—Complementation between Anti-unfair Competition Law and Trademark Law
By Luo Yanjie
Anti-unfair competition law, trademark law, Walmart, Cartier, Yihaodian, yihaodian.com, Yihaodian being charged, Cartier sues Yihaodian, malicious competition in market, unfair-competition infringement, trademark infringement, trademark lawyer, trademark infringement definition, establishment of unfair-competition, legal protection of trademark in unfair competition law, false propaganda, revision of anti-unfair competition law, completion of anti-unfair competition law,
According to a recent news report (note: the link is in Chinese), Cartier S.A (the “Cartier”) filed lawsuits against Yihaodian, an online supermarket in mainland China of Walmart, claiming a trademark infringement and unfair competition. The brand of Cartier is among one of the best known trademarks around the world and sets the trend of the jewelers and hand watches. Yihaodian was found to feature “Cartier” on products manufactured by other companies, as was noted by the luxury giant themselves. Due to this, Cartier sued Yihaodian, claiming infringement cease compensation. By the latest news, Shanghai Pudong People’s Court has accepted the case and will hold the hearing soon.
Due to the fact that more details of the case are unavailable, it is unfair to make comments or conclusion on the dispute at this premature point, however I believe a just sentence will be made by the court. However, we still find the case is distinct for it has been filed on the basis of both trademark infringement and unfair-competition, and that has highlighted a connection between the two laws. Today, we would like to introduce the similarities and differences of the Trademark Law and the Anti-unfair Competition Law on the trademark protection.
I. The relation between the Trademark Law and the Anti-unfair Competition Law
In China, the Trademark Law is mainly used to regulate the system concerning the “marks”, including the application, review, use and remedy, whilst the Anti-unfair Competition Law aims to protect the justice in the market from a more comprehensive aspect. Despite the overlap of the two legislations (the trademark could also be applied to the market operation which is one of the competitions), I prefer to make no sequences on the application of them since neither of them is subordinating or special to the other. In China, either law has its own regulating objects, methods, scope and key protected areas.
Therefore, although the Anti-unfair Competition Law covers the trademark protection, such a protection is supplementing and mainly to those trademark uses in the market. This makes the emphasis of the Anti-unfair Competition Law different from that of the Trademark Law, and both laws play a paralleling role in the trademark protection in China.
II. The complementation of the Anti-unfair Competition Law to the Trademark Law
As conclude by Article 52 of the Trademark Law, the infringement against trademarks includes:
“(1) to use a trademark that is identical with or similar to a registered trademark in respect of the identical or similar goods without the authorization from the trademark registrant;
(2) to sell goods that he knows bear a counterfeited registered trademark;
(3) to counterfeit, or to make, without authorization, representations of a registered trademark of another person, or to sell such representations of a registered trademark as were counterfeited, or made without authorization;
(4) to replace, without the consent of the trademark registrant, its or his registered trademark and market again the goods bearing the replaced trademark; or
(5) to cause, in other respects, prejudice to the exclusive right of another person to use a registered trademark. ”
Following the Interpretations on Several Issues of Law Application in Hearing the Trademark Civil Disputes by the Supreme People’s Court, the losses “in other respects” shall refer to the problem involved with the company name, well-known trademark and domain name.
Considering the aforesaid cases, Yihaodian seems to have made no infringement as regulated in laws shall the claim of Cartier were true, for it’s probable that the sign or label of Cartier was only adopted in Yihaodian’s propaganda and not printed on the selling commodities. Although such conducts may also be regulated as damages to others trademark benefits, and that highlights the importance of the Anti-unfair Competition Law to the trademark protection. As provided in that law,
“An operator may not use advertisements or other means to give false, misleading publicity as to the quality, composition, performance, use, manufacturer, useful life, origin, etc. , of the goods.”
Supposing Yihaodian has misled the consumers with the propaganda of “Cartier”, it does suspect of the infringement of unfair competition.
III. The completion of Anti-unfair Competition Law is necessary to the trademark protection
There could still be some defects in the legislation though the protection of the trademark has been enlarged by the Anti-unfair Competition Law, such as “the confusion by others” this however only refers to those noted trademarks. The inadequate legislation may come from the “listing” legislation type, by which any situation not listed in the law shall not be governed. In spite of the principled provision in the Anti-unfair Competition Law that
“An operator shall, in transactions in the market, follow the principle of voluntariness, equality, fairness, honesty and credibility, and observe generally recognized business ethics.”
Such regulations are rarely used in the practices and unlikely to be the basis to judge the unfair competition conducts. Additionally it is possible to find a specific regulation in the law that
“Operator” in this Law refers to a legal person or other economic organization or individual engaging in the trading of goods or profit-making services.”
In the operations, the competition amongst the brands may vary and there may be a development of new industries. Therefore, it is impossible for the Anti-unfair Competition Law to list all the unfair competitions. For this reason, it is suggested to add a conclusive article in defining the unfair competition conducts, like to add the following provision in Article 2
“Despite no specific regulation in this law, the violation against the commercial ethics as accepted shall be the unfair competition in the law.”
This legislation mode could not only protect the trademark against the malicious damage to largest greatest extent, but also to suppress the immoral competition in the market.
Other recommended posts on our website:
1. The Actual Term of Trademark Registration in China
2. How to Apply for the Trademark Record in China Custom
3. How to improve the success rate of trademark registration in China?
4. Matters for Attention in Trademark Refusal Review in China
5. Introduction of China’s Legal System of Trademark Renewal
6. Introduction on the Regulations concerning the Capital Contribution in IPR or Domain Name in China
7. The Copyright Registration in China Could Be FREE?
8. China Copyright Protection Term Longer than EU’s?
9. Matters for Attention in the Patent Preliminary Injunction Application in China(I)
Lawyer Contacts
You Yunting
86-21-52134918
youyunting@debund.com, yytbest@gmail.com
For further information, please contact the lawyer as listed above or through the methods in our CONTACTS.
Bridge IP Law Commentary’s posts, including the comments and opinions contained herein, shall not be construed as the legal advice on any issues related. The contents are for general information purposes only. Anyone willing to quote or refer the posts to any other publications or for any other purposes, no matter there’s benefits gained or not, shall first get the written consent from Bridge IP Law Commentary and used under the discretion of us. As to the application of the reprint permission for any of our posts, please email us to the above addresses. The publication of this post or transmission of it through mail, internet or other methods does not constitute an attorney-client relationship. The views set forth here are of due diligence, neutrality and impartiality, representing our own opinions only and are our original works.
Short Link: