Click：213Document Number: No. 9 [2022] of the Supreme People's Court
Area of Law: Anti-Unfair Competition
Level of Authority: Judicial Interpretation
Date Issued: 03-16-2022
Effective Date: 03-20-2022
Issuing Authority: Supreme People's Court
Status: Effective
Article 2 For market participants in a potential relationship of competing for trading opportunities or diminishing competitive advantages, among others, with businesses in production and business activities, the people's court may determine the market participants as "other businesses" in Article 2 of the Anti-Unfair Competition Law.
Article 3 The people's court may determine a code of conduct generally followed and recognized in a specific commercial field as "business ethics" specified in Article 2 of the Anti-Unfair Competition Law.
The people's court shall, in light of the specific circumstances of a case, take into account factors such as industry rules or business usage, the subjective condition of a business, the will to choose of transaction counterparties, and the impact on the rights and interests of consumers, the order of market competition, and the public interest in judging in accordance with the law whether the business violates business ethics.
When determining whether a business violates business ethics, the people's court may refer to the practice standards, technical standards, and self-regulatory conventions, among others, formulated by industry authorities, industry associations, or self-regulatory organizations.
Article 4 For a label of a certain degree of market recognition with distinctive characters distinguishing the source of commodities, the people's court may determine it as a label "with certain influence" in Article 6 of the Anti-Unfair Competition Law.
In determining whether a label specified in Article 6 of the Anti-Unfair Competition Law is of a certain degree of market recognition, the people's court shall take into account the degree of recognition by the relevant members of the public in the territory of China, the time, area, amount, and target of the sale of commodities, the duration, degree, and geographical extent of publicity, and the protection afforded to the label, and other factors.
Article 5 Where a label specified in Article 6 of the Anti-Unfair Competition Law falls under any of the following circumstances, the people's court shall determine that it does not have distinctive characters that distinguish the source of commodities:
(1) The generic name, image, and model of the commodities.
(2) A label only directly indicating the quality, main raw materials, functions, uses, weight, quantity, or other features of commodities.
(3) Consisting exclusively of the shape resulting from the nature of commodities themselves, the shape of commodities which is necessary to obtain a technical result, or the shape which gives substantial value to the commodities.
(4) Other labels lacking distinctive characters.
Where a label specified in subparagraphs (1), (2), and (4) of the preceding paragraph acquires distinctive character through use and is of a certain degree of market recognition, and a party claims protection in accordance with Article 6 of the Anti-Unfair Competition Law, the people's court shall uphold the claim.
Article 6 Where a party contends that its lawful use of the following labels for objective description and explanation of commodities falls under the circumstances stipulated in Article 6 of the Anti-Unfair Competition Law, the people's court shall not uphold the contention:
(1) Containing the generic name, image, and model of the commodities.
(2) Only directly indicating the quality, main raw materials, functions, uses, weight, quantity, or other features of the commodities.
(3) Containing a place name.
Article 7 Where a party claims provision of protection in accordance with Article 6 of the Anti-Unfair Competition Law to a label specified in Article 6 of the Anti-Unfair Competition Law, or its distinctive identifying part that is a label which shall not be used as a trademark according to paragraph 1 of Article 10 of the Trademark Law, the people's court shall not uphold the claim in accordance with the law.
Article 8 For an overall business image of a unique style consisting of the decor of the business premises of a business, the style of business equipment, and the clothing of sales assistants, among others, the people's court may determine it as the "decoration" specified in Article 6(1) of the Anti-Unfair Competition Law.
Article 9 An enterprise name registered with the market participant registration authorities according to the law, or the name of an overseas enterprise for commercial use in China may be determined by the people's court as the "name of an enterprise" specified in Article 6(2) of the Anti-Unfair Competition Law.
The people's court may determine the name (including without limitation an abbreviation or trade name) of an individual industrial and commercial household with certain influence, a farmers' professional cooperative or association, or any other market participant specified by laws and administrative regulations, in accordance with Article 6(2) of the Anti-Unfair Competition Law.
Article 10 For an act of using a label with certain influence in the territory of China for commodities, packaging or containers of commodities, or commodities transaction documents, or identification of the source of commodities in commercial activities such as advertising, publicity, and exhibitions, the people's court may determine the act as "use" specified in Article 6 of the Anti-Unfair Competition Law.
Article 11 Where a business uses a label similar to the enterprise name (including without limitation an abbreviation or trade name), social organization name (including without limitation an abbreviation), name (including without limitation a pen name, stage name, or translated name), the main part of a domain name, website name, or webpages, among others, of another person with certain influence without authorization, misleading a person into believing that a commodity is one of another person or has a particular connection with another person, and a party contends that there is a circumstance specified in Article 6(2) and (3) of the Anti-Unfair Competition Law, the people's court shall uphold the contention.
Article 12 The people's court may apply the principles and methods for judgments about the identicalness or similarity of trademarks, mutatis mutandis, to the determination of the identicalness or similarity to a label "with certain influence" as specified in Article 6 of the Anti-Unfair Competition Law.
"Sufficient to mislead a person into believing that a commodity is one of another person or has a particular connection with another person" as specified in Article 6 of the Anti-Unfair Competition Law includes the mistaken belief that there is commercial association, licensed use, title sponsorship, endorsement, or any other particular connection with another person.
The use of a name of commodities, packaging, decoration, or any other label identical to or visually indistinguishable from one on the same commodities shall be treated as being sufficient to cause confusion with the label of another person with certain influence.
Article 13 Where a business commits any of the following acts of confusion, sufficient to mislead a person into believing that a commodity is one of another person or has a particular connection with another person, the people's court may make a determination in accordance with Article 6(4) of the Anti-Unfair Competition Law:
(1) Using a label "with certain influence" other than one specified in Article 6(1), (2), and (3) of the Anti-Unfair Competition Law without authorization.
(2) Using the registered trademark or unregistered well-known trademark of another person as the trade name in the enterprise name to mislead the public.
Article 14 Where a business sells commodities with a label in violation of Article 6 of the Anti-Unfair Competition Law, misleading a person into believing that a commodity is one of another person or has a particular connection with another person, and a party contends that there is a circumstance specified in Article 6 of the Anti-Unfair Competition Law, the people's court shall uphold the contention.
If the business sells the infringing commodities specified in the preceding paragraph without knowledge, proves its lawful acquisition of the commodities, states the supplier, and contends that it has no liability for compensation, the people's court shall uphold the contention.
Article 15 Where warehousing, transportation, mailing, printing, concealment, business premises, or other facilitating conditions are intentionally provided for another to commit a confusing act, and a party claims a determination in accordance with paragraph 1 of Article 1169 of the Civil Code, the people's court shall uphold the claim.
Article 16 Where in the course of commercial publicity, a business provides untrue information on commodities to defraud or mislead the relevant members of the public, the people's court shall determine its act as false commercial publicity under paragraph 1 of Article 8 of the Anti-Unfair Competition Law.
Article 17 Where a business commits any of the following acts, defrauding or misleading the relevant members of the public, the people's court may determine the act as "misleading commercial publicity" in paragraph 1 of Article 8 of the Anti-Unfair Competition Law:
(1) Conducting one-sided publicity or comparison of commodities.
(2) Using a scientifically inconclusive view or phenomenon, among others, as a conclusive fact to publicize commodities.
(3) Using ambiguous language for commercial publicity.
(4) Otherwise misleading acts of commercial publicity.
The people's court shall determine misleading acts of commercial publicity based on factors such as everyday experience, the general care of the relevant members of the public, the facts misunderstood, and the actual circumstances of the thing publicized.
Article 18 Where a party contends that a business violates paragraph 1 of Article 8 of the Anti-Unfair Competition Law and claims compensation for its loss, it shall present evidence that it sustains loss resulting from an act of false or misleading commercial publicity.
Article 19 Where a party contends that a business commits the act of commercial defamation under Article 11 of the Anti-Unfair Competition Law, it shall present evidence that it is the specific victim of the act of commercial defamation.
Article 20 Where a business spreads false or misleading information fabricated by another person to damage the goodwill and product reputation of a competitor, the people's court shall make a determination in accordance with Article 11 of the Anti-Unfair Competition Law.
Article 21 The people's court shall determine a direct URL redirection without the consent of another business and users as "forcing a URL redirection" specified in paragraph 2(1) of Article 12 of the Anti-Unfair Competition Law.
If a link is only inserted, and users are allowed to trigger a URL redirection, the people's court shall take into account the specific method of inserting the link, whether there is a reasonable reason, the impact on the interests of users and other businesses, and other factors in determining whether the act is a violation of paragraph 2(1) of Article 12 of the Anti-Unfair Competition Law.
Article 22 Where a business maliciously interferes with or undermines the network products or services legally provided by another business by misleading, deceiving, or coercing users into effectuating modifications, close, uninstallation, or other means, without explicit prompts beforehand and the consent of users, the people's court shall make a determination in accordance with paragraph 2(2) of Article 12 of the Anti-Unfair Competition Law.
Article 23 For an act of unfair competition specified in Articles 2, 8, 11, and 12 of the Anti-Unfair Competition Law, if the actual loss caused to the right holder by infringement and the benefits obtained by the infringer from infringement are difficult to determine, and a party contends that the amount of compensation should be determined in accordance with paragraph 4 of Article 17 of the Anti-Unfair Competition Law, the people's court shall uphold the contention.
Article 24 Where a infringer commits a infringement against a party at a time within a geographical scope, the people's court has determined that there is an infringement of a copyright, patent, or exclusive right to use a registered trademark, among others, and ordered civil liability to be assumed, and the party requests again that the same infringer should assume civil liability on the grounds that the act constitutes unfair competition, the people's court shall not uphold the request in accordance with the law.
Article 25 Where in accordance with Article 6 of the Anti-Unfair Competition Law, a party contends that its claim for an order that the defendant stop using or modify its enterprise name should be upheld in accordance with the law, the people's court shall order the stoppage of the use of the enterprise name.
Article 26 A civil action filed for an act of unfair competition shall be under the jurisdiction of the people's court in the place of infringement, or the place of domicile of defendant.
If a party contends that the place of infringement is only the place of delivery which an online buyer may choose at will, the people's court shall not uphold the contention.
Article 27 When an alleged act of unfair competition occurs outside the territory of the People's Republic of China, but the infringement result occurs within such territory, if a party contends that the people's court in the place of infringement result should exercise jurisdiction, the people's court shall uphold the contention.
Article 28 For a civil case of unfair competition accepted by the people's court after the Decision to Amend to the Anti-Unfair Competition Law came into force, the Anti-Unfair Competition Law before the amendment, if the act involved occurred before the Decision came into force, or as amended, if the act involved occurred before the Decision came into force and continues thereafter, shall apply.
Article 29 This Interpretation shall come into force on March 20, 2022, upon which the Interpretation of the Supreme People's Court on Some Issues Concerning the Application of Law in the Trial of Civil Cases Involving Unfair Competition (No. 2 [2007], SPC) shall be repealed.
A case shall be governed by this Interpretation if no judgment has been entered and taken effect on the case since this Interpretation comes into force, or shall not be governed by this Interpretation if a judgment has been entered and taken effect on the case before this Interpretation comes into force.
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