The LEHMAN, Lee & Xu China Trademarks Newsletter keeps you up to date on recent developments in China Trademark law and practice
China Supreme Court Weighs in on Protection of Well Known Trademarks
On January 10, 2017, the Supreme People's Court of China (the SPC) issued a judicial interpretation on China trademarks which addressed issues related to trials of administrative cases. The interpretation clarifies some issues regarding protection of Well-Known Trademarks.
The interpretation lists several considerations which should be examined when a court is making a determination as to whether there is "likelihood of confusion" or "damage” to an existing well-known mark.
For an unregistered well-known trademarks, the presiding court shall consider:
(1) the extent of similarity of the two trademarks;
(2) the extent of similarity of the goods of concern;
(3) the distinctiveness and reputation of the alleged well-known mark;
(4) the extent of the perception of the relevant public;
(5) any other relevant factors. The intent of the trademark applicant and evidence of actual confusion may also be taken into account in determining likelihood of confusion.
For a registered well-known trademark, in determining whether the trademark at issue would cause damage to the interests of the registered well-known trademark holder, the presiding court shall consider:
(1) the distinctiveness and reputation of the trademark alleged to be infringed upon;
(2) whether the two trademarks are sufficiently similar;
(3) the goods designated for use;
(4) the overlapping and perceptions of the relevant public;
(5) other's legitimate use of trademarks that are similar to the alleged well-known mark.
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