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Anti-Unfair Competition Law - Explanation of Several Issues

Legal Interpretation [2022] No. 9

Supreme people's court

About application

"Anti-Unfair Competition Law of the People's Republic of China"

Explanation of some issues

(2022年1月29日最高人民法院审判委员会第1862次会议通过,自2022年3月20日起施行)

In order to correctly try civil cases arising from acts of unfair competition, this document is formulated in accordance with the Civil Code of the People's Republic of China, the Anti-Unfair Competition Law of the People's Republic of China, the Civil Procedure Law of the People's Republic of China and other relevant laws and regulations, and in light of trial practice. explain.

Article XNUMX Where a business operator disrupts the market competition order, damages the legitimate rights and interests of other business operators or consumers, and is in violation of Chapter II of the Anti-Unfair Competition Law and the provisions of the Patent Law, Trademark Law, Copyright Law, etc., the people's court may Article XNUMX of the Anti-Unfair Competition Law shall be applied.

Article XNUMX The market entities that may compete for trading opportunities and damage competitive advantages with the business operators in their production and business activities may be identified by the people's courts as "other business operators" as stipulated in Article XNUMX of the Anti-Unfair Competition Law.

Article XNUMX A code of conduct that is generally followed and recognized in a specific commercial field may be recognized by the people's court as "business ethics" as stipulated in Article XNUMX of the Anti-Unfair Competition Law.

The people's court shall, in light of the specific circumstances of the case, comprehensively consider factors such as industry rules or business practices, the operator's subjective state, the transaction counterparty's willingness to choose, the impact on consumers' rights and interests, market competition order, and social and public interests, and judge the operator in accordance with the law. Whether it violates business ethics.

When determining whether a business operator has violated business ethics, the people's court may refer to the practice norms, technical norms, self-discipline conventions, etc. formulated by the competent industry authorities, industry associations or self-discipline organizations.

Article XNUMX The people's court may identify a mark with a certain market reputation and distinctive features that distinguishes the source of the commodity as a mark with "certain influence" as stipulated in Article XNUMX of the Anti-Unfair Competition Law.

The people's court determines whether the logo stipulated in Article XNUMX of the Anti-Unfair Competition Law has a certain market reputation, and should comprehensively consider the degree of knowledge of the relevant public in China, the time, area, amount and target of the sale of goods, the duration, extent and extent of publicity. Geographical scope, identifying protected situations, etc.

Article XNUMX If the logo stipulated in Article XNUMX 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 features that distinguish the source of the commodity:

(XNUMX) The common name, graphics and model of the commodity;

(XNUMX) Marks that only directly indicate the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the commodities;

(XNUMX) Shapes that arise solely from the nature of the commodity itself, the shape of the commodity that is necessary to obtain technical effects, and the shape that gives the commodity substantial value;

(XNUMX) Other signs lacking distinctive features.

Where the logos specified in Items XNUMX, XNUMX, and XNUMX of the preceding paragraph have acquired distinctive features through use and gained a certain market reputation, and the party concerned requests protection in accordance with Article XNUMX of the Anti-Unfair Competition Law, the people's court shall support it .

Article XNUMX The people's court shall not support the legitimate use of the following signs due to objective description and explanation of commodities, and the parties claim that it falls under the circumstances stipulated in Article XNUMX of the Anti-Unfair Competition Law:

(XNUMX) Contains the common name, graphics and model of the product;

(XNUMX) Directly indicate the quality, main raw materials, functions, uses, weight, quantity and other characteristics of the commodities;

(XNUMX) Contains place names.

Article XNUMX The sign or its distinctive identification part stipulated in Article XNUMX of the Anti-Unfair Competition Law is a sign that shall not be used as a trademark as stipulated in the first paragraph of Article XNUMX of the Trademark Law. protection, the people's court shall not support it.

Article XNUMX The overall business image with a unique style consisting of the decoration of the business premises, the style of business appliances, and the clothing of business personnel, etc., may be determined by the people's court as "the first item of Article XNUMX of the Anti-Unfair Competition Law". decoration".

Article XNUMX The enterprise name legally registered by the market entity registration management department and the overseas enterprise name used for commercial use within the territory of China may be recognized by the people's court as the "enterprise name" stipulated in Item XNUMX of Article XNUMX of the Anti-Unfair Competition Law.

The names (including abbreviations, trade names, etc.) of individual industrial and commercial households, farmers' professional cooperatives (associations), and other market entities specified by laws and administrative regulations that have certain influence, the people's court may, in accordance with Article XNUMX, Paragraph XNUMX, of the Anti-Unfair Competition Law. be recognized.

Article XNUMX The people's court may determine that a sign with certain influence is used within the territory of China to be used on commodities, commodity packaging or containers, and commodity transaction documents, or in advertisements, exhibitions, and other commercial activities to identify the source of commodities. "Use" as stipulated in Article XNUMX of the Anti-Unfair Competition Law.

Article XNUMX Operators use without authorization the names of enterprises (including abbreviations, brand names, etc.), social organization names (including abbreviations, etc.), names (including pseudonyms, stage names, translated names, etc.), the main part of domain names, and website names that have certain influence on others. , web pages and other similar signs, which lead people to mistakenly believe that they are goods of others or have a specific connection with others, and the parties claim that they fall under the circumstances specified in Items XNUMX and XNUMX of Article XNUMX of the Anti-Unfair Competition Law, the people's court shall support it.

Article XNUMX The people's court may refer to the principles and methods for judging the identity or similarity of trademarks when determining that it is identical or similar to the mark "with certain influence" stipulated in Article XNUMX of the Anti-Unfair Competition Law.

Article XNUMX of the Anti-Unfair Competition Law stipulates that "leading people to mistakenly believe that it is someone else's product or has a specific connection with another person", including the mistaken belief that there is a specific connection with another person such as commercial association, licensed use, commercial title, advertising endorsement, etc.

The use of identical or visually indistinguishable names, packaging, decorations and other signs on the same product shall be deemed to be sufficient to cause confusion with the signs that have certain influence on others.

Article XNUMX Where a business operator conducts one of the following confusing acts, which is enough to lead 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 XNUMX, Item XNUMX of the Anti-Unfair Competition Law:

(XNUMX) Unauthorized use of signs with “certain influence” other than those stipulated in Items XNUMX, XNUMX and XNUMX of Article XNUMX of the Anti-Unfair Competition Law;

(XNUMX) Misleading the public by using others' registered trademarks or unregistered well-known trademarks as the font size in the enterprise name.

Article XNUMX When an operator sells commodities with signs that violate the provisions of Article XNUMX of the Anti-Unfair Competition Law, which leads people to mistakenly believe that they are other people's products or have a specific connection with others, the parties claim that they constitute the provisions of Article XNUMX of the Anti-Unfair Competition Law. The people's court shall support it.

If the seller does not know that it is an infringing commodity specified in the preceding paragraph, and it can be proved that the commodity is legally obtained by himself and the supplier is specified, and the operator claims not to be liable for compensation, the people's court shall support it.

Article XNUMX If the parties deliberately provide convenient conditions such as storage, transportation, mailing, printing, concealment, and business premises for others to carry out the act of confusion, and the party requests to be recognized in accordance with the first paragraph of Article XNUMX of the Civil Code, the people The court should uphold it.

Article XNUMX If an operator provides untrue commodity-related information in the process of commercial promotion, deceiving or misleading the relevant public, the people's court shall determine it as false commercial promotion as specified in Paragraph XNUMX of Article XNUMX of the Anti-Unfair Competition Law.

Article XNUMX Where a business operator has one of the following acts to deceive or mislead the relevant public, the people's court may identify it as "misleading commercial publicity" as prescribed in Paragraph XNUMX of Article XNUMX of the Anti-Unfair Competition Law:

(XNUMX) One-sided publicity or comparison of commodities;

(XNUMX) Using scientifically unconfirmed viewpoints, phenomena, etc. as conclusive facts for product promotion;

(XNUMX) Using ambiguous language for commercial promotion;

(XNUMX) Other commercial publicity behaviors that are sufficiently 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 target being publicized.

Article XNUMX If a party claims that the operator violated the provisions of paragraph XNUMX of Article XNUMX of the Anti-Unfair Competition Law and requests compensation for losses, it shall provide evidence to prove that it suffered losses due to false or misleading commercial propaganda.

Article XNUMX If the parties claim that the operator has carried out the commercial slandering acts stipulated in Article XNUMX of the Anti-Unfair Competition Law, they shall provide evidence to prove that they are the specific damage objects of the commercial slandering acts.

Article XNUMX Where a business operator spreads false information or misleading information fabricated by others and damages the business reputation and commodity reputation of competitors, the people's court shall determine it in accordance with Article XNUMX of the Anti-Unfair Competition Law.

Article XNUMX A target jump that occurs directly without the consent of other operators and users shall be determined by the people's court as "compulsory target jump" as stipulated in item XNUMX, paragraph XNUMX, Article XNUMX 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 the specific method of inserting the link, whether there is a reasonable reason, and the impact on the interests of users and other operators, and determine whether the act violates anti-unfair competition. Article XNUMX, Paragraph XNUMX, Item XNUMX of the Law.

Article XNUMX The operator maliciously interferes or destroys the network products or services legally provided by other operators by misleading, deceiving, forcing users to modify, close, uninstall, etc. without a clear notice in advance and with the consent of the user. Article XNUMX, paragraph XNUMX, item XNUMX of the Anti-Unfair Competition Law shall be recognized.

Article XNUMX For acts of unfair competition stipulated in Articles XNUMX, XNUMX, XNUMX and XNUMX of the Anti-Unfair Competition Law, the actual losses suffered by the right holder due to the infringement, the The benefits obtained are difficult to determine, and the people's court shall support the claim of the parties to determine the amount of compensation in accordance with paragraph XNUMX of Article XNUMX of the Anti-Unfair Competition Law.

Article XNUMX For an 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 copyright, patent right or exclusive right to use a registered trademark has been infringed and ordered to bear civil liability. If the same infringer is requested to bear civil liability on the grounds of unfair competition, the people's court shall not support it.

Article XNUMX In accordance with the provisions of Article XNUMX 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 to stop using the enterprise name.

Article XNUMX A civil lawsuit initiated for an act of unfair competition shall be under the jurisdiction of the people's court in the place where the infringing act is committed or where the defendant is domiciled.

The people's court shall not support the party's claim that only the place of receipt that the online purchaser can choose at will as the place of infringement.

Article XNUMX If the accused act of unfair competition occurred outside the territory of the People's Republic of China, but the result of the infringement occurred within the territory of the People's Republic of China, if the parties claim that the infringement should be under the jurisdiction of the people's court where the result of the infringement occurred, the people's court shall support it.

Article XNUMX If a civil case of unfair competition accepted by a people's court after the implementation of the decision to amend the Anti-Unfair Competition Law involves acts that occurred before the decision was implemented, the Anti-Unfair Competition Law before the amendment shall apply; , Continuing to act after the decision is implemented, the revised Anti-Unfair Competition Law shall apply.

第二十九条 本解释自2022年3月20日起施行。《最高人民法院关于审理不正当竞争民事案件应用法律若干问题的解释》(法释〔2007〕2号)同时废止。

For cases that have not been finalized after the implementation of this Interpretation, this Interpretation shall apply; for cases that have been finalized before the implementation of this Interpretation, this Interpretation shall not be applied for retrial.

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The main purpose of reprinting this article is to spread legal knowledge, so that business operators can better compete fairly and better observe and maintain business ethics.

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