April 23, 2009

China to Clarify Issues Concerning Judicial Recognition and Protection of Well-Known Trademarks

On April 23, 2009, the Supreme People's Court issued the Interpretations on Several Issues Regarding the Legal Application of Civil Cases Concerning Recognition and Protection of Well-Known Trademarks (the "Interpretations"). The Interpretations provide guidelines to the courts for recognizing and protecting well-known trademarks when hearing trademark-related cases. According to the Interpretations, the court should only recognize well-known trademarks when this recognition is necessary to serve as the factual basis of a trademark-infringement case or an unfair competition case and, even if the recognition is affirmed, it should not be included in the main body of a judgment or a reconciliation agreement. In addition, the Interpretations confirm that the party applying for the recognition of a well-known trademark should bear the burden of proof and provide certain documents in relation to relevant market share and market region for products using the trademark, length of use of trademark, etc. When a trademark is recognized as a well-known trademark, the court may issue an injunction to prohibit the use of an infringing trademark, even when the infringing trademark is in a "dissimilar class," while normal trademarks only afford such protection against infringing trademarks in a "similar class."

Copyright ©2009 by Kaye Scholer LLP. All Rights Reserved. This publication is intended as a general guide only. It does not contain a general legal analysis or constitute an opinion of Kaye Scholer LLP or any member of the firm on the legal issues described. It is recommended that readers not rely on this general guide but that professional advice be sought in connection with individual matters.References herein to "Kaye Scholer LLP & Affiliates," "Kaye Scholer," "Kaye Scholer LLP," "the firm" and terms of similar import refer to Kaye Scholer LLP and its affiliates operating in various jurisdictions.

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