guiding case no. 29: cgcp annotations...tianjin qinglü 400 -611 -5253 022.ctsgz.cn. when the link...
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Copyright 2016 by Stanford University
Guiding Cases in PerspectiveTM
指导性案例透视TM
Dr. Mei Gechlik
Founder and Director, China Guiding Cases Project
ZENG Cheng
Editor, China Guiding Cases Project
Associate, Jones Day
Guiding Case No. 29: CGCP Annotations
April 30, 2016 Edition∗
∗
The citation of this piece is: Mei Gechlik & ZENG Cheng, Guiding Case No. 29: CGCP Annotations,
STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, Guiding Cases in PerspectiveTM, Apr. 30, 2016,
http://cgc.law.stanford.edu/guiding-cases/guiding-case-29/. The authors thank Wenjie Ou for editing the original
Chinese version of this piece, Thomas Rimmer and Wenjie Ou for assisting in the translation of the Chinese version
of this piece into English, and Jordan Corrente Beck for editing the English version.
Guiding Cases in PerspectiveTM is a unique serial publication of the China Guiding Cases Project that
identifies the original judgments selected by the Supreme People’s Court, examines their transformation into
Guiding Cases, and explores the treatment of the Guiding Cases in subsequent cases.
2016.04.30 Edition
Copyright 2016 by Stanford University
2
I. The Process of Selecting Guiding Case No. 29
Tianjin China Youth Travel Service v. Tianjin Guoqing International Travel Agency, A
Dispute over an Unauthorized Use of Another’s Enterprise Name (“Guiding Case No. 29” or
“GC29”) is one of the guiding cases (“GCs”) included in the seventh batch of GCs released
by the Supreme People’s Court (“SPC”) on July 15, 2014.1 Its original judgments are the
(2011) Er Zhong Min San Zhi Chu Zi No. 135 Civil Judgment rendered by the No. 2
Intermediate People’s Court of Tianjin Municipality2 and the (2012) Jin Gao Min San Zhong
Zi No. 3 Civil Judgment rendered by the Higher People’s Court of Tianjin Municipality.3
This case was selected as a GC through the following process (see Chart 1):4
1. The Adjudication Committee of the Higher People’s Court of Tianjin Municipality
reviewed the case and agreed to submit it to the Office for the Work on Case
Guidance of the SPC for further consideration.
2. After a preliminary review, the Office for the Work on Case Guidance sent this case to
the Third Civil Tribunal for review and comment. On September 24, 2013, the Third
Civil Tribunal determined that this case had typical significance, and agreed to select
it as a candidate GC. On March 5, 2014, the Research Office of the SPC agreed to
submit the case to the Adjudication Committee for discussion after reporting it to the
leader in charge of this matter for approval. On June 17, the Adjudication Committee
of the SPC unanimously agreed to select it as a GC, and released it on June 26.
1 《天津中国青年旅行社诉天津国青国际旅行社擅自使用他人企业名称纠纷案》(Tianjin China
Youth Travel Service v. Tianjin Guoqing International Travel Agency, A Dispute over an Unauthorized Use of
Another’s Enterprise Name), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Case
(EGC29), Oct. 20, 2014 Edition, http://cgc.law.stanford.edu/guiding-cases/guiding-case-29. 2 The first-instance judgment has not been found and may have been excluded from publication.
Accordingly, these annotations focus on a comparison of GC29 and the second-instance judgment of the
underlying case. 3 《天津国青国际旅行社有限公司、天津中国青年旅行社擅自使用他人企业名称、姓名纠纷一案》
(2012)津高民三终字第 3号 (Tianjin Guoqing International Travel Agency and Tianjin China Youth Travel
Service, A Dispute over an Unauthorized Use of Another’s Enterprise Name and Name,(2012) Jin Gao Min San
Zhong Zi No. 3), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, Guiding Cases in PerspectiveTM
,
Guiding Case No. 29 Original Second-Instance Judgment, Apr. 30, 2016, http://cgc.law.stanford.edu/guiding-
cases/guiding-case-29/. This case was selected as a model case in 2013. See 最高人民法院办公厅 (General
Office of the Supreme People’s Court), 2012年中国法院知识产权司法保护:10大案件、10大创新性案件
和 50件典型案例名单 (2012 Chinese Courts’ Judicial Protection of Intellectual Property Rights: Lists of 10
Major Cases, 10 Innovative Cases, and 50 Model Cases), Apr. 18, 2013,
http://www.court.gov.cn/zscq/alfx/201306/t20130608_185208.html. 4 See最高人民法院案例指导工作办公室 (The Office for the Work on Case Guidance of the Supreme
People’s Court), 指导案例 29 号《天津中国青年旅行社诉天津国青国际旅行社擅自使用他人企业名称纠
纷案》的理解与参照 (Understanding and Referring to Guiding Case No. 29, Tianjin China Youth Travel
Service v. Tianjin Guoqing International Travel Agency, A Dispute over an Unauthorized Use of Another‘s
Enterprise Name), 《人民司法·案例》 (THE PEOPLE’S JUDICATURE·CASES), Issue No. 12 (2015).
For the process of selecting Guiding Cases, see《最高人民法院关于案例指导工作的规定》
(Provisions of the Supreme People’s Court Concerning Work on Case Guidance), passed by the Adjudication
Committee of the Supreme People’s Court on Nov. 15, 2010, issued on and effective as of Nov. 26, 2010,
STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Cases Rules, June 12, 2015 Edition,
http://cgc.law.stanford.edu/guiding-cases-rules/20101126-english/.
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3
Chart 1: The Process of Selecting Guiding Case No. 29
II. Comparison Between Guiding Case No. 29 and Its Original Judgment
1. Basic Facts of the Case
Based on the “Basic Facts of the Case” section of GC29, the following table compares
the similarities and differences between GC295 and the original second-instance judgment:
Guiding Case No. 29
Original Second-Instance Judgment
1 The court handled the case and ascertained:
(1) Plaintiff Tianjin China Youth Travel Service
(hereinafter referred to as “Tianjin Qinglü”), which was
established on November 1, 1986, was a state-owned
enterprise engaged in the business of domestic and
inbound and outbound tourism and was directly
subordinate to the Communist Youth League Tianjin
Committee. The Communist Youth League Tianjin
Committee had issued a certificate stating that “Tianjin
Qinglü” was the abbreviated enterprise name of Tianjin
China Youth Travel Service.
Essentially the same.
5 《天津中国青年旅行社诉天津国青国际旅行社擅自使用他人企业名称纠纷案》(Tianjin China
Youth Travel Service v. Tianjin Guoqing International Travel Agency, A Dispute over an Unauthorized Use of
Another’s Enterprise Name), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, Guiding Cases in
PerspectiveTM
, Guiding Case No. 29 Highlighted Edition, Apr. 30, 2016, http://cgc.law.stanford.edu/guiding-
cases/guiding-case-29/.
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4
Guiding Case No. 29
Original Second-Instance Judgment
(2) In 2007, Jin Wan Bao and other media [outlets]
began using the abbreviated name “Tianjin Qinglü” to
refer to Tianjin China Youth Travel Service when
reporting on activities undertaken by Tianjin China
Youth Travel Service. In its quotation sheets, travel
contracts, collaboration documents [signed] with
business operators in the same industry, invoices, and
other materials, as well as daily business activities,
including [advertising on] signboards on its business
premises, [Tianjin China Youth Travel Service] used
“Tianjin Qinglü” as the abbreviated name of the
enterprise.
Essentially the same.
(3) Established on July 6, 2010, Defendant Tianjin
Guoqing International Travel Agency Co., Ltd.
(hereinafter referred to as “Tianjin Guoqinglü”) was a
limited liability company engaged in such business as
domestic tourism and inbound tourism reception.
Essentially the same.
(4) At the end of 2010, Tianjin Qinglü discovered that
when “Tianjin China Youth Travel Service” or “Tianjin
Qinglü” was searched on Google’s search engine, the
top-ranked search result and the area used to indicate
sponsors’ links respectively displayed:
[t]he Internet business office of Tianjin China Youth
Travel Service www.lechuyou.com Tianjin Guoqing
online business office is your ideal choice and provides
excellent quality, caring, and pleasant service for your
trips
and
[t]he Internet business office of Tianjin Qinglü
www.lechuyou.com Tianjin Guoqing online business
office is your ideal choice and provides excellent
quality, caring, and pleasant service for your trips.
When the link [www.lechuyou.com] was clicked, it led
to a website entitled Tianjin Guoqing International
Travel Agency Lechuyou. At the top of the webpage
were words like “Tianjin Guoqing International Travel
Agency—Youth Travel Agency Qinglü/Tianjin Guolü”.
The webpage’s content included business information
and pricing for Tianjin Guoqing Travel. The website
copyright [was attributed to] Lechuyou Net−Tianjin
Guoqing and [the website] listed the contact telephone
number and business address of Tianjin Guoqinglü.
Essentially the same, but includes some
information irrelevant to this case in listing
the search results.
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Guiding Case No. 29
Original Second-Instance Judgment
(5) Meanwhile, when Tianjin Qinglü searched “Tianjin
Qinglü” on Baidu’s search engine, the top-ranked search
result and the area used to indicate promotional links
displayed:
[w]elcome to Tianjin Qinglü, a trustworthy business entity, bringing together classic domestic and
outbound tour routes, 100% of tours [organized], Tianjin Qinglü 400-611-5253 022.ctsgz.cn.
When the link was clicked, it again led to the
aforementioned website entitled Tianjin Guoqing
[International Travel Agency] Lechuyou.
Essentially the same, but mentions that
Tianjin Qinglü, to preserve the above-
mentioned evidence, had it notarized and
paid a notary fee of RMB 2700.
2
Plaintiff Tianjin Qinglü claimed: defendant Tianjin
Guoqinglü illegally used the plaintiff’s full enterprise
name and abbreviated name, “Tianjin Qinglü”, on [the
defendant’s] copyrighted webpage and in its website
source code and search engine, violating the
provision(s) of the anti-unfair competition law. [The
plaintiff] requested that the defendant be ordered to
immediately cease its act of unfair competition, publicly
apologize, pay RMB 100,000 in compensation for
economic losses, and bear the costs of the litigation.
Essentially the same, but does not include:
“violating the provision(s) of the anti-unfair
competition law. [The plaintiff] requested
that the defendant be ordered to immediately
cease its act of unfair competition, publicly
apologize, pay RMB 100,000 in
compensation for economic losses, and bear
the costs of the litigation.”
3
Defendant Tianjin Guoqinglü defended its position,
claiming: [the abbreviated name] “Tianjin Qinglü” was
not registered and was [thus] not owned by the plaintiff.
The plaintiff’s claimed losses were not based on facts or
law, [and the defendant therefore] requested that the
court reject the plaintiff’s litigation claims.
Does not have this expression: “not owned
by the plaintiff. The plaintiff’s claimed
losses were not based on facts or law, [and
the defendant therefore] requested that the
court reject the plaintiff’s litigation claims.”
However, does mention that Tianjin
Guoqinglü’s grounds of appeal included:
Plaintiff Tianjin Qinglü did not legally
register “Tianjin Qinglü”, which, therefore,
was not for the plaintiff’s exclusive use.
Overall, the “Basic Facts of the Case” section of GC29 is largely based on the original
second-instance judgment.
2. Reasons for the Adjudication
The No. 2 Intermediate People’s Court of Tianjin Municipality rendered the first-
instance judgment:
1. [the court orders] defendant Tianjin Guoqing International Travel Agency Co., Ltd. to
immediately cease the infringing act;
2. [the court orders] the defendant to publish, within 30 days of the judgment’s coming
into effect, a statement of apology on its company website for 15 days;
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3. [the court orders] the defendant to pay plaintiff Tianjin China Youth Travel Service
RMB 30,000 as compensation for economic losses;
4. [the court] rejects the plaintiff's other litigation claims.
Dissatisfied with the judgment, Tianjin Guoqing International Travel Agency Co., Ltd.
appealed to the Higher People’s Court of Tianjin Municipality, which rendered the following
judgment:
1. [the court] upholds Items 2, 3, and 4 of the aforementioned civil judgment [rendered
by] the No. 2 Intermediate People’s Court of Tianjin Municipality;
2. [the court] alters Item 1 [of the judgment] from “[the court orders] defendant Tianjin
Guoqing International Travel Agency Co., Ltd. to immediately cease the infringing
act” to “[the court orders] defendant Tianjin Guoqing International Travel Agency
Co., Ltd. to immediately cease using the words ‘Tianjin China Youth Travel Service’
and ‘Tianjin Qinglü’ and [cease using the aforementioned words] as the search link
keywords for Tianjin Guoqing International Travel Agency Co., Ltd.’s website”;
3. [the court] rejects the defendant’s other claims for appeal.
GC29 quite clearly provides the adjudication reasons of the Higher People’s Court of
Tianjin Municipality, but there are still differences. Based on the “Reasons for the
Adjudication” section of GC29, the following table compares the similarities and differences
between GC29 and the original second-instance judgment:
Guiding Case No. 29
Original Second-Instance Judgment
1
Article 6, Paragraph 1 of the Interpretation of the
Supreme People’s Court on Several Issues Concerning
the Application of Law in the Handling of Unfair
Competition Civil Cases provides:
An enterprise name that has been registered in accordance with law with the authority in charge of
enterprise registration, or a foreign (regional)
enterprise name that is in commercial use within the territory of China, should be deemed to be an
“enterprise name” [as set forth in] Article 5, Item (3)
of the anti-unfair competition law. A shop name within an enterprise name that has a certain degree of
market visibility [and] that is known to the relevant public may be deemed to be an “enterprise name” [as set forth in] Article 5, Item (3) of the anti-unfair
competition law.
Therefore, an abbreviated enterprise name that has been
widely used externally by an enterprise for a long
period of time, that has a certain degree of market
visibility and is known to the relevant public, and that
Essentially the same, but with the following
differences:
Does not have this expression: “has been
widely used externally by an enterprise for a
long period of time”.
Content related to Article 6, Paragraph 1 of
the Interpretation of the Supreme People’s
Court on Several Issues Concerning the
Application of Law in the Handling of Unfair
Competition Civil Cases only appears in the
“The original trial court opined” section
(which shows the court of first instance’s
reasoning), but not in the “This court opines”
section (which shows the court of second
instance’s reasoning) of the second-instance
judgment. Also, this provision is not listed
as a legal basis of either the first-instance or
the second-instance holding; nor is it listed in
the “Related Legal Rule(s)” section of GC29.
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Guiding Case No. 29
Original Second-Instance Judgment
actually already functions as a trade name, should also
be regarded as an enterprise name and [thus] be
protected [under law].
2
As “Tianjin China Youth Travel Service” was the
enterprise name that had been used by the plaintiff since
its establishment in 1986, the plaintiff enjoyed an
exclusive right to use the enterprise name. As an
abbreviated enterprise name, “Tianjin Qinglü” had been
widely used in [Tianjin China Youth Travel Service’s]
business activities since 2007. Relevant publicity
reports and clients had also used “Tianjin Qinglü” to
refer to Tianjin China Youth Travel Service. Through
many years of use and publicity in [its] business
activities, the [abbreviated enterprise name] had already
[come to] enjoy a certain degree of market visibility, be
known to the relevant public, have a stable affiliated
relationship with Tianjin China Youth Travel Service,
and have the significance of a commercial mark that can
identify its business operator. Therefore, “Tianjin
Qinglü” could be regarded as an enterprise name and
[thus] be protected along with “Tianjin China Youth
Travel Service”.
Essentially the same, but the following
expressions only appear in the “The original
trial court opined” section and not in the
“This court opines” section of the second-
instance judgment:
“the plaintiff enjoyed the right to use the
enterprise name”;
“had been widely used in [Tianjin China
Youth Travel Service’s] business activities
since 2007. Relevant publicity reports and
clients had also”;
“market visibility”; and
“be known to the relevant public”.
3
Article 5, Item (3) of the Anti-Unfair Competition Law
of the People’s Republic of China provides that when
engaging in market transactions, business operators
must not adopt unfair means to harm their competitors,
including using, without authorization, another’s
enterprise name to cause others to mistake their
products for those [of the other]. Therefore, where,
without authorization, a business operator uses
another’s enterprise name or abbreviated enterprise
name as an Internet bid-for-ranking keyword, causing
the public to be confused and to misidentify [the
enterprise], and uses another’s visibility and goodwill to
achieve the goal of publicizing and promoting itself,
[these acts] are acts of unfair competition and should be
prohibited.
Mentions Article 5, Item (3) of the Anti-
Unfair Competition Law of the People’s
Republic of China, but without providing
detailed content.
4
As a business operator engaged in travel services,
Tianjin Guoqinglü, without Tianjin Qinglü’s
authorization, used various means, including saving
keywords that were related to Tianjin Qinglü’s
enterprise name on relevant search engines and then
using [those keywords] in website source code, to cause
Tianjin Guoqinglü’s website link to appear directly
when the relevant public searched for “Tianjin China
Youth Travel Service” and “Tianjin Qinglü”. As a
result, [the relevant public] was directed to inquire
about travel services on Tianjin Guoqinglü’s website,
which had the effect of using the initial confusion of
Essentially the same, but with the following
differences:
The original judgment does not have these
expressions: “As a business operator
engaged in travel services” and “had the
effect of using the initial confusion of [these]
Internet users to compete for potential
customers” ;
Other content listed here either appears in the
“The original trial court opined” section or in
the “This court opines” section of the
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Guiding Case No. 29
Original Second-Instance Judgment
[these] Internet users to compete for potential
customers. [Tianjin Guoqinglü], subjectively, had the
intent to cause the relevant public to become confused
and to misidentify [the enterprise] in [its] Internet
searches and inquiries. [Tianjin Guoqinglü],
objectively, used “Tianjin China Youth Travel Service”
and “Tianjin Qinglü” without authorization, [thereby]
making use of Tianjin Qinglü’s corporate reputation to
harm Tianjin Qinglü’s legal rights and interests.
[Tianjin Guoqinglü’s] acts were [therefore] acts of
unfair competition and should be stopped in accordance
with law.
As Tianjin Qinglü’s competitor in the same industry,
Tianjin Guoqinglü, being fully aware that Tianjin
Qinglü’s enterprise name and abbreviated name had
higher visibility, still used [those names] without
authorization and had the intent to borrow another’s
name to seek improper benefits for itself, and [thus] its
subjective bad faith was obvious. According to Article
120 of the General Principles of the Civil Law of the
People’s Republic of China, Tianjin Guoqinglü should
be legally responsible for ceasing the infringement,
eliminating the effects [of such acts], and [paying]
compensation for losses.
second-instance judgment.
5
The words “Youth Travel Service Qinglü” displayed at
the top of Tianjin Guoqinglü’s website did not fall
within the scope of protection of the plaintiff’s
enterprise name and [thus the use of those words] did
not constitute unfair competition against the plaintiff.
Essentially the same, but this content only
appears in the “The original trial court
opined” section.
Overall, there are quite a few differences between the “Reasons for the Adjudication”
section of GC29 and the original second-instance judgment. The analysis of these differences
touches on the reasons for selecting this case as a GC, which are discussed below.
III. Reasons for Selecting Guiding Case No. 29
According to the Office for the Work on Case Guidance of the SPC, there were two
reasons for selecting GC29:
1. Laws and Judicial Interpretations Do Not Specify How to Protect Abbreviations of
Enterprise Names6
6 最高人民法院案例指导工作办公室 (The Office for the Work on Case Guidance of the Supreme
People’s Court), supra note 4, at 31.
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According to Article 120 of the General Principles of the Civil Law of the People’s
Republic of China, legal persons enjoy the right to [use] a name.7 Article 5, Item (3) of the
Anti-Unfair Competition Law of the People’s Republic of China (the “Anti-Unfair
Competition Law”) provides that when engaging in market transactions, business operators
must not adopt unfair means to harm their competitors, including using, without
authorization, another’s enterprise name to cause others to mistake their products for those
[of the other].8 It is thus clear that the law provides for the right to use an enterprise name.
Article 6, Paragraph 1 of the Interpretation of the Supreme People’s Court on Several Issues
Concerning the Application of Law in the Handling of Unfair Competition Civil Cases (the
“Unfair Competition Interpretation”) extends the meaning of “enterprise name” to “[a] shop
name within an enterprise name that has a certain degree of market visibility [and] that is
known to the relevant public”.9
Nevertheless, the abovementioned laws and judicial
interpretation do not specify how to protect abbreviations of enterprise names.
The SPC clarifies the above issue through GC29. The first paragraph of the “Main
Points of the Adjudication” of GC29 is:
An abbreviated enterprise name that has been widely used externally by an
enterprise for a long period of time, that has a certain degree of market
visibility and is known to the relevant public, and that actually already
functions as a trade name, may be regarded as an enterprise name and
[thus] be protected [under law].
Therefore, GC 29 “clearly and appropriately expands the scope of protection for enterprise
names, which is conducive to better protection of an enterprise’s right to [use] its name”.10
2. The Combination of Acts of Unauthorized Use of Another’s Enterprise Name with
Internet Search Engine Services Is Novel11
In GC29, the defendant’s act of unauthorized use of another’s enterprise name on the
Internet caused users to mistakenly think that the defendant had a specific connection with
the plaintiff, a travel services business operator that was known to the relevant public. This
act harmed the plaintiff’s legal rights and interests and was an act of unfair competition.12
7 《中华人民共和国民法通则》 (General Principles of the Civil Law of the People’s Republic of
China), passed and issued on Apr. 12, 1986, effective as of Jan. 1, 1987, amended on and effective as of Aug.
27, 2009, http://www.npc.gov.cn/wxzl/wxzl/2000-12/06/content_4470.htm. 8 《中华人民共和国反不正当竞争法》 (Anti-Unfair Competition Law of the People’s Republic of
China), passed and issued on Sept. 2, 1993, effective as of Dec. 1, 1993,
http://www.npc.gov.cn/wxzl/wxzl/2000-12/05/content_4600.htm 9 《最高人民法院关于审理不正当竞争民事案件应用法律若干问题的解释》 (Interpretation of the
Supreme People’s Court on Several Issues Concerning the Application of Law in the Handling of Unfair
Competition Civil Cases), passed by the Adjudication Committee of the Supreme People’s Court on Dec. 30,
2006, issued on Jan. 12, 2007, effective as of Feb. 1, 2007,
http://old.chinacourt.org/public/detail.php?id=231095. 10
最高人民法院案例指导工作办公室 (The Office for the Work on Case Guidance of the Supreme
People’s Court), supra note 4, at 30. 11 See id. 12
See id.
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This new method of unfair competition that exploits Internet search engine services is novel.
Therefore, the SPC can provide guidance through GC29. The second paragraph of the Main
Points of the Adjudication of GC29 reads:
Where, without authorization, [a business operator] uses another’s
abbreviated enterprise name, which actually already functions as a trade
name, as an Internet bid-for-ranking13
keyword in business activities,
causing the relevant public to be confused and to misidentify [the
enterprise], [the unauthorized use of the abbreviated enterprise name] is an
act of unfair competition.
The authors believe the novel combination of unauthorized use of another’s
abbreviated enterprise name with Internet search engine services is the primary reason that
GC29 was selected. The SPC itself adjudicated a case involving abbreviated enterprise
names as early as 2009. In Shandong Crane Factory Co., Ltd. v. Shandong Shanqi Heavy
Industry Co., Ltd., A Retrial Application Case on a Dispute over Infringement of An
Enterprise’s Right to Use Its Name (SPC’s (2008) Min Shen Zi No. 758 Civil Ruling),14
the
SPC determined that “Shanqi” was a specific abbreviation of Shandong Crane Factory Co.,
Ltd. that was recognized by the public and opined that Article 5, Item (3) of the Anti-Unfair
Competition Law, which provides for the protection of enterprise names, could be applied to
protect the specific abbreviated name of that enterprise. Therefore, the SPC adjudicated that
Shandong Shanqi Heavy Industry Co., Ltd.’s use, without authorization, of the abbreviation
of another’s enterprise name that had a certain degree of market visibility, was known to the
relevant public, and actually already functioned as a trade name, constituted unfair
competition. This case went through first-instance, second-instance, and retrial procedures
and was finally selected by the SPC as one of the 50 model cases on judicial protection of
intellectual property rights by Chinese courts in 2009.15
However, this case has not been
selected as a GC and, in the authors’ opinion, this is due to the lack of the sort of novelty that
appears in GC29.
IV. Brief Comments
With respect to the similarities and differences between GC29 and the original
second-instance judgment and to the reasons for selecting the case as a GC, the authors have
the following observations.
13 Translators’ note: “Internet bid-for-ranking” (“竞价排名”) is a means of bidding for a higher position
on an online search results page. For more information on the topic, see
http://baike.baidu.com/view/40571.htm. 14
《山东起重机厂有限公司诉山东山起重工有限公司侵犯企业名称权纠纷申请再审案》(最高人民
法院(2008)民申字第 758号民事裁定书) (Shandong Crane Factory Co., Ltd. v. Shandong Shanqi Heavy
Industry Co., Ltd., A Retrial Application Case on a Dispute over Infringement of An Enterprise’s Right to Its
Name (SPC’s (2008) Min Shen Zi No. 758 Civil Ruling),
http://www.chinalaw.gov.cn/article/fgkd/xfg/aljx/201012/20101200330403.shtml. 15
See《最高人民法院关于印发 2009 年中国法院知识产权司法保护 10 大案件和 50 件典型案例的
通知》(Notice of the Supreme People’s Court on the Publication for Release of the 2009 Chinese Courts’
Judicial Protection of Intellectual Property Rights: Lists of 10 Major Cases and 50 Model Cases), issued by the
Supreme People’s Court on Apr. 11, 2010, http://courtapp.chinacourt.org/fabu-xiangqing-1114.html.
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1. The Expression “Has Been Widely Used Externally by an Enterprise for a Long
Period of Time” Used in Guiding Case No. 29 is Unclear
In the “Reasons for the Adjudication” section, the SPC first quotes Article 6,
Paragraph 1 of the Unfair Competition Interpretation, pointing out that “[a] shop name within
an enterprise name that has a certain degree of market visibility [and] that is known to the
relevant public” may be deemed to be an “enterprise name” as set forth in the Anti-Unfair
Competition Law. From this, the SPC concludes:
Therefore, an abbreviated enterprise name that has been widely used
externally by an enterprise for a long period of time, that has a certain degree
of market visibility and is known to the relevant public, and that actually
already functions as a trade name,16
should also be regarded as an enterprise
name and [thus] be protected [under law].
This conclusion echoes the first paragraph of the “Main Points of the Adjudication” of GC29.
The expression “has been widely used externally by an enterprise for a long period of
time” does not appear in the original second-instance judgment of GC29. The SPC also did
not provide an explanation on this additional requirement in the “Reasons for the
Adjudication” of GC29. Article 9 of the Detailed Implementing Rules on the “Provisions of
the Supreme People’s Court Concerning Work on Case Guidance”17
provides:
Where a case being adjudicated is, in terms of the basic facts and application
of law, similar to a Guiding Case released by the Supreme People’s Court, the
[deciding] people’s court at any level should refer to the “Main Points of the
Adjudication” of that relevant Guiding Case to render its ruling or judgment .
This shows that the “Main Points of the Adjudication” is of importance. However, because
the SPC does not offer a fuller explanation for what it means for a name to have been “widely
used externally by an enterprise for a long period of time”, courts that handle subsequent
cases may encounter difficulties when applying GC29.
2. The “Main Points of the Adjudication” Section of Guiding Case No. 29 Does Not
Mention the Use of an Abbreviated Enterprise Name in Website Source Code
The second paragraph of the “Main Points of the Adjudication” of GC29 reads:
16 According to Article 7 of the Regulation on the Administration of the Enterprise Name Registration,
“字号” (“shop name”) and “商号” (“trade name”) are treated in the same ways. See 《企业名称登记管理规定》
(Regulation on the Administration of the Enterprise Name Registration), approved by the State Council on May
6, 1991, issued by the State Administration for Industry and Commerce on July 22, 1991, effective as of Sept. 1,
1991, revised and issued on Nov. 9, 2012,
http://www.chinalaw.gov.cn/article/fgkd/xfg/xzfg/201211/20121100378270.shtml. 17
《〈最高人民法院关于案例指导工作的规定〉实施细则》(Detailed Implementing Rules on the
“Provisions of the Supreme People’s Court Concerning Work on Case Guidance”), passed by the Adjudication
Committee of the Supreme People’s Court on Apr. 27, 2015, issued on and effective as of May 13, 2015,
STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Cases Rules, June 12, 2015 Edition,
http://cgc.law.stanford.edu/guiding-cases-rules/20150513-english/.
2016.04.30 Edition
Copyright 2016 by Stanford University
12
Where, without authorization, [a business operator] uses another’s abbreviated
enterprise name, which actually already functions as a trade name, as an
Internet bid-for-ranking keyword in business activities, causing the relevant
public to be confused and to misidentify [the enterprise], [the unauthorized use
of the abbreviated enterprise name] is an act of unfair competition. (emphasis
added)
In the “Main Points of the Adjudication”, there is no explicit mention of the use of the
abbreviated enterprise name in the website source code. However, the original second-
instance judgment and the “Reasons for the Adjudication” of GC29 both mention that Tianjin
Guoqinglü used the abbreviated enterprise name of Tianjin Qinglü in its website source code.
From a technical perspective, website business operators can set up keywords in the website
source code, so that the website will appear in the search results when Internet users search
such keywords. Setting up keywords in the website source code is different from choosing
bid-for-ranking keywords, most notably in that the former typically does not implicate a fee
paid to search engine providers. In other words, even when a website does not participate in
bid-for-ranking, if that website sets, without authorization, another’s abbreviated enterprise
name in its website source code as the website’s search keyword, then the search results
would probably include the website that uses, without authorization, another’s abbreviated
enterprise name when the relevant public search for that abbreviation. This would cause the
relevant public to be confused and to misidentify the website.
According to the adjudication of GC29, the unauthorized use of another’s abbreviated
enterprise name that actually functions as a trade name as a keyword for website link
searches, causing the public to be confused and misidentify the website is also unfair
competition. However, the “Main Points of the Adjudication” only mentions using the
above-mentioned abbreviated name as a bid-for-ranking keyword. This inconsistency could
result in difficulties when courts that handle subsequent cases try to use GC29. Suppose that
an enterprise only uses another’s abbreviated enterprise name that actually functions as a
trade name in its website source code, rather than as a bid-for ranking keyword, and causes
the relevant public to be confused by the search results and misidentify the website, should
the court that handles the case refer to GC29? The SPC needs to provide further explanation
on this issue.