"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"

In order to correctly hear civil cases arising from unfair competition , according to the Civil Code of the People's Republic of China and the Anti -Unfair Competition Law of the People's Republic of China 》 " Civil Procedure Law of the People's Republic of China " and other relevant legal provisions , combined with trial practice , this interpretation is formulated .

Article 1 Operators disrupt the order of market competition , damage the legitimate rights and interests of other operators or consumers , and violate Chapter 2 of the Anti - Unfair Competition Law and patent If there are circumstances beyond the provisions of the Law , Trademark Law , Copyright Law, etc. , the People 's Court may apply Article 2 of the Anti-Unfair Competition Law to make a determination .

Article 2 The people's court may determine that market entities that have a relationship with operators that may compete for trading opportunities or damage competitive advantages in production and business activities may They are “ other operators ” specified in Article 2 of the Anti- Unfair Competition Law .

Article 3 Codes of conduct that are generally followed and recognized in specific commercial fields may be recognized by the People's Court as "business ethics" as stipulated in Article 2 of the Anti-Unfair Competition Law. The People's Court shall, based on the specific circumstances of the case, comprehensively consider industry rules or business practices, the operator's subjective state, the choice of transaction counterparties, the impact on consumer rights, market competition order, social public interests and other factors, and judge the operator in accordance with the law. Whether it violates business ethics. When the People's Court determines whether an operator has violated business ethics, it may refer to the professional codes of practice, technical specifications, self-regulatory conventions, etc. formulated by industry authorities, industry associations, or self-regulatory organizations.

Article 4: Marks that have a certain degree of market visibility and have distinctive features that distinguish the source of goods may be recognized by the People's Court as "marks with certain influence" as stipulated in Article 6 of the Anti-Unfair Competition Law. When the People's Court determines whether a logo stipulated in Article 6 of the Anti-Unfair Competition Law has a certain degree of market visibility, it shall comprehensively consider the degree of awareness of the relevant public in China, the time, area, amount and objects of product sales, the duration, extent and quality of publicity. Factors such as geographical scope, status of identification protection, etc.

Article 5 If a mark specified in Article 6 of the Anti-Unfair Competition Law has any of the following circumstances, the people's court shall determine that it does not have distinctive features that distinguish the source of goods:

(1) The common name, graphics, and model of the product;
(2) Marks that only directly indicate the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the goods;
(3) Shape resulting only from the nature of the commodity itself, shape of the commodity required to obtain technical effects, and shape that makes the commodity have substantial value;
(4) Other signs that lack distinctive features. If the signs specified in Items 1, 2 and 4 of the preceding paragraph have acquired distinctive features through use and have a certain degree of market visibility, and the parties request protection in accordance with Article 6 of the Anti-Unfair Competition Law, the People's Court shall support the request. .

Article 6 If the following marks are legitimately used to objectively describe and explain the goods, and the party claims that it falls within the circumstances specified in Article 6 of the Anti-Unfair Competition Law, the People's Court will not support it:

(1) Contains the common name, graphics, and model of the product;
(2) Directly express the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the goods;
(3) Contains place names.

Article 7 If the logo specified in Article 6 of the Anti-Unfair Competition Law or its distinctive identifying part is a mark that is not allowed to be used as a trademark as stipulated in Article 10, Paragraph 1 of the Trademark Law, the party concerned requests that it be processed in accordance with the provisions of Article 6 of the Anti-Unfair Competition Law. Protection, the people's court will not support it.

Article 8 The overall business image with a unique style composed of the decoration of the operator's business premises, the style of business utensils, the clothing of business personnel, etc., may be determined by the People's Court as "the first paragraph of Article 6 of the Anti-Unfair Competition Law". Decoration".

Article 9 The names of enterprises registered in accordance with the law by the market entity registration management department, as well as the names of overseas enterprises used commercially in China, may be recognized by the People's Court as "enterprise names" as stipulated in Paragraph 2 of Article 6 of the Anti-Unfair Competition Law. For the names (including abbreviations, trade names, etc.) of individual industrial and commercial households, farmers' professional cooperatives (federal cooperatives) and other market entities stipulated in laws and administrative regulations that have certain influence, the People's Court may, in accordance with Article 6, Paragraph 2 of the Anti-Unfair Competition Law, Be recognized.

Article 10 Any act of using signs with certain influence on commodities, commodity packaging or containers, and commodity transaction documents within the territory of China, or in advertising, exhibitions, or other commercial activities to identify the source of commodities, may be deemed by the People's Court as "Use" as stipulated in Article 6 of the Anti-Unfair Competition Law.

Article 11 Operators use, without authorization, company names (including abbreviations, trade names, etc.), social organization names (including abbreviations, etc.), names (including pen names, stage names, translated names, etc.), main parts of domain names, and website names that have certain influence on others. , web pages and other similar logos, leading people to mistakenly believe that they are other people’s goods or have a specific connection with others, and if the party’s claim falls under the circumstances stipulated in Items 2 and 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 for judging whether trademarks are identical or similar when they determine that they are identical or similar to a mark that "has a certain influence" as stipulated in Article 6 of the Anti-Unfair Competition Law. Article 6 of the Anti-Unfair Competition Law stipulates that "causing people to mistakenly believe that they are other people's goods or have a specific connection with others" includes mistakenly believing that they have specific connections with others such as commercial alliances, licensed use, commercial naming, advertising endorsements, etc. The use of identical or visually indistinguishable product names, packaging, decoration and other marks on the same goods shall be deemed to be sufficient to cause confusion with other people's marks that have a certain influence.

Article 13 If an operator commits one of the following confusing behaviors, which is enough to cause people to mistake the goods for others or has a specific connection with others, the people's court may determine it in accordance with Article 6, Item 4 of the Anti-Unfair Competition Law:

(1) Unauthorized use of “certain influence” signs other than those specified in Item 1, Item 2, and Item 3 of Article 6 of the Anti-Unfair Competition Law;
(2) Using other people’s registered trademarks or unregistered well-known trademarks as business names to mislead the public.

Article 14 If an operator sells goods with labels that violate the provisions of Article 6 of the Anti-Unfair Competition Law, causing people to mistakenly think that they are other people’s goods or have a specific connection with others, the parties claim that the goods have constituted a violation of the provisions of Article 6 of the Anti-Unfair Competition Law. If the situation arises, the people's court shall support it. If an operator does not know that it is an infringing product as stipulated in the preceding paragraph and is able to prove that the product was obtained legally and explain the supplier, and the operator claims that it is not liable for compensation, the people's court shall support it.

Article 15 If the party intentionally provides warehousing, transportation, mailing, printing, concealment, business premises and other convenient conditions for others to commit acts of confusion, and the party concerned requests to be recognized in accordance with paragraph 1 of Article 1169 of the Civil Code, the people's The court should support it.

Article 16 If an operator provides untrue product-related information in the process of commercial promotion to deceive or mislead the relevant public, the people's court shall determine it as false commercial promotion as stipulated in Article 8, Paragraph 1 of the Anti-Unfair Competition Law.

Article 17 If an operator engages in any of the following behaviors to deceive or mislead the relevant public, the People's Court may determine it as "misleading commercial propaganda" as stipulated in Paragraph 1 of Article 8 of the Anti-Unfair Competition Law:

(1) One-sided promotion or comparison of products;
(2) Treating scientifically unconfirmed opinions, phenomena, etc. as conclusive facts for product promotion;
(3) Using ambiguous language for commercial promotion;
(4) Other commercial publicity behaviors that are misleading. The People's Court shall determine misleading commercial publicity behaviors based on factors such as daily life experience, the general attention of the relevant public, the fact that the misunderstanding occurred, and the actual situation of the publicity target.

Article 18 If a party claims that an operator has violated the provisions of Article 8, Paragraph 1 of the Anti-Unfair Competition Law and requests compensation for losses, it shall provide evidence to prove that it has suffered losses due to false or misleading commercial promotions.

Article 19 If a party claims that an operator has committed a commercial defamation act as stipulated in Article 11 of the Anti-Unfair Competition Law, it shall provide evidence to prove that it is the specific victim of the commercial defamation act.

Article 20 If an operator disseminates false or misleading information fabricated by others and damages the business reputation or product reputation of competitors, the people's court shall determine it in accordance with Article 11 of the Anti-Unfair Competition Law.

Article 21 Target jumps that occur directly without the consent of other operators and users shall be deemed by the People's Court as "forced target jumps" as stipulated in Article 12, Paragraph 2, Item 1 of the Anti-Unfair Competition Law. . If only a link is inserted and the target jump is triggered by the user, the people's court shall comprehensively consider factors such as the specific method of inserting the link, whether there are reasonable reasons, and the impact on the interests of users and other operators, to determine whether the behavior violates anti-unfair competition. The provisions of Article 12, Paragraph 2, Item 1 of the Law.

Article 22 If an operator maliciously interferes with or destroys the network products or services lawfully provided by other operators by misleading, deceiving, or forcing users to modify, close, or uninstall without explicit notification in advance and without obtaining user consent, the People's Court shall Article 12, Paragraph 2, Item 2 of the Anti-Unfair Competition Law shall be recognized.

Article 23 For unfair competition acts stipulated in Articles 2, 8, 11 and 12 of the Anti-Unfair Competition Law, the actual losses suffered by the right holder due to the infringement, the actual losses suffered by the infringer due to the infringement, It is difficult to determine the benefits obtained, and if a party claims to determine the amount of compensation in accordance with paragraph 4 of Article 17 of the Anti-Unfair Competition Law, the people's court shall support it.

Article 24 For infringements 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 copyright, patent right or registered trademark exclusive right has been infringed and ordered to bear civil liability. If the same infringer is required to bear civil liability on the grounds that it constitutes unfair competition, the People's Court will not support it.

Article 25 According to the provisions of Article 6 of the Anti-Unfair Competition Law, if a party's claim for an order to order the defendant to stop using or changing its business name should be supported in accordance with the law, the People's Court shall order a suspension of use of the business name.

Article 26 Civil lawsuits filed due to unfair competition shall be under the jurisdiction of the people's court at the place where the infringement occurred or where the defendant is domiciled.

The people 's court will not support the party's claim that only the place of delivery that the online purchaser can choose is the place of infringement .
Article 27 The alleged unfair competition behavior occurred outside the territory of the People’s Republic of China , but the infringement result occurred within the territory of the People’s Republic of China . If it is claimed that the people's court in the place where the infringement result occurred has jurisdiction , the people's court should support it .
Article 28 Unfair competition civil cases accepted by the People's Court after the implementation of the decision to amend the Anti - Unfair Competition Law involve conduct that occurred before the implementation of the decision . If the Anti- Unfair Competition Law before the amendment is involved , the Anti-Unfair Competition Law before the amendment shall apply ; if it involves conduct that occurred before the implementation of the decision and continued after the implementation of the decision , the Anti - Unfair Competition Law after the amendment shall apply. Fair Competition Law .
Article 29 This interpretation will come into effect on 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 " ( Fa Interpretation [ 2007 ] No. 2 ) was abolished at the same time . This Interpretation shall apply to cases that have not been finalized after the implementation of this Interpretation ; cases that have been finalized before the implementation of this Interpretation shall not be subject to retrial under this Interpretation .

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

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