Guiding Case No. 29: CGCP Annotations...Tianjin Qinglü 400 -611 -5253 022.ctsgz.cn. When the link...

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.

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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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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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Guiding Case No. 29


(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.


(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.


(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


(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


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


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


[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


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.

Guiding Case No. 29: CGCP Annotations...Tianjin Qinglü 400 -611 -5253 022.ctsgz.cn. When the link...

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