Chinese Supreme People's Court to Draft Interpretation on Recognition of Well-Known Trademarks (for Comments)

The Chinese Supreme People's Court released the Interpretation on Several Questions Concerning the Recognition and Protection of Well-Known Trademarks in Hearing Civil Cases Involving Infringement of Trademark Rights (draft for comments) on November 11, 2008 (the "Draft"). A "draft for comments" is still in the legislative process and is not yet legally valid or enforceable. Although the government may or may not revise the draft, it does, however, illustrate the main structure and contents of the future promulgation. Generally there are two ways to recognize well-known trademarks in the PRC: (i) the administrative route, where well-known trademarks are first reviewed, then evaluated to ensure that there is an underlying dispute by local Administrations for Industry and Commerce and then recognized by the Trademark Bureau and/or Trademark Review Committee; or (ii) the judicial route, where well-known trademarks are recognized by the judgment of a court. Both routes require that the trademark first be infringed upon to merit consideration by the courts, provided that without an underlying dispute, neither the Trademark Bureau nor the Trademark Review Committee will consider recognition of a trademark. The Draft aims to provide a guideline on how to judicially determine a well-known trademark. Under the Draft, if the resolution of the underlying dispute does not require the recognition of a well-known trademark, the court will not make such determination. The Draft also provides that a court may invalidate a well-known trademark that was recognized through the administrative route, if sufficient evidence supports such invalidation.


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