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

　　[Huixiang Research] Judicial Interpretation of the New Anti-Unfair Competition Law-Huixiang Series Interpretation (II)

　　Judicial Interpretation of the New Anti-Unfair Competition Law-Huixiang Series Interpretation (III)

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.

Beijing Huixiang Law FirmLi DeliThe lawyer combined 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 knowledge, continued to interpret the "Interpretation" for readers' reference and application.

　　Article 23 For the acts of unfair competition stipulated in Articles 2, 8, 11 and 12 of the Anti-Unfair Competition Law, the people's court shall support the actual losses suffered by the obligee as a result of the infringement and the benefits obtained by the infringer as a result of the infringement, and if the parties claim to determine the amount of compensation in accordance with paragraph 4 of Article 17 of the Anti-Unfair Competition Law.

　　Huixiang Interpretation:The fourth paragraph of Article 17 of the Anti-Unfair Competition Law stipulates the statutory compensation system. "If the operator violates the provisions of Articles 6 and 9 of this Law, the actual loss suffered by the obligee due to the infringement and the infringer due to the infringement If the benefits obtained are difficult to determine, the people's court shall award the obligee a compensation of less than 5 million yuan based on the circumstances of the infringement." Articles 6 and 9 are counterfeiting confusion and infringement of trade secrets, respectively.

The statutory compensation system is conducive to solving the problem of the right holder's difficulty in proving damages and improving the efficiency of judicial trials. Article 23 of the interpretation extends the scope of application of the statutory compensation system from counterfeiting confusion and infringement of trade secrets, which are two kinds of unfair competition related to intellectual property rights, to unfair competition acts, false propaganda acts, commercial defamation acts and network unfair competition acts, which provide a legal basis for judicial organs to apply the statutory compensation system.

　　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 determined that the infringement of copyright, patent right or the exclusive right to use a registered trademark, etc. and ordered to bear civil liability, and the party concerned requests the same infringer to bear civil liability on the ground that the act constitutes unfair competition, the people's court shall not support it.

　　Huixiang Interpretation:The anti-unfair competition law provides supplementary protection for intellectual property rights, but it is only a limited supplementary protection. Where the special law has exhausted the provisions, in principle, the anti-unfair competition law will no longer be used for extended protection. 2 Moreover, unfair competition is derived from infringement after all, and infringement of copyright, patent and trademark rights is also a kind of infringement. In this sense, since the people's court has determined that the infringement of copyright, patent and trademark rights is established and ordered the infringer to bear civil liability, the parties claim infringement on the grounds that the act constitutes unfair competition, which obviously should not be supported, otherwise, it will also violate the principle of "no longer reasonable" in the civil procedure law.

　　Article 25 In accordance with the provisions of Article 6 of the Anti-Unfair Competition Law, if the party's claim to order the defendant to stop using or change its enterprise name should be supported in accordance with the law, the people's court shall order the suspension of the use of the enterprise name.

　　Huixiang Interpretation:If the name of the enterprise being sued constitutes unfair competition, the people's court may, in accordance with the plaintiff's claim and the specific circumstances of the case, determine that the defendant shall bear civil liability such as cessation of use and standardized use. 3 For cases where the name of the accused enterprise infringes the trademark right or constitutes unfair competition, whether to order the suspension of the use of the enterprise name shall be based on the specific circumstances of the case, and shall be fair and reasonable on the basis of comprehensive consideration of the degree of subjective fault, historical factors and the current situation of use. Discretion. If the defendant is allowed to continue to use its name and coexist with the plaintiff's trademark and name when the defendant's registration and use of the accused enterprise name are obviously malicious, even if the use of the name is not prominent, for the market, especially for potential buyers, it is still easy to confuse or mistakenly believe that there is an investment or cooperation relationship between the two, it should be judged to stop using or change the enterprise name while constituting infringement of trademark rights, in order to reflect the trademark law to encourage enterprises to operate in good faith, the development of independent brands of the referee-oriented. 4

　　Article 26 A civil lawsuit brought for an act of unfair competition shall be under the jurisdiction of the people's court of the place where the act was infringed or where the defendant has his domicile. If the parties claim that only the place of receipt, which can be arbitrarily chosen by the online buyer, is the place of infringement, the people's court will not support it.

　　Huixiang Interpretation:China's laws or judicial interpretations do not make special provisions on the territorial jurisdiction of unfair competition disputes, and the territorial jurisdiction should be determined in accordance with the general infringement cases in accordance with the law. Article 29 of the Civil procedure Law stipulates that a lawsuit brought as a result of an infringement shall be under the jurisdiction of the people's court of the place where the infringement is committed or where the defendant has his domicile. The place of infringement includes the place where the infringement was committed and the place where the result of the infringement occurred.

In cases of infringement of intellectual property rights and unfair competition, because the goods attached with trademarks or other rights have a wide range of negotiability, and the place of receipt of the infringed products usually has no substantial impact on the implementation of the infringement, so in such cases, if the plaintiff purchases the infringed products through online shopping, it is not appropriate to determine the geographical jurisdiction of the case only as the place of receipt of online shopping. 5 The place where the result of the infringement occurs should be understood as the place where the result of the infringement directly occurs, and the place where the result of the infringement occurs cannot be regarded as the place where the right holder believes that the damage has been done. 6 Otherwise, it is easy to cause the arbitrariness of the jurisdiction and the uncertainty of the jurisdiction.

　　Article 27: Where the alleged act of unfair competition occurred outside the the People's Republic of China field, but the infringement result occurred in the the People's Republic of China field, and the party claims to be under the jurisdiction of the people's court in the place where the infringement result occurred, the people's court shall support it.

　　Huixiang Interpretation:In general, the place where the infringement occurred and the result occurred coincide, and a certain result will be produced after the infringement is implemented. However, in the case of infringement of intellectual property rights and unfair competition, the place where the infringement occurred and the result occurred are divided. The situation is more common. If the act of unfair competition is committed abroad and the result of the infringement occurs in the country, according to the general rules for determining the territorial jurisdiction of the infringement, the territorial jurisdiction may be determined where the result of the infringement occurs.

　　Article 28: Civil cases of unfair competition accepted by the people's courts after the implementation of the decision to amend the Anti-Unfair Competition Law involve acts that occurred before the implementation of the decision, the anti-unfair competition law before the amendment shall apply; it involves acts that occurred before the implementation of the decision. For acts that continue after the implementation of the decision, the revised Anti-Unfair Competition Law shall apply.

　　Huixiang Interpretation:From the perspective of past judicial practice, after the promulgation of new important laws, in order to unify the judgment scale and ensure a smooth transition in the judicial application at the initial stage of the implementation of the new law, the people's court will generally clarify the connection and application of the old and new laws in the form of judicial interpretation. 7 In principle, adhere to the law is not retroactive, in order to protect the public's trust interests, continuing legal facts as an exception to the application of the revised anti-unfair competition law.

　　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 simultaneously.

　　Huixiang Interpretation: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 (Fa Shi [2007] No. 2), which came into effect on February 1, 2007, is aimed at the Anti-Unfair Competition Law before its revision in 2017, and is no longer able to meet the changing needs of practice. The formulation of the "Interpretation" is an important legalization measure for the people's courts to implement the spirit of the revised anti-unfair competition law legislation, summarize judicial practice experience, and unify judgment rules and standards.

1. See Zhang Guangliang, "The Alienation and Reengineering of China's Intellectual Property Legal Compensation System", in "Intellectual Property and Market Competition Research".
2. See the Supreme People's Court's "Opinions on Several Issues Concerning the Overall Situation of Intellectual Property Trials under the Current Economic Situation" (Fafa [2009] No. 23).
3. See the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Civil Disputes over Conflicts between Registered Trademarks, Enterprise Names and Prior Rights (as amended in 2020).
4. See the Guidelines for Trial of Civil Disputes over Trademark Infringement (Revised Edition) of the Jiangsu Provincial Higher People's Court.
5. See the Supreme People's Court's (2016) Civil Ruling No. 107 of the Supreme People's Court.
6. See the Supreme People's Court (2013) Minti Zi No. 16 Ruling Letter.
7. See the Office of the Leading Group for the Implementation of the Civil Code of the Supreme People's Court, "Understanding and Application of Certain Provisions of the Supreme People's Court on the Application of the Time Effect of the the People's Republic of China Civil Code", in People's Justice, No. 10, 2021.

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)