Recently, the Supreme People’s Court issued the regulation on the trial of administrative cases concerning trademark authorization and ownership (hereinafter the regulation) to restrict the acts of registering famous names as marks. Henceforth, the names of public figures in political, cultural and commercial fields cannot be registered.
According to the article 10 of the Trademark Law, those detrimental to socialist morals or customs, or having other unhealthy influences shall not be used as trademark. The issued regulation further defines that the court shall determine the mark as having unhealthy influences, if it or its components have negative impacts on public interests and social order.
Regarding the disputes in famous names, article 12 prescribes that the trademark shall be determined as infringing the name right of a natural person, if relevant public relate the mark to this person.
In terms of film and television programs and character names within the copyright protection term, article 22 provides that the court shall support the litigant’s claim of prior rights, if the title or name of the work enjoys high reputation, and using it as trademark may lead the public to assume that there is specific relations between the mark and the right owner.
It is also ruled that when the litigant claims that the disputable mark infringed their unregistered famous mark, the court shall consider the following factors, including whether to cause confusion, the degree of approximateness, the distinctiveness and reputation of the mark, the degree of attention of the public. The subjective intention and the evidence of actual confusion can serve as the referential factor for determining the possibility of confusion.
