Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Civil Disputes Involving the Protection of Well-known Trademarks

(Adopted at the 1467th Meeting of the Judicial Committee of the Supreme People's Court on April 22, 2009 ) Fa Interpretation [2009] No. 3

Article 1: Well-known trademarks as mentioned in this interpretation refer to trademarks that are widely known to the relevant public within the territory of China.

Article 2 In the following civil dispute cases, the parties use the well-known trademark as the factual basis. If the people's court deems it necessary based on the specific circumstances of the case, it will determine whether the trademark involved is well-known:

(1) A trademark infringement lawsuit filed on the grounds of violation of Article 13 of the Trademark Law;

(2) A lawsuit filed on the grounds that the company name is identical or similar to its well-known trademark Litigation of trademark infringement or unfair competition;

(3) Litigation of defense or counterclaim stipulated in Article 6 of this Interpretation.

Article 3 In the following civil dispute cases, the people's court will not examine whether the trademark involved is well-known:

(1) A person accused of infringement of trademark rights or unfair competition The establishment is not based on the fact that the trademark is well-known;

(2) The alleged infringement of trademark rights or unfair competition is not established because other elements stipulated by law are not met.

If the plaintiff files an infringement lawsuit on the ground that the domain name registered and used by the defendant is identical or similar to its registered trademark, and the e-commerce transactions of related goods are conducted through the domain name, it is enough to cause the relevant public to misunderstand, the infringement lawsuit shall be governed by the preceding paragraph. The provisions of item (1) shall be dealt with.

Article 4: When determining whether a trademark is well-known, the people's court shall base it on the facts proving that it is well-known and comprehensively consider various factors stipulated in Article 14 of the Trademark Law. However, this article does not need to be considered based on the specific circumstances of the case. Except for situations where all the stipulated factors are sufficient to determine the trademark is well-known.

Article 5 If a party claims that a trademark is well-known, it shall provide the following evidence based on the specific circumstances of the case to prove that its trademark was already well-known when the alleged infringement of trademark rights or unfair competition occurred:

(1) The market share, sales area, profits and taxes, etc. of the goods using the trademark;

(2) The duration of continuous use of the trademark;

(3) The trademark The method, duration, extent, capital investment and geographical scope of publicity or promotional activities;

(4) Records that the trademark has been protected as a well-known trademark;

(5) ) The market reputation enjoyed by the trademark;

(6) Other facts proving that the trademark is well-known.

The time, scope, method, etc. of use of the trademark involved in the preceding paragraph, including its continued use before registration approval.

For evidence such as the length of time a trademark has been used, industry rankings, market research reports, market value assessment reports, and whether it has ever been recognized as a famous trademark, the people's court should combine it with other evidence to determine that the trademark is well-known, objectively and comprehensively Conduct review.

Article 6 The plaintiff files a civil lawsuit on the ground that the use of the accused trademark infringes upon its exclusive right to register a trademark. The defendant files a civil lawsuit on the ground that the plaintiff’s registered trademark copies, imitates or translates its previously unregistered well-known trademark. Those who defend or file a counterclaim shall bear the burden of proof of the fact that their previously unregistered trademark is well-known.

Article 7 If a trademark that is accused of infringement of trademark rights or unfair competition has been recognized as well-known by the people's court or the administrative department for industry and commerce of the State Council before the occurrence, and the defendant does not object to the fact that the trademark is well-known, The people's court shall determine it. If the defendant raises objections, the plaintiff shall still bear the burden of proof of the fact that the trademark is well-known.

Except as otherwise provided in this interpretation, the People's Court does not apply the self-admission rules of evidence in civil litigation to the fact that a trademark is well-known.

Article 8: For a trademark that is widely known to the public in China, if the plaintiff has provided basic evidence that the trademark is well-known, or the defendant has no objection, the people's court shall determine the fact that the trademark is well-known. .

Article 9 is enough to cause the relevant public to misunderstand the source of the goods using the well-known trademark and the accused trademark, or to make the relevant public think that there is a license between the operators using the well-known trademark and the accused trademark , affiliated enterprise relationships and other specific connections, it falls into the category of "likely to cause confusion" as stipulated in Article 13, Paragraph 1, of the Trademark Law.

If it is enough to make the relevant public think that the accused trademark has a considerable degree of connection with the well-known trademark, thereby weakening the distinctiveness of the well-known trademark, disparaging the market reputation of the well-known trademark, or unfairly exploiting the market reputation of the well-known trademark, It falls under Article 13, Paragraph 2 of the Trademark Law, which “misleads the public, causing the interests of the registrant of the well-known trademark to be potentially damaged.”

Article 10 If the plaintiff requests to prohibit the defendant from using a trademark or business name that is the same as or similar to the plaintiff’s well-known registered trademark on dissimilar goods, the people’s court shall take into account the following factors based on the specific circumstances of the case. Make a judgment:

(1) The degree of distinctiveness of the well-known trademark;

(2) The degree of awareness of the well-known trademark among the relevant public who use the goods with the accused trademark or company name ;

(3) The degree of connection between the goods using the well-known trademark and the goods using the accused trademark or company name;

(4) Other relevant factors.

Article 11 If the registered trademark used by the defendant violates the provisions of Article 13 of the Trademark Law and copies, imitates or translates the plaintiff's well-known trademark, thus constituting an infringement of trademark rights, the People's Court shall, at the request of the plaintiff, in accordance with the law The judgment prohibits the defendant from using the trademark, but if the defendant’s registered trademark has any of the following circumstances, the people’s court will not support the plaintiff’s request: (1) It has exceeded Article 41, 2 of the Trademark Law The time limit for requesting revocation stipulated in this paragraph;

(2) When the defendant applied for registration, the plaintiff’s trademark was not well-known.

Article 12 If a party requests protection for an unregistered well-known trademark that is not allowed to be used or registered as a trademark as stipulated in Articles 10, 11 and 12 of the Trademark Law, the People’s Court will not grant the request. support.

Article 13 In civil dispute cases involving the protection of well-known trademarks, the people's court's determination that a trademark is well-known shall only be used as the facts of the case and the reasons for the judgment, and shall not be included in the main text of the judgment; if the trial is concluded through mediation, The fact that the trademark is well-known will not be recognized in the mediation letter.

Article 14 If the previous judicial interpretation of this court is inconsistent with this interpretation, this interpretation shall prevail.