The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Involving the Protection of Well known Trademarks was adopted at the 1467th meeting of the Judicial Committee of the Supreme People's Court on April 22, 2009. It is now published and shall come into effect on May 1, 2009.

April 23, 2009

In order to protect well-known trademarks in accordance with the law in the trial of civil disputes such as trademark infringement, this interpretation is formulated based on relevant laws and regulations such as the Trademark Law of the People's Republic of China, the Anti Unfair Competition Law of the People's Republic of China, and the Civil Procedure Law of the People's Republic of China, combined with the actual trial situation.

Article 1: The well-known trademark referred to in this interpretation refers to a trademark that is widely known to the relevant public within China.

Article 2: In the following civil dispute cases, if the parties use the well-known trademark as a factual basis and the people's court deems it necessary based on the specific circumstances of the case, it shall make a determination on whether the trademark in question is well-known:

（1） Lawsuits for trademark infringement filed on the grounds of violating Article 13 of the Trademark Law;

（2） Lawsuits for trademark infringement or unfair competition filed on the grounds that the enterprise name is identical or similar to its well-known trademark;

（3） Lawsuits that comply with the provisions of Article 6 of this Interpretation regarding defenses or counterclaims.

Article 3: In the following civil dispute cases, the people's court shall not examine whether the trademark in question is well-known:

（1） The establishment of the accused infringement of trademark rights or unfair competition behavior is not based on the fact that the trademark is well-known;

（2） The accused of trademark infringement or unfair competition is not established due to the lack of other legal requirements.

The plaintiff's claim that the domain name registered and used by the defendant is the same or similar to the registered trademark, and that related goods are traded through the domain name in e-commerce, which is sufficient to cause the relevant public to mistakenly believe that the infringement is caused, shall be handled in accordance with the provisions of item (1) of the preceding paragraph.

Article 4: When a people's court determines whether a trademark is well-known, it shall be based on the fact that it is well-known, taking into account all the factors stipulated in Article 14 of the Trademark Law. However, this does not apply to situations where all the factors stipulated in this article are sufficient to determine whether the trademark is well-known based on the specific circumstances of the case.

Article 5: If a party claims that a trademark is well-known, they shall provide the following evidence based on the specific circumstances of the case to prove that the trademark was already well-known at the time of the alleged infringement of trademark rights or unfair competition:

（1） The market share, sales area, profits and taxes of the goods using the trademark;

（2） The duration of use of the trademark;

（3） The method, duration, degree, capital investment, and geographical scope of the promotion or advertising activities of the trademark;

（4） The trademark has a record of being protected as a well-known trademark;

（5） The market reputation enjoyed by the trademark;

（6） Other facts proving that the trademark is already well-known.

The time, scope, and method of trademark use mentioned in the preceding paragraph, including the situation of continuous use before its approval and registration.

The people's court shall objectively and comprehensively examine evidence such as the duration of trademark use, industry ranking, market research reports, market value assessment reports, and whether the trademark has been recognized as a well-known trademark, in conjunction with other evidence of trademark recognition.

Article 6: If the plaintiff files a civil lawsuit on the grounds that the use of the sued trademark infringes upon its exclusive right to use a registered trademark, and the defendant raises a defense or counterclaim on the grounds that the plaintiff's registered trademark replicates, imitates, or translates its previously unregistered well-known trademark, it shall bear the burden of proof for the fact that its previously unregistered trademark is well-known.

Article 7: If a trademark that has been recognized as well-known by a people's court or the State Administration for Industry and Commerce before the alleged infringement of trademark rights or unfair competition occurs, and the defendant does not object to the fact that the trademark is well-known, the people's court shall recognize it. If the defendant raises an objection, the plaintiff shall still bear the burden of proof for the fact that the trademark is well-known.

Unless otherwise provided in this interpretation, the people's court shall not apply the self admission rule of civil litigation evidence to the fact that a trademark is well-known.

Article 8: If the plaintiff has provided basic evidence that a trademark that is widely known to the public within China is well-known, or if the defendant does not object, the people's court shall recognize the fact that the trademark is well-known.

Article 9: If it is sufficient to cause the relevant public to misidentify the source of the goods using the well-known trademark and the sued trademark, or to make the relevant public believe that there is a specific connection between the operators using the well-known trademark and the sued trademark, such as license use or affiliated enterprise relationship, it belongs to the "easy to cause confusion" stipulated in Article 13 (1) of the Trademark Law.

If it is sufficient to make the relevant public believe that the sued trademark has a considerable degree of connection with the well-known trademark, and weaken the distinctiveness of the well-known trademark, belittle the market reputation of the well-known trademark, or improperly use the market reputation of the well-known trademark, it belongs to the "misleading the public, causing possible harm to the interests of the registrant of the well-known trademark" stipulated in Article 13 (2) of the Trademark Law.

Article 10: If the plaintiff requests to prohibit the defendant from using a trademark or enterprise name that is identical or similar to the plaintiff's well-known registered trademark on dissimilar goods, the people's court shall make a judgment based on the specific circumstances of the case, taking into account the following factors:

（1） The degree of distinctiveness of the well-known trademark;

（2） The level of awareness of the well-known trademark among the relevant public of the goods using the sued trademark or enterprise name;

（3） The degree of association between goods using well-known trademarks and goods using the sued trademark or enterprise name;

（4） Other related factors.

Article 11: If the defendant's use of a registered trademark violates the provisions of Article 13 of the Trademark Law by copying, imitating, or translating the plaintiff's well-known trademark, which constitutes infringement of trademark rights, the people's court shall, at the request of the plaintiff, make a judgment prohibiting the defendant from using the trademark in accordance with the law. However, if the defendant's registered trademark falls under any of the following circumstances, the people's court shall not support the plaintiff's request:

（1） Has exceeded the deadline for requesting revocation as stipulated in Article 41 (2) of the Trademark Law;

（2） When the defendant filed the registration application, the plaintiff's trademark was not well-known.

Article 12: If an unregistered well-known trademark requested for protection by a party falls under the circumstances where it cannot be used or registered as a trademark as stipulated in Articles 10, 11, and 12 of the Trademark Law, the people's court shall not support it.

Article 13: In civil disputes involving the protection of well-known trademarks, the recognition of trademark fame by the people's court shall only serve as a fact of the case and a reason for the judgment, and shall not be included in the main text of the judgment; If the dispute is resolved through mediation, the fact that the trademark is well-known shall not be recognized in the mediation agreement.

Article 14: In case of any inconsistency between the previous judicial interpretations of this court and this interpretation, this interpretation shall prevail.