On March 17, the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application the Anti-Unfair Competition Law of the P.R.C." (“The Interpretation”) was released and has come into force on March 20, 2022. The Interpretation has a total of 29 articles, focusing on detailed provisions on Article 2 of the Anti-Unfair Competition Law, counterfeiting and confusion, false propaganda, and online unfair competition.

 

Article 3  A code of conduct that is generally followed and recognized in a specific commercial field can be identified by the people's court as "business ethics" as stipulated in Article 2 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 business operator's subjective state, the transaction counterparty's willingness to choose, the impact on consumers' rights and interests, market competition order, and the impact of social and public interests, to judge whether the business operator violates business ethics in accordance with the law.

 

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

 

Article 11  The business operator uses the company name (including abbreviation, font size, etc.), social organization name (including abbreviation, etc.), name (including pseudonym, stage name, translated name, etc.), the main part of the domain name, website name, webpage and other similar logos that have a certain influence on others without authorization, leading people to mistakenly believe that it is the goods of others or has a specific connection with others. The people's court shall uphold the claims of the parties that fall under the circumstances specified in Items 2 and 3 of Article 6 of the Anti-Unfair Competition Law.

 

Article 12  When a people's court finds that it is identical or similar to a mark with "certain influence" stipulated in Article 6 of the Anti-Unfair Competition Law, it may refer to the principles and methods for judging the same or similar trademarks.

 

Article 6 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 product names, packaging, decorations and other marks on the same commodity shall be deemed to be sufficient to cause confusion with the marks that have a certain influence on others.

 

Article 13  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 6, Item 4 of the Anti-Unfair Competition Law:

 

(1) Unauthorized use of signs with “certain influence” other than those stipulated in Items 1, 2 and 3 of Article 6 of the Anti-Unfair Competition Law;

 

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

 

Article 14  Where a business operator sells commodities with signs that violate the provisions of Article 6 of the Anti-Unfair Competition Law, causing people to mistakenly believe that they are other people's goods or have a specific connection with others, and the parties claim that it constitutes a situation stipulated in Article 6 of the Anti-Unfair Competition Law, the people's court shall uphold it.

 

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

 

Article 16  Where a business operator provides untrue commodity-related information to deceive or mislead the relevant public in the process of commercial promotion, the people's court shall determine it as false commercial promotion as specified in paragraph 1 of Article 8 of the Anti-Unfair Competition Law.

 

Article 17  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 1 of Article 8 of the Anti-Unfair Competition Law:

 

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

 

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

 

(3) Using ambiguous language for commercial promotion;

 

(4) 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 18  If the party claims that the operator violated the provisions of paragraph 1 of Article 8 of the Anti-Unfair Competition Law and requests compensation for losses, it shall provide evidence to prove that the business operator suffered losses due to false or misleading commercial propaganda.

 

Article 19  If the party claims that the business operator has carried out the commercial slandering behavior stipulated in Article 11 of the Anti-Unfair Competition Law, it shall provide evidence to prove that it is the specific damage object of the commercial slandering behavior.

 

Article 21  The people's court shall determine the direct target jump without the consent of other business operators and users as "compulsory target jump" as stipulated in Article 12, Paragraph 2, Item 1 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 business operators, and determine whether the conduct violates the provisions of Article 12, Paragraph 2, Item 1 of the Anti-Unfair Competition Law.

 

Article 22  Where a business operator maliciously interferes with or destroys network products or services legally provided by other business operators by misleading, deceiving, or forcing users to modify, close, or uninstall, without a clear notice in advance and with the consent of users, the people's court shall determine it in accordance with Article 12, Paragraph 2, Item 2 of the Anti-Unfair Competition Law.