Consumers normally identify the products of a manufacturer or the services of a supplier by means of its brand. Brands are recognised by consumers in various ways and brand protection covers different aspects of such recognition.
The primary form of recognition is by way of trademarks. In fact, a trademark is usually synonymous with a brand. For example, the trademark of International Business Machine is “IBM”. To consumers, this trademark represents world-renowned IT products with particular qualities. In China, although companies may use an unregistered mark (provided it does not infringe other people’s lawful rights), exclusive right of use is only given to those marks that are registered with China’s Trademark Office. In other words, only the owner of a registered mark has the right to request the relevant administrative or judicial authorities to stop unauthorised use of the mark by others.
For unregistered marks, only those which have gained a fairly high degree of reputation in China may be afforded some protection by virtue of provisions on well-known marks in the Trademark Law or the provisions in the Anti-Unfair Competition Law. For instance, the trademark of Sotheby’s is not registered in China, but the Chinese court has held that the trademark “Sotheby” is an unregistered well-known mark and trade name. Thus, Sichuan Su Fu Bi Auction Company Limited was found to have committed trademark infringement and unfair competition because “Su Fu Bi” (???) in Chinese represents the same characters as used by Sotheby’s.
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