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In order to correctly hear the civil cases of unfair competition, lawfully protect the legitimate rights and interests of business operators, and maintain the market competition order, after considering the experiences and actual situation of the trial practice, this Interpretation is formulated according to the General Principles of the Civil 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. Article 1. Those commodities that have certain market popularity within the territory of China and are known by the relevant public shall be regarded as "well-known commodities" prescribed in Item (2) of Article 5 of the Anti-unfair Competition Law. The people's court shall, when affirming well-known commodities, take into consideration the time, region, volume and targets for selling such commodities, the duration, degree and scope for any publicity of such commodities, as well as the protection situation as well-known commodities, and make comprehensive judgments. The plaintiff shall assume the burden of proof for the market popularity of its commodities. Where an identical or similar name, package or decoration with that specific to a well-known commodity is used within a different region, if the later user can prove its good faith in using it, it will not constitute the unfair competition prescribed in Item (2) of Article 5 of the Anti-unfair Competition Law. Where the later business activities are conducted within the same region and it is sufficient to cause confusion, and if the first user pleads the court to order the later to add other marks to distinguish the sources of its commodities, the people's court shall support it. Article 2. The name, package and decoration of commodities that have notable characteristics for distinguishing the source of commodities shall be regarded as the "specific name, package and decoration" prescribed in Item (2) of Article 5 of the Anti-unfair Competition Law. If it is under any of the following circumstances, the people's court shall not affirm them the specific name, package and decoration of well-known commodities: (1) the name, graphics or model commonly used by the commodities; (2) the name of the commodities that only directly indicates the quality, main raw materials, functions, uses, weight, quantity or any other characteristic of the commodities; (3) the shape formed only due to the nature of the commodities, the shape of the commodities that should be formed in order to obtain technical effects, and the shape that produces substantive value to the commodities; or (4) the name, package or decoration of the commodities that has no notable characteristic. In case the notable characteristic occurs upon use under any circumstance prescribed in Item (1), (2) or (4) of the preceding paragraph, it can be confirmed a specific name, package and decoration. Where the specific name, package or decoration of a well-known commodity contains the name, graphics, or model common to the said commodity in question, or directly indicates the quality, main raw materials, functions, uses, weight, quantity or any other characteristic of the said commodity, or contains the place name, if any other party uses it for objectively describing commodities, it will not constitute an unfair competition. Article 3. In case the decoration of the business place, the pattern of business tools, or the clothes of business staff of a business operator, constitutes an overall business image with a unique style, it may be affirmed the "decoration" prescribed in Item (2) of Article 5 of the Anti-unfair Competition Law. Article 4. Where it is sufficient to cause the relevant public to misunderstand the source of a commodity, including the misunderstanding of a specific relationship such as licensed use or affiliation with the business operator of a well-known commodity, it shall be affirmed "causing the confusion with the well-known commodity of someone else, and making the purchasers mistake it to be a well-known commodity" prescribed in Item (2) of Article 5 of the Anti-unfair Competition Law. The use of a fundamentally similar name, package or decoration of a commodity or the one that is hardly different from the counterfeited one in terms of visual effect on the same commodity shall be regarded as "sufficiently to cause the confusion with the well-known commodity of someone else. The identity or similarity with the specific name, package or decoration of a well-known commodity may be affirmed by referring to the principles and methods for judging identical or similar trademarks. Article 5. In case the name, package or decoration of a commodity is a mark that cannot be used as a trademark prescribed in Paragraph 1 of Article 10 of the Trademark Law, and the relevant party requests the court to protect it according to Item (2) of Article 5 of the Anti-unfair Competition Law, the people's court shall support it. Article 6. An enterprise name registered by the enterprise registration authority, and a foreign enterprise name used within the territory of China for commercial use shall be affirmed an "enterprise name" prescribed in Item (3) of Article 5 of the Anti-unfair Competition Law. A business name in the enterprise name that has certain market popularity and is known by the relevant public may be affirmed "enterprise name" prescribed in Item (3) of Article 5 of the Anti-unfair Competition Law. The name of any natural person used in the business operation of commodities shall be affirmed a "name" prescribed in Item (3) of Article 5 of the Anti-unfair Competition Law. The pen name or stage name of any natural person that has certain market popularity and is known by the relevant public may be affirmed a "name" prescribed in Item (3) of Article 5 of the Anti-unfair Competition Law. Article 7. The commercial use within the territory of China, including the use of the specific name, package or decoration of a well-known commodity, or the enterprise title or name of a commodity, commodity packages or commodity exchange documents, or for advertisements, exhibitions or other commercial activities, shall be affirmed the "use" prescribed in Items (2) and (3) of Article 5 of the Anti-unfair Competition Law. Article 8. In case a business operator commits any of the following acts, which is sufficient to cause the misunderstanding of the relevant public, it may be affirmed a "false or misleading publicity" prescribed in Paragraph 1 of Article 9 of the Anti-unfair Competition Law: (1) conducting one-sided or contrastive publicity of goods; (2) conducting the publicity of goods by taking undecided scientific viewpoints or phenomena as the facts for final conclusions; or (3) conducting the publicity of goods by using ambiguous language or other misleading means. The publicity of goods by obviously exaggerating means, if it is insufficient to cause the misunderstanding of the relevant public, shall not be affirmed the "false or misleading publicity". The people's court shall affirm the false or misleading publicity according to daily life experiences, the general attention of the relevant public, the misunderstanding caused, as well as the actuality of the publicity objects. Article 9. In case the relevant information is unknown to and is difficult to be obtained by the relevant personnel in the relevant field, it shall be affirmed "unknown to the public" prescribed in Paragraph 3 of Article 10 of the Anti-unfair Competition Law. If it is under any of the following circumstances, it may be affirmed that the relevant information is not unknown to the public: (1) The information is the common sense or industrial practice for the personnel in the relevant technical or economic field; (2) The information only involves the simple combination of dimensions, structures, materials and parts of products, and can be directly obtained through the observation of products by the relevant public after the products enter into the market; (3) The information has been publicly disclosed on any publication or any other mass medium; (4) The information has been publicized through reports or exhibits; (5) The information can be obtained through other public channels; or (6) The information can be easily obtained without any price. Article 10. In case the relevant information has actual or potential commercial value, and can bring competitive advantage for the obligee, it shall be affirmed "capable of bringing about benefits to the obligee, and having practical applicability" prescribed in Paragraph 3 of Article 10 of the Anti-unfair Competition Law. Article 11. In case the obligee adopts proper protection measures suitable for the commercial value or other specific situation in order to prevent information leakage, it shall be confirmed "confidentiality measures" prescribed in Paragraph 3 of Article 10 of the Anti-unfair Competition Law. The people's court shall confirm whether the obligee has adopted confidentiality measures according to the features of the relevant information carrier, the confidentially willingness of the obligee, the identifiably degree of the confidentiality measures, the difficulty for others to obtain it by justifiable means and other factors. In case any of the following circumstances is sufficient to prevent the divulge of any classified information, it shall be affirmed that the obligee has adopted the confidentiality measures: (1) Limiting the access scope of the classified information, and only notifying the contents to relevant persons that should have the access to the information; (2) Locking the carrier of the classified information up or adopting any other preventive measure; (3) Indicating a confidentiality mark on the carrier of classified information; (4) Adopting passwords or codes on the classified information; (5) Concluding a confidentiality agreement; (6) Limiting visitors to the classified machinery, factory, workshop or any other place or putting forward any confidentiality request; or (7) Adopting any other proper measure for guaranteeing the confidentiality of information. Article 12. The business secrets obtained through independent development and research or reverse engineering shall not be affirmed an infringement upon business secrets prescribed in Items (1) and (2) of Article 10 of the Anti-unfair Competition Law. The "reverse engineering" mentioned in the preceding paragraph refers to the relevant technical information on the products as obtained through dismantling, mapping or analyzing the products gotten from technical means or other public channels. In case any party knows the business secrets of someone else by unjustifiable means and then claims its acquisition as lawful for the reason of reverse engineering, it shall not be supported. Article 13. The name list of customers among business secrets shall generally refer to the name, address, contact information, trading habits, trading intent, and trading contents of customers that consist of the specific client information different from relevant public information, and include the name roster of customers that collects a great deal of customers as well as the specific customers that have kept a long-term and stable trading relationship. Where a customer is relied on an employee and thus conducts market transactions with the employer of the said employee, after this employee leaves his post, if it could be proved that this customer voluntarily chooses to conduct market transactions with the said employee or his new employer, it shall be affirmed that no unfair means is adopted, unless it is otherwise stipulated between this employee and his former employer. Article 14. In case any party claims that someone else has infringed upon its business secret, it shall assume the burden of proof to prove that its business secret meets the statutory requirements, the information of the other party is similar or substantially similar to its business secret, and the other party has adopted unfair means. In particular, the evidence for proving that its business secret meets the statutory requirements shall include the carrier, specific contents, commercial value of this business secret as well as the specific confidentiality measures adopted for this business secret. Article 15. In the case of infringement upon any business secret, if the licensee of the license contract for sole use of the business secret lodges a lawsuit, the people's court shall accept it according to law. In case the licensee of the license contract for exclusive use lodges a lawsuit jointly with the obligee, or the licensee lodges a lawsuit alone under the circumstance that the obligee does not want to do so, the people's court shall accept it according to law. In case the licensee of the license contract for common use lodges a lawsuit jointly with the obligee, or the licensee lodges a lawsuit alone upon written authorization of the obligee, the people's court shall accept it according to law. Article 16. When the people's court adjudicates the civil liability of stopping the infringement on any business secret, the time for stopping the infringement shall generally be extended to the time when this business secret has become known to the general public. In case the time for stopping the infringement adjudicated according to the preceding paragraph is clearly improper, the infringer may be ordered to stop the use of this business secret within a certain term or scope under the circumstance that the competitive advantage of the obligee to this business secret is protected. Article 17. The determination of damages for the acts infringing on business secrets prescribed in Article 10 of the Anti-unfair Competition Law may be governed by the methods of determining damages for patent infringements by analogy, and the determination of damages for the unfair competition acts prescribed in Article 5, 9 or 14 of the Anti-unfair Competition Law may be governed by the methods of determining damages for infringing upon registered trademark rights by analogy. In case a tort causes any business secret to be known by the general public, the damages shall be determined according to the commercial value of this business secret. The commercial value of this business secret shall be determined according to the research and development costs, the proceeds from implementing this business secret, possible benefits, and the time for maintaining the competitive advantage to this business secret. Article 18. The civil cases of the first instance involving the unfair competition prescribed in Article 5, 9, 10 or 14 of the Anti-unfair Competition Law shall generally be subject to the jurisdiction of the intermediate people's court. Each higher people's court may, according to the actual situation of its jurisdiction and upon approval of the Supreme People's Court, determine some grass-roots people's courts to accept the civil cases of the first instance involving unfair competition, and those grass-roots people's courts that have been approved to hear civil cases involving intellectual property may continue the acceptance of cases involving unfair competition. Article 19. This Interpretation shall come into force as of February 1, 2007. |
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