advertising.
Article 19 The party claiming that the business operator has carried out the commercial defamation prescribed in Article 11 of the Anti-Unfair Competition Law shall prove that he or she is the specific target suffered due to the commercial defamation.
Article 20 Where if business operators disseminate false or misleading information fabricated by others to damage the business reputation and commodity reputation of competitors, the people's court shall determine it in accordance with Article 11 of the Anti-Unfair Competition Law.
Article 21 The People's Court shall recognize the target jump that occurs directly without the consent of other operators and users as "forced target jump" as stipulated in Item 1 of Paragraph 2 of Article 12 of the Anti-Unfair Competition Law.
Where if only the link is inserted and the target jump is triggered by the user, the people's court shall take into account the specific manner of inserting the link, whether it has reasonable grounds and the impact on the interests of the user and the interests of other operators to determine whether the act violates the provisions of Item 1 of Paragraph 2 of Article 12 of the Anti-Unfair Competition Law.
Article 22 Where if a business operator maliciously interferes with or destroys the network products or services lawfully provided by other business operators by misleading, deceiving, forcing users to modify, close or uninstall without a clear notice in advance and with the consent of users, the people's court shall determine it in accordance with Item 2 of Paragraph 2 of Article 12 of the Anti-Unfair Competition Law.
Article 23 For the acts of unfair competition stipulated in Articles 2, 8, 11 and 12 of the Anti-Unfair Competition Law, if it is difficult to determine the actual losses suffered by the right holder due to the infringement and the benefit gained by the infringer due to the infringement, and the party claims to determine the amount of compensation according to paragraph 4 of Article 17 of the Anti-Unfair Competition Law, the people's court shall support it.
Article 24 For the infringement committed by the same infringer against the same subject at the same time and within the same geographical scope, the people's court has found that infringement of copyright, patent rights or exclusive rights of registered trademark and ordered to bear civil liability, if the party requests the same infringer to bear civil liability again on the ground that the act constitutes unfair competition, the people's court shall not support it.
Article 25 According to the provisions of Article 6 of the Anti-Unfair Competition Law, if the party's claim of ordering the defendant to stop using or change its corporate name should be supported according to law, the people's court shall order to stop using the corporate name.
Article 26 A civil lawsuit brought for an act of unfair competition shall be under the jurisdiction of the people's court in the place where the infringement is committed or where the defendant domiciles.
Where the party claims the place of receipt that only the online buyer can arbitrarily choose to be the place of infringement, the people's court shall not support it.
Article 27 Where if the alleged unfair competition act occurs outside the territory of the People’s Republic of China, but the infringement result occurs within the territory of the People’s Republic of China, and the party claims that the people's court in the place where the infringement result occurs has jurisdiction, the people's court shall support it.
Article 28 For civil cases of unfair competition accepted by the people's courts after the implementation of the decision to amend the Anti-Unfair Competition Law, if the acts before the implementation of decision is involved, the pre-amendment Anti-Unfair Competition Law shall apply; if it involves acts that occurred before the implementation of the decision and continued after the implementation of the decision, the amended Anti-Unfair Competition Law shall apply.
Article 29 This interpretation shall come into force as of March 20, 2022. The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Cases of Unfair Competition (Law Interpretation [2007] No. 2) shall be repealed at the same time.
This interpretation shall apply to the cases that have not been finalized after the implementation of this interpretation; this Interpretation shall not be applied to the cases that have been finalized before the implementation of this interpretation.
