Click to read: [Huixiang Research] Judicial Interpretation of the New Anti-Unfair Competition Law-Huixiang Series Interpretation (I)

The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Anti-Unfair Competition Law of the People's the People's Republic of China of China (hereinafter referred to as the Interpretation) was adopted at the 1862nd meeting of the Judicial Committee of the Supreme People's Court on January 29, 2022, and shall come into force on March 20, 2022.

The author combines the Supreme Court's answers to reporters' questions and the preliminary draft for comments, and at the same time, based on his own understanding and understanding, the author continues to interpret the "Interpretation" for readers' reference and application.

According to the explanation given by the Supreme Court in response to a reporter's question, in 2021, courts at all levels across the country concluded a total of 8654 cases of unfair competition disputes, of which the number of cases of counterfeiting and confusion accounted for a large proportion. The "Interpretation" uses 11 articles, focusing on the following three aspects to refine the provisions of Article 6 "counterfeiting confusion" of the Anti-Unfair Competition Law: First, Article 4 of the "Interpretation" clarifies the "influential" logo The meaning and identification considerations. Second, Article 7 of the interpretation makes it clear that signs that fall within the scope of prohibition of trademark law can not be protected by the anti unfair competition law. The third is to refer to the provisions of Article 2 of the "Regulations on the Registration and Administration of Market Entities" to refine the scope of market entities whose names can be protected.

In addition to the above three key points, there are still many bright spots in Articles 4 to 15 of the "Interpretation" related to Article 6 of the Anti-Unfair Competition Law.

From the macro point of view, counterfeit confusion is one of the earliest types of behavior regulated by the anti-unfair competition law, and with the continuous summary of judicial practice experience, the connotation of counterfeit confusion is also changing, for example, the cross-overlapping part of the trademark law is specifically regulated by the trademark law, the first to third items of Article 6 of the current Anti-Unfair Competition Law are the provisions on unregistered trademarks, market subject marks and business activity marks (together referred to as commercial marks).

Combined with the draft for comments, the "Interpretation" makers seem to be deliberately applying the previous provisions originally applicable to the "commodity name, packaging, decoration, etc." logo to all commercial logos, such as the "Article 8" of the draft for comments.Name, packaging and decoration of goodsOr its prominent identification part belongs to the trademark law article 10 paragraph 1 of the provisions of the mark shall not be used as a trademark, the parties request based onArticle 6 (1) of the Anti-Unfair Competition LawIf it is protected, the people's court shall not support it in accordance with the law." It was eventually amended as "Article 7 of the Interpretation."Article 6 of the Anti-Unfair Competition Law stipulatesThe logo or its prominent identification part belongs to the trademark law article 10, paragraph 1, shall not be used as a trademark mark, the parties request based onArticle 6 of the Anti-Unfair Competition LawThe people's court shall not support the protection of the provisions." Similar substantive changes have been made to other provisions.

Based on this, it is inferred that the framers of the Interpretation should want to express that in Articles 4 to 15 of the Interpretation, those that do not specifically indicate that they are directed at items of Article 6 of the Anti-Unfair Competition Law are unified restrictions on all commercial signs in Article 6, and are not limited to such signs as "commodity name, packaging, decoration, etc.". We can analyze them in combination with specific laws.

　　Article 4 A mark that has a certain market reputation and has the distinctive characteristics of distinguishing the source of goods may be determined by the people's court as the "influential" mark stipulated in Article 6 of the Anti-Unfair Competition Law.

　　When the people's court determines whether the logo stipulated in Article 6 of the Anti-Unfair Competition Law has a certain market reputation, it shall comprehensively consider factors such as the degree of knowledge of the relevant public in China, the time, area, amount and object of commodity sales, the duration, degree and geographical scope of publicity, and the protection of the logo.

　　Huixiang Interpretation:"Have a certain impact" is to identify the common constituent elements of counterfeiting confusion behavior 2, because only commercial signs "have a certain impact", have a certain market awareness, have a certain market competitive advantage, others have the motivation to counterfeit, will be profitable, only "enough" to cause confusion.

It should be noted that Article 4 of the "Interpretation" uses "Article 6 of the Anti-Unfair Competition Law" instead of "Article 6 Item 1 of the Anti-Unfair Competition Law" or several items. Since "certain influence" is an element of conduct contained in items 1 to 3 of Article 6 of the Anti-Unfair Competition Law, in the absence of special clarification by legislators, we believe that it should be understood that Article 4 The interpretation of the concept of "certain influence" and the identification factors is uniformly applicable to all commercial signs in items 1 to 4 of Article 6 of the Anti-Unfair Competition Law.

　　Article 5 Where the mark provided for in Article 6 of the Anti-Unfair Competition Law is in any of the following circumstances, the people's court shall determine that it does not have the distinctive feature of distinguishing the source of the commodity:

　　The common name, figure and model of the (I) commodity;

　　The (II) only directly indicates the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the goods;

　　(III) shapes that result only from the nature of the commodity itself, the shape of the commodity that is necessary to obtain a technical effect, and the shape that gives the commodity substantial value;

　　(IV) other marks that lack distinctive features.

　　If the marks specified in subparagraphs 1, 2 and 4 of the preceding paragraph have been used to obtain distinctive features and have a certain market popularity, and if the parties request protection in accordance with Article 6 of the Anti-Unfair Competition Law, the people's court shall support them.

　　Huixiang Interpretation:Similarly, Article 5 of the "Interpretation" should also be understood as an interpretation of all commercial signs in Article 6 of the Anti-Unfair Competition Law. This provision further explains commercial marks from the perspective of distinctiveness with reference to the provisions of Articles 11 and 12 of the Trademark Law that non-distinctive marks shall not be registered as trademarks.

Fundamentally, commercial signs are a means for operators to carry out market competition, and market competition should be equal opportunities, fair and honest competition. Competitors must not deprive others of reasonable use opportunities by possessing commercial signs that belong to the public domain, and damage other operators. The legitimate rights and interests of consumers, unless the logo has gained significance after being used by the user, has the function of distinguishing the source of goods, and can be given conditional protection.

　　Article 6 The people's court shall not support the legitimate use of the following marks due to objective description and description of goods, and the parties claim that they belong to the circumstances stipulated in Article 6 of the Anti-Unfair Competition Law:

　　The (I) contains the common name, figure and model of this commodity;

　　(II) directly indicate the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the goods;

　　(III) contain place names.

　　Huixiang Interpretation:Under normal circumstances, the lack of significant descriptive commercial signs belongs to the public domain and does not have the function of distinguishing the source of goods. Everyone has the freedom to describe their own products and provide transaction information, which will not damage the competitive rights of other operators and will not violate the competition order. Those commercial signs that are significant due to use or creative combination will become the unique signs of the prior users, however, this kind of logo still has the original meaning or the first meaning. It is used by others to objectively describe and explain the basic information such as the source and quality of the goods. It needs reasonable attention. If it does not cause confusion, it will not harm other operators and consumers. The legitimate rights and interests generally do not constitute unfair competition.

　　Article 7 The people's court shall not support the mark specified in Article 6 of the Anti-Unfair Competition Law or the distinctive identification part thereof that belongs to the mark specified in the first paragraph of Article 10 of the Trademark Law and may not be used as a trademark, and the party concerned requests protection in accordance with the provisions of Article 6 of the Anti-Unfair Competition Law.

　　Huixiang Interpretation:The first paragraph of Article 10 of the Trademark Law provides for eight types of prohibition of registration by way of enumeration. Similar provisions are reflected in laws and regulations such as the Regulations on the Registration of Enterprise Names 3 and the Measures for the Administration of Internet Domain Names 4. It is also applicable to commercial signs regulated by Article 6 of the Anti-Unfair Competition Law. Obviously, special signs belonging to the public domain or signs that violate the law are not protected by the anti-unfair competition law.

　　Article 8 The people's court may determine the overall business image with a unique style consisting of the decoration of the operator's business premises, the style of business appliances, and the clothing of business personnel as the "decoration" stipulated in the first paragraph of Article 6 of the Anti-Unfair Competition Law ".

　　Huixiang Interpretation:According to Article 3 of the "Several Provisions on the Prohibition of Unfair Competition in the Name, Packaging, and Decoration of Counterfeit Commodities" formulated by the former State Administration for Industry and Commerce, "The decoration referred to in these Provisions refers to the identification and beautification of commodities. And the words, patterns, colors and their arrangements and combinations attached to the commodity or its packaging."

According to the legal definition of "decoration", decoration is the logo attached to the commodity or commodity packaging, which is the general characteristic of commodity decoration. For the decoration in the commercial service field, it has its characteristics different from the commodity decoration, which is mainly reflected in the decoration inside and outside the business place that can distinguish the service source, the style of appliances, and the clothing and clothing of service personnel. The overall image composed of these material carriers that reflect the service style and characteristics has the distinctive characteristics of distinguishing the service source, and at the same time has a certain market reputation, which is protected by the anti-unfair competition law, this is particularly common in the field of franchising.

　　Article 9 The name of an enterprise registered by the market entity registration management department in accordance with the law, as well as the name of an overseas enterprise for commercial use in China, may be determined by the people's court as the "enterprise name" as stipulated in Article 6, paragraph 2 of the Anti-Unfair Competition Law ".

　　The names of individual industrial and commercial households, farmers' professional cooperatives (federations) and other market entities (including abbreviations, brand names, etc.) that have certain influence, the people's court may be determined in accordance with Article 6, Item 2 of the Anti-Unfair Competition Law.

　　Huixiang Interpretation:China implements the enterprise name hierarchical management, separate registration system, by the enterprise independent declaration, the local enterprise registration authority for examination and registration, so as to produce the exclusive right of enterprise name. According to the above explanation, unregistered domestic enterprise names are not protected by the anti-unfair competition law.

However, for the name of an overseas enterprise, in order to fulfill the protection obligation of the Paris Convention on the name of the manufacturer, it is not required to register in China, but it needs to have been used commercially in China and has a certain market reputation, which is consistent with Article 4 of the Interpretation that the degree of knowledge of the relevant public in China needs to be considered when determining the market reputation, it is the requirement of the territoriality of the enterprise name and the fulfillment of international treaty obligations.

Individual industrial and commercial households and farmers' professional cooperatives (federations) are both market entities, and their name management can be implemented with reference to the "Regulations on the Registration and Administration of Enterprise Names" and the "Regulations on the Registration and Administration of Market Entities". Protection of the competition law.

　　Article 10 The people's court may determine that the use of marks with certain influence on commodities, commodity packaging or containers and commodity trading documents, or in advertising, exhibitions and other commercial activities to identify the source of commodities within the territory of China is "use" as stipulated in Article 6 of the Anti-Unfair Competition Law ".

　　Huixiang Interpretation:The use of commercial signs in the sense of the anti-unfair competition law should be used to identify the source of goods in production and business activities (commercial activities), which belongs to the commercial use of the basic function of commercial signs, which is the functional requirement of the essence of commercial signs and the boundary scope of behavior regulation. The use of social welfare and personal study and research is not a commercial use and is not restricted by the Anti-Unfair Competition Law. In other words, counterfeit confusion is a kind of commercial use behavior, if there is no commercial use, confusion is impossible to talk about, it will not constitute counterfeit confusion.

　　Article 11 A business operator uses, without authorization, enterprise names (including abbreviations, font sizes, etc.), social organization names (including abbreviations, etc.), names (including pseudonyms, stage names, translated names, etc.), domain names, website names, web pages and other similar signs that have certain influence on others, causing people to mistake them for other people's goods or have specific connections with others, the people's court shall support the claims of the parties that fall under the circumstances specified in paragraphs 2 and 3 of Article 6 of the Anti-Unfair Competition Law.

　　Huixiang Interpretation:This article emphasizes that unauthorized use of signs similar to the commercial signs stipulated in Article 6, Items 2 and 3 of the Anti-Unfair Competition Law also constitutes counterfeiting and confusion. The identification of unfair competition behavior is itself the result of comprehensive consideration of various factors and the balance of interests. The same or similar identification is only one of the factors. Here, it is clear that the approximate identification is included in the scope of regulation, which can reduce unnecessary disputes in judicial practice.

　　Article 12 If the people's court determines that the mark is the same as or similar to the mark "having certain influence" stipulated in Article 6 of the Anti-Unfair Competition Law, it may refer to the principle and method of judging the same or similar trademark.

　　Article 6 of the Anti-Unfair Competition Law stipulates that "people mistakenly believe that they are other people's goods or have a specific connection with others", including mistakenly believing that they have a specific connection with others, such as commercial association, licensing, commercial naming, advertising endorsement, etc.

　　The use of the same or basically visually indistinguishable commodity name, packaging, decoration and other signs on the same commodity shall be deemed to be sufficient to cause confusion with the signs of others.

　　Huixiang Interpretation:This article is a mixture of three knowledge points. The first paragraph is about the judgment of the same or similar marks. Trademark is a typical type of commercial mark. As an independent department law, trademark law has the most perfect legislative system and theoretical system. Therefore, it is more convenient and efficient to refer to the judgment principles and methods of the same or similar marks. The second paragraph is about confusion. Confusion is the result of counterfeiting, and it is also a constituent element of counterfeiting. Confusion includes direct confusion and indirect confusion. Direct confusion means "causing people to mistake for other people's goods". Indirect confusion means that although there is no "causing people to mistake for other people's goods", but "causing people to mistake for having a specific connection with others", this will also damage the legitimate rights and interests of other operators and consumers. The third paragraph is also a question of confusion, but the cognitive perspective is different from the second paragraph. Neither the trademark law nor the anti-unfair competition law requires "actual confusion". As long as there is a "sufficient" possibility of confusion, the use of the same logo can directly presume the possibility of confusion. The purpose of this paragraph should not be limited to "commodity name, packaging, decoration and other logos", and commercial logos such as enterprise name and domain name are also applicable.

　　Article 13 If a business operator commits one of the following confusing acts, which are sufficient to cause people to mistakenly believe that it is another person's product or has a specific connection with another person, the people's court may determine it in accordance with Article 6, Item 4 of the Anti-Unfair Competition Law:

　　(I) the unauthorized use of the logo "with certain influence" other than the provisions of Article 6, Items 1, 2 and 3 of the Anti-Unfair Competition Law;

　　(II) mislead the public by using other people's registered trademarks and unregistered well-known trademarks as the font size in the enterprise name.

　　Huixiang Interpretation:The fourth item of Article 6 of the Anti-Unfair Competition Law is a comprehensive clause, which is to solve other commercial logo counterfeiting or other forms of counterfeiting confusion except for the first three clearly stipulated commercial logo counterfeiting confusion. It should be noted here that the first to third items of Article 6 of the Anti-Unfair Competition Law have the word "etc." in addition to the specific signs listed, such as the first item "commodity name, packaging, decoration, etc." The "shape" can be included in this "etc.", all belong to unregistered trademark signs that distinguish the source of goods, and the two belong to a parallel relationship. However, the mark of "other than" in item 1 of Article 13 of the interpretation belongs to the mark that cannot be included in any of items 1 to 3 of Article 6, which needs to be distinguished in practice according to the specific circumstances of the case.

The second item of Article 13 of the Interpretation is a response to Article 58 of the Trademark Law. 5. The essence is to solve the problem of conflict of rights of commercial marks. It is necessary to pay attention to the use of registered trademarks and unregistered well-known trademarks as brand names in enterprise names and prominent use on the same or similar commodities. The essence is to use enterprise names as trademarks, mainly based on the theory of infringement of trademark rights; on different or similar goods, or not prominently used, belongs to the use of enterprise names, mainly to counterfeit confusion behavior theory. However, it is not absolute, so the "interpretation" deletes the "not prominently used" in the draft opinion, and it is necessary to determine the cause of the case comprehensively.

　　Article 14 Where a business operator sells a commodity with a logo that violates the provisions of Article 6 of the Anti-Unfair Competition Law, and causes people to mistakenly believe that it is the commodity of another person or has a specific connection with another person, and the party's claim constitutes the provisions of Article 6 of the Anti-Unfair Competition Law Where the circumstances, the people's court shall support it.

　　If the sale does not know to be an infringing commodity as stipulated in the preceding paragraph can prove that the commodity was legally obtained by itself and explain the provider, and the operator claims not to be liable for compensation, the people's court shall support it.

　　Huixiang Interpretation:If the seller knows or should know that the goods sold are counterfeit goods, he should be based on the theory of counterfeit confusion and bear legal responsibilities such as stopping infringement and compensating for losses in accordance with the Anti-Unfair Competition Law. If the operator does not know that the goods sold are counterfeit goods, it still constitutes direct infringement. If he can prove that the acquisition method is legal and explain the provider, such as providing the purchase invoice, payment certificate and the valid and true subject information of the provider, you may not be liable for damages, but you should still be liable to stop the infringement.

　　Article 15: Deliberately providing storage, transportation, mailing, printing, concealment, business premises and other convenient conditions for others to commit confusion, if the parties request to be determined in accordance with the first paragraph of Article 1,169 of the Civil Code, The people's court shall support it.

　　Huixiang Interpretation:The first paragraph of Article 1,169 of the Civil Code stipulates that anyone who instigates or helps others to commit a tort shall be jointly and severally liable with the perpetrator. This article is a provision on abetting and aiding a joint tort. Deliberately providing convenience for others to commit confusion is an act of help and is jointly and severally liable for tort with the person who committed the confusion.

1. When the Anti-Unfair Competition Law was revised in 2017, the act of counterfeiting the registered trademark of another person in Article 5 of the Anti-Unfair Competition Law of 1993 was deleted and specifically regulated by the Trademark Law.
2. The first to third items of Article 6 of the Anti-Unfair Competition Law all contain the elements of "having certain influence.
3. See Article 11 of the Regulations on the Registration of Enterprise Names.
4. See Article 28 of the Measures for the Administration of Internet Domain Names.
5. See Article 58 of the Trademark Law, "If another person's registered trademark or unregistered well-known trademark is used as the name of an enterprise, misleading the public and constituting an act of unfair competition, it shall be dealt with in accordance with the Anti-unfair Competition Law of the the People's Republic of China."

(to be continued)

Author Introduction

Li Deli

Director of Intellectual Property Law Committee and Patent Agent of Beijing Huixiang Law Firm.Master of Law in Intellectual Property, Zhongnan University of Economics and Law. Focus on the field of intellectual property legal services, including but not limited to copyright, trademark rights, patent rights, unfair competition, franchising, technology contracts, trade secrets and other litigation business, as well as copyright registration, trademark application, trademark review, patent application, patent Invalidation and other non-litigation services.

Main performance:

Participating in the service of perennial legal advisers include Baidu, Tencent, Aerospace Star, Guangzhou Shiyu, Beijing Yunshang Xintong, Beijing International Chinese Language Institute and other companies and enterprises and institutions. In addition, many pictures, music, text and other works of information network dissemination rights infringement, computer software infringement, network infringement and other litigation cases. For Jingdong, West Master, new oxygen, Nomi and other brands to provide trademark application, rejection review, objection and other assessment services. Provide patent application services for Guangzhou Shiyu, Jianxin Finance and other units.

Typical cases (partial):
1. Acting for many patent infringement cases, such as Anfang Gaoke v. Sichuan Xingtiandi patent infringement dispute
2. Acting for many copyright infringement cases, such as acting for weibang construction construction design company v. China railway construction group and other construction drawing copyright infringement disputes (typical works infringement cases in the construction field)
3. Acting for many trademark infringement cases, such as Baidu Company v. Babing Cat Company and other trademark infringement and unfair competition disputes.
4. Acting for many unfair competition cases, such as the unfair competition dispute case of Baidu Company v. Suzhou Mengxiyou Company (the first unfair competition case of online library in China)