The reform of passing off in Chinese Law: effects of the 2017 revision of the Anti-Unfair Competition Law

Abstract

Confusion, or passing off, is a typical unfair practice recognized internationally, but national laws still differ from each other. Although the Chinese Anti-Unfair Competition Law of 1993 provided a narrow rule on passing off, a rich amount of case law has considerably enlarged its scope of application. The reform of the passing off regime in 2017 was essentially based on case law. This reform consists of four main aspects: expansion of the scope of protectable commercial signs: clarification of the applicability of the passing off rule to registered and unregistered trademarks; the adjustment of fame as a qualifying condition of passing off; and the adoption of a general rule prohibiting confusion. This reform has not only consolidated the case law and approach developed by the courts, but also bestowed an open and flexible spirit in the passing off regime which will enhance its efficiency in the fight against unfair imitation. *PhD (University of Paris I – Pantheon Sorbonne), LLM (Renmin University of China), LLB (Shandong University), Director of the Innovation & Competition Law Center, Former Vice-President of the Trademark & Unfair Competition Committee of the IP Case Law Center (Beijing) of the Chinese Supreme People's Court, Vice President of the Beijing IP Judicial Protection Association, Expert Council Member of China Trademark Association, Co-Chair of American Society of International Law Intellectual Property Interest Group, Visiting Professor or Research Fellow (University of Milan, University of Toulouse I, University of Paris I, University of Paris XI, Max Plank Institute for Procedural Law and Strasbourg University CEIPI). The author is thankful to Miss Kristina DaCosta (LLM graduate of Tsinghua University), Miss Ling Zhang (PhD candidate of Tsinghua University) and Mr Yu Huang (LLM graduate of Tsinghua University) for their valuable assistance in this research. This research is part of the project 20BFX142 of the National Social Science Fund of China.