Beijing: Draft Judicial Interpretations on Well-Known Trademarks in China

Owners of Chinese well-known trademarks are entitled to broader protection than ordinary trademarks registered in China. Above said, whether a trademark constitutes a well-known one in China becomes a significant issue to its owner.

The Supreme People’s Court of China promulgated draft Interpretations Concerning Certain Issues on Application of Laws in Recognizing and Protecting Well-Known Trademarks in Trails of Civil Disputes Related to Trademark Infringement (“Draft Interpretations”) on November 11, 2008.

The Draft Interpretations aim at addressing those common issues that have been revealed in judicial practice of recognizing Chinese well-known trademarks, and further strengthening protection over such trademarks in China.

Under the Draft Interpretations, only if the issue whether a disputed trademark constitutes Chinese well-known trademark is legally or factually significant in determining trademark infringement or unfair competition, such issue will be analyzed and determined by relevant people’s court.

It is noted that in order to be recognized as Chinese well-known trademark, the relevant trademark must be widely known within the territory of China. In other words, mere evidence of being well-known outside China (such as an international brand) is not sufficient to establish existence of a Chinese well-known trademark, even though overseas reputation or recognition may be taken into account in certain circumstances.

With respect to jurisdiction over cases involving judicial recognition of Chinese well-known trademarks, the views are split, and the Draft Interpretations provide for two possible options. One holds that intermediate people’s courts or above shall have such jurisdiction, while the other deem it necessary to further narrow it down to intermediate people’s court or above in major cities or others at the same level as approved by the Supreme People’s Court.