Judicial Activism in Action: New Interpretation on Trademark Disputes

By Ruixue Ran, East Associates, Beijing, and Wai-Bui Zee, Levi Strauss & Company, Beijing

Most recently, China's Supreme People's Court (SPC) released a new judicial interpretation, the Several Questions on the Application of Law in Trial of Trademark Civil Disputes Cases Interpretation (the Interpretation), which took effect on October 16 2002.¹ The judicial interpretation has been issued pursuant to the PRC Civil Law General Principles (CLGP), the Contract Law, the Trademark Law and the Civil Procedure Law. To fully understand this Interpretation, it should be read in conjunction not only with the general laws but also with specific legislation. In this case, a correlative reading with the second revision to the Trademark Law² and the third revision to the Implementing Regulations³ is the best approach.

The Interpretation can be divided into two parts: the substantive provisions and the procedural provisions. The substantive provisions include the scope of trademark infringement, factors used to assess the likelihood of confusion, determination of well-known trademark status and remedies. The procedural provisions include identifying who can file a suit in a trademark action and the proper jurisdiction. We will focus on the substantive provisions of the Interpretation and discuss more specifically well-known trademark protection in China.