On March 17, 2022, the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Anti-Unfair Competition Law of the People's Republic of China (hereinafter referred to as the "New Interpretation") was issued as a supplementary judicial interpretation of the current Anti-Unfair Competition Law of the People's Republic of China (hereinafter referred to as the "Anti-Unfair Competition Law"). The New Interpretation has been effective since March 20, 2022 and the Interpretation of the Supreme People's Court on Some Matters about the Application of Law in the Trial of Civil Cases Involving Unfair Competition issued in 2007 (hereinafter referred to as the "Old Interpretation") has been abolished.

It is worth noting that before issuing the New Interpretation, the Supreme People's Court issued the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Anti-Unfair Competition Law of the People's Republic of China (Draft for Comments) (hereinafter referred to as the "Draft for Comments") on August 19, 2021 to solicit opinions from the public. Compared with the Draft for Comments, the New Interpretation has several changes, and the study of such changes would be helpful to understand the New Interpretation.

For the correct understanding of the New Interpretation and better application of the Anti-Unfair Competition Law, the following presents the contents and changes of the New Interpretation in the form of Q&A.

Article 1 of the New Interpretation clarifies that general provisions of the Anti-Unfair Competition Law shall apply only if clauses of the intellectual property laws or specific clauses of the Anti-Unfair Competition Law are not applicable. In judicial practice, there are still cases where general provisions of the Anti-Unfair Competition Law are applied when the specific provisions stipulated in Chapter II of the Anti-Unfair Competition Law or the clauses of the intellectual property laws shall prevail. When answering questions from reporters on the relevant issues of the New Interpretation, the representative of the Third Civil Division of the Supreme People's Court mentioned that this article clarified the applicable rules of laws including general provisions of the Anti-Unfair Competition Law, clauses of the intellectual property laws, and the specific clauses of the Anti-Unfair Competition Law, which means, general provisions of the Anti-Unfair Competition Law shall apply only if clauses of the intellectual property laws or specific clauses of the Anti-Unfair Competition Law are not applicable[1]. 

Article 1: Where a business operator disrupts market competition order and harms the lawful rights and interests of another business operator or consumers, which falls outside the violations of Chapter II of the Anti-Unfair Competition Law or other laws such as the Patent Law, the Trademark Law or the Copyright Law, the people’s court may make a determination of the case by applying Article 2 of the Anti-Unfair Competition Law.

Although the Anti-Unfair Competition Law does not clearly stipulate that competition relationship is the constituent element of unfair competition, the second article of the Anti-Unfair Competition Law stipulates that, "an act of unfair competition refers to ... harming the lawful rights and interests of another business operator or consumers...". Accordingly, many previous cases have proposed that there should be a competitive relationship between the "operators" who conduct the unfair competition and the "other operators" who are damaged[2]，so that the Anti-Unfair Competition Law can be applied.

However, there are always disputes in judicial practice about whether there must be a competitive relationship between the injured subject and the acting subject, and how to interpret the competitive relationship. The definition of competition relationship varies from the horizontal competition relationship in the early stage of the implementation of the Anti-Unfair Competition Law to the more widespread indirect horizontal competition relationship in recent years. Some cases tend to weaken the concept of competition relationship, and some cases define competition relationship at a broader level. Such as, in [2014] yizhongminzhongzi No.3283 case, the Beijing First Intermediate People's Court ruled that" If the operator's behavior not only has the possibility of causing damage to the operating interests of other operators, but also the operator will obtain real or potential operating interests based on this behavior at the same time, it can be determined that the two operators have a competitive relationship"; While in [2021] zuigaofaminzai No. 337 case the Supreme People's Court held that "whether there is a competitive relationship between the parties is not a necessary condition for determining unfair competition".

Article 2 of the New Interpretation defines the constituent elements of "competitive relationship" using a broader and relatively specific expression of "there are possible relationships such as competing for trading opportunities and undermining competitive advantage", which makes the implicit element clearer. The broader and relatively specific expression of Article 2 is conducive to the unification of judgment standards, and can make the Anti-Unfair Competition Law more durable to adapt to the rapid development of market changes.

Article 2: In respect of a business operator, a market entity who may compete for a trading opportunity with the business operator or undermine a competitive advantage of the business operator in the course of the latter’s production or business activities may be determined by the people’s court as the "another business operator" stated in Article 2 of the Anti-Unfair Competition Law.

The main purpose of Article 3 is supposed to further improve the provisions of "business ethics" based on the judgment standards established by [2009] minshen No.1065 case.

Different from the judgment standards mentioned above and the rule of the Draft for Comments, the first paragraph of Article 3 of the New Interpretation states that business ethics need not be "generally recognized". In [2009] minshen No.1065 case the Supreme People's Court held that "The commercial ethics required by the Anti-Unfair Competition Law must be commercial ethics that is generally recognized, which refers to the universally recognized and accepted standard of conduct in the specific commercial field, and has the recognized and general nature." This expression is basically followed by the Draft for Comments, which rules that "The 'business ethics' stipulated in Article 2 of the Anti-Unfair Competition Law refers to the code of conduct generally recognized and followed in specific business fields." The so-called "code of conduct generally recognized and followed in specific business fields" can be understood as recognized business ethics from the literal meaning. Therefore, both the above-mentioned judgment standards and the Draft for Comments believe that the "business ethics" stipulated in Article 2 of the Anti-Unfair Competition Law must be generally recognized business ethics. However, the New Interpretation adopts different expressions, stipulating that "the code of conduct generally recognized and followed in specific business fields" (i.e., recognized business ethics) is only one of situations that can be recognized as "business ethics" stipulated in Article 2 of the Anti-Unfair Competition Law. According to this adjustment, business ethics need not be "generally recognized". This also echoes the practice of amending "recognized business ethics" in Article 2 to "law and business ethics" when the Anti-Unfair Competition Law was revised in 2017.

On the basis of the above judgment standards, the second paragraph of Article 3 further enriches the considerations of the court in determining the violation of "business ethics". In [2009] minshen No.1065 case the Supreme People's Court held that " Specific to the recognized business ethics in cases, it should be analyzed and judged in combination with the specific circumstances of the case...The legitimacy of an act not listed in Chapter II of the Anti-Unfair Competition Law should be judged mainly by whether the act violates the recognized business ethics. Generally recognized business ethics needs to be determined according to specific business fields and case situations. The general practice of specific industries, behavioral consequences, the subjective state of both parties to the transaction and the voluntary choice of the opposite party to the transaction may all be considered. " As for whether the operator has violated business ethics, the second paragraph of Article 3 further enriches the considerations on the basis of the above-mentioned judgment standards, focuses on the impact on the protection of legal interests under the Anti-Unfair Competition Law. It is necessary to consider comprehensively in combination with the specific circumstances of the case, including (1) industry rules or business practices; (2) the subjective state of the operator and the willingness of the counter-party to choose; (3) the impact on consumers' rights and interests, market competition order, social and public interests and other factors.

The third paragraph of Article 3 clarifies the regulatory documents that can be referred to when determining the violation of "business ethics". In [2009] minshen No.1065 case the Supreme People's Court mentioned that "general practice in a particular industry" can be a consideration in determining a violation of business ethics. In the past practice, the judiciary has accumulated a lot of practical experience in identifying "business ethics" in specific industries with reference to the regulation of industry authority industry competent departments and industry self-regulation. In [2013] minshanzhongzi No.3 case the Supreme People's Court held that industrial regulations such as the Several Provisions on Regulation of the Order of Internet Information Service Market promulgated by the Ministry of Industry and Information Technology and the Self-discipline Convention for the Internet Terminal Software Service Industry issued by the Internet Society of China "often reflect the recognized business ethics and standards of conduct in the industry, and can become one of the important sources for the people's court to discover and identify the industry's customary standards of conduct and recognized business ethics". The New Interpretation confirms such judicial practice that when determining whether a business operator has violated business ethics, the people’s court may refer to the professional standards, technical standards, self-regulation agreements or the like formulated by industry authorities, industry associations or organizations for industry self-regulation.

The above judgment criteria has important referring value for how to identify "violation of business ethics" in the rapid development of emerging industries. Previously, when the Anti-Unfair Competition Law was revised in 2017, the "recognized business ethics" in Article 2 was changed to "law and business ethics". According to this, some people hold opinions that "business ethics" need not be "generally recognized", but with no consistent and direct evidence. The New Interpretation clarifies that when identifying "business ethics", the court can consider many factors according to the specific circumstances of the cases, that is, in the face of the endless market dynamics of emerging industries and business models, the determination of "business ethics" can be made according to the specific period and situation of individual cases.

Article 3: A code of conduct generally followed and recognized in a specified commercial field may be determined by the people’s court as the "business ethics" stated in Article 2 of the Anti-Unfair Competition Law.

The people's court shall determine in accordance with the law whether a business operator has violated business ethics in light of the specific circumstances of the case and by taking into overall consideration, industry or business practices, the subjective state of the business operator, the counterparty’s will to choose, the impact on consumer rights and interests, market competition order, and social and public interests, among other factors.

When determining whether a business operator has violated business ethics, the people’s court may refer to the professional standards, technical standards, self-regulation agreements or the like formulated by industry authorities, industry associations or organizations for industry self-regulation.

Paragraph 1 of Article 4: A mark with a certain market awareness and any distinctive characteristic that distinguishes the source of the goods bearing the mark may be determined by the people’s court as a mark with "certain influence" as stated in Article 6 of the Anti-Unfair Competition Law.

Paragraph 2 of Article 9 of the New Interpretation for the first time clarifies that the name of an individually owned business, a farmers' professional cooperative (association) or any other market entity that is not "enterprise" specified by laws or administrative regulations can be protected under Subparagraph 2 of Article 6 of the Anti-Unfair Competition Law. It specifies that the names of various types of market entities in the current complex business environment can be protected as enterprise names, responding to the legal application disputes when the names of various market subjects other than enterprises need to be protected in judicial practice.

Paragraph 2 of Article 9: A determination of a name with certain influence, such as the name (including abbreviated name, trade name and the like) of an individually owned business, a farmers' professional cooperative (association) or any other market entity specified by law or administrative regulations, may be made by the people’s court under subparagraph (2) of Article 6 of the Anti-Unfair Competition Law.

Article 11 of the New Interpretation stipulates that the commercial confusion clause regulates the unauthorized use of marks that are similar to the name of an enterprise or the name of a website, etc. Based on the second and third paragraphs of Article 6 of the Anti-Unfair Competition Law,Article 11 further rules that marks similar to the name of an enterprise or the name of a website shall not be used without authorization.

Article 11: Where a business operator uses without authorization a mark similar to another person’s name, such as the name (including abbreviated, trade name and the like) of an enterprise, the name of (including abbreviated name and the like) of a social group, the name (including pseudonym, stage name, translated name and the like) of an individual, the main part of a domain name, the name of a website, a web page or the like which has certain influence, leading to the misunderstanding that the goods provided by the business operator are those of that another person or have a certain connection with that another person, a claim made that the case should fall under the circumstances described in subparagraph (2) or (3) of Article 6 of the Anti-Unfair Competition Law shall be supported by the people’s court.

Paragraph 1 of Article 13 of the New Interpretation clarifies that unauthorized use of a mark with "certain influence" other than the name of a product, the name of an enterprise or the name of a website shall be regulated by Paragraph 4 of Article 13, which provides a legal basis for the regulation of confusion use of new business signs at present and in the future, such as the name of online store, the name of program or column, the name of social media account, etc.

Paragraph 2 of Article 13 of the New Interpretation clarifies the situation regulated by Article 58 of the Trademark Law of the People's Republic of China, that using characters of the registered or unregistered well-known trademarks of others in the name of an enterprise to mislead the public that constitutes unfair competition shall be subject to Paragraph 4 of Article 6 of the Anti-Unfair Competition Law. This rule helps to correct and unify the judicial practice in case some courts applied the general provision of Article 2 of the Anti-Unfair Competition Law to such behavior.

Article 13: Where any of the following acts of confusion conducted by a business operator is sufficient to lead to a misunderstanding that any goods provided by the business operator are those of another person or have a certain connection with another person, the people’s court may make a determination of the case under subparagraph (4) of Article 6 of the Anti-Unfair Competition Law:

(1) unauthorized use of a mark with "certain influence" other than any described in subparagraph (1), (2), or (3) of Article 6 of the Anti-Unfair Competition Law; or

(2) use of a registered trademark or unregistered well-known trademark of another person as the trade name in the name of an enterprise to mislead the public.

Paragraph 1 of Article 14 of the New Interpretation clarifies that the acts of a party solely as an accused seller of infringing goods shall also be regulated by Article 6 of the Anti-Unfair Competition Law. Paragraph 2 of Article 14 clarifies the constituent elements of the seller's defense of legitimate source. These two paragraphs are consistent with Paragraph 3 of Article 57 and Article 64 of the Trademark Law respectively.

Article 14: Where a business operator has sold goods bearing a mark that violates the provisions of Article 6 of the Anti-Unfair Competition Law, leading to a misunderstanding that the goods are those of another person or have a certain connection with another person, a claim made that the case should fall under the circumstances described in Article 6 of the Anti-Unfair Competition Law shall be supported by the people's court.

If any business operators selling the infringing goods described in the preceding paragraph did not know that these goods were infringing and can prove that the goods were lawfully acquired by themselves and provide the supplier, a claim made by such business operators that they should not be held liable for compensation shall be supported by the people's court.

Article 15 of the New Interpretation clarifies that the parties who intentionally help others to conduct an act of confusion shall be jointly and severally liable, which is basically consistent with Paragraph 6 of Article 57 of the Trademark Law. Compared with Article 75 of the PRC Trademark Law Implementing Regulations, specific conditions of convenience listed in Article 15 doesn't include "online commodity trading platform". The reason might be that the situation of unauthorized use of marks with certain influence, which is mainly involved in Article 6 of the Anti-Unfair Competition Law, is relatively complex and hidden. The operators of online trading platform may not easily identify users’ rights and interests like trademark registration certificate and other rights-based certificates. Therefore, the online trading platform is not listed as one of typical conditions of convenience.

Article 15: Where any storage, transportation, mailing, printing, concealment, business premises or other conditions are provided to facilitate an act of confusion conducted by another person, a request to make a determination of the case under the first paragraph of Article 1169 of the Civil Code shall be supported by the people’s court.

Article 18 of the New Interpretation is a new article which clarifies that based on the relief principle of tort damage, damages can only be claimed if the loss is suffered. False or misleading business advertising of a party may not directly damage the interests of other operators, but the party might gain a competitive advantage through the above commercial advertising and other operators without similar commercial advertising lose their competitive advantage to a certain extent, which would indirectly damage the interests of other operators. For other operators under such circumstances, the court did not restrict them from filing false advertising litigation and obtaining relief to order the party to stop infringement. In [2015] minshenzi No.2802 case the Supreme People's Court held that "Since the intention for application of the Anti-Unfair Competition Law is to regulate false advertising, the direct damage is not the essential element of false advertising." But in this case, no or only a little compensation might be obtained, because it is normally difficult to prove the damage caused by the infringer's false advertising.

Article 18: Those claiming that a business operator has violated the first paragraph of Article 8 of the Anti-Unfair Competition Law and requesting compensation for loss shall bear the burden of proof that they have suffered loss due to that act of false or misleading advertising.

Article 19 of the new Interpretation is a confirmation of judicial practice. About how to understand "the specific damaged party", in [2016] zuigaofaminshenzi No.2190 case the Supreme People's Court held that "the commercial subject of commercial defamation should refer to specific target, that is, the relevant public can distinguish the specific target of the defamer according to the information received, and can have a clear impression and memory of the victim", and as many operators are mentioned in the actor’s companies list related to commercial defamation, it is determined that corresponding acts constitutes commercial defamation to all the mentioned operators.

For non-specific damaged parties, this article shall not affect their access to obtain relief by reporting to the market supervision and regulation department, when meeting other conditions.

Article 19: Those claiming that a business operator has committed an act of commercial defamation as described in Article 11 of the Anti-Unfair Competition Law shall bear the burden of proof that they are the specific target of harm of that act of commercial defamation.

Literally interpreting Article 11 of the Anti-Unfair Competition Law, "a business operator shall not fabricate or disseminate any false or misleading information to harm the goodwill or reputation of the goods of a competitor", it only regulates disseminating information which is fabricated by the same person. However, this is obviously inconsistent with the legislative purpose. Disseminating false or misleading information fabricated by others will also damage the rights and interests of other operators, which shall also be culpable. In [2019] jing73minzhong No.1113 case the court held that disseminating false or misleading information fabricated by others constitutes commercial defamation, and Article 20 of the new Interpretation confirm such judicial practice.

The significance of this article is to bring the disseminating behavior into the scope of regulation, so as to avoid relevant operators from taking advantage of the limitations of commercial defamation clauses to damage competitors without liability. Due to the extremely convenient dissemination of information in the era of mobile Internet, if the commercial defamation clause only regulates the fabricator rather than the disseminator, some operators may maliciously forward and repost the defamatory remarks about their competitors without audit, and even the content platform operators can use the algorithm to recommend and disseminate the defamatory remarks about their competitors.

In addition, it should be noted that compared with Article 21 of the Draft for Comments, this article deletes the subjective requirement of "intention". It is not clear whether commercial defamation could be caused through "negligence". But in [2013] minsanzhongzi No. 5 case, the Supreme People's Court sentenced that commercial defamation could be cause through "negligence".

Article 20: Where a business operator has disseminated any false or misleading information fabricated by another person to harm the goodwill or reputation of the goods of a competitor, the people's court shall make a determination of the case under Article 11 of the Anti-Unfair Competition Law.

Article 21 of the New Interpretation is the interpretation of Article 12 Paragraph 2 Subparagraph 1 of the Anti-Unfair Competition Law which rules that "inserting a link or forcing an URL redirection in a network product or service legally provided by another business operator without the consent of that business operator" (hereinafter referred to as "Traffic Hijacking Clause"). Compared with the Anti-Unfair Competition Law, Article 21 of the New Interpretation adds the limitation of "without... user consent". In previous judicial practice, some cases, such as the [2018] jing73minchu No. 960 case held that the "forcing" in "forcing an URL redirection" only refers to the situation "without the consent of other operators", and does not require the consent of users. This Article 21 of the New Interpretation stipulates that an URL redirection does not certainly constitute the behavior regulated by the Traffic Hijacking Clause provided that only a link is inserted and the URL redirection is triggered with the consent of users, because the following factors should be considered comprehensively to determine whether traffic hijacking is constituted: (1) the specific way of link insertion; (2) whether there is a reasonable reason; (3) the influence on the interests of users and other operators and other factors. Article 21 of the New Interpretation clarifies and unifies the method to determine whether traffic hijacking is constituted.

Article 21: An URL redirection from another business operator that occurs directly to a user without the consent of that another business operator or that user shall be determined by the people's court as "forcing an URL redirection" as stated in subparagraph (1) of the second paragraph of Article 12 of the Anti-Unfair Competition Law.

If only a link is inserted and the URL redirection is triggered by the user, the people's court shall determine whether the act violates subparagraph (1) of the second paragraph of Article 12 of the Anti-Unfair Competition Law by taking into overall consideration, the specific way that the link was inserted, whether there is a justifiable reason, and the impact on the interests of the user and that another business operator, among other factors.

Article 22 of the New Interpretation is the interpretation of Article 12 Paragraph 2 Subparagraph 2 of the Anti-Unfair Competition Law which rules that "misleading, deceiving or compelling users into modifying, closing, or uninstalling a network product or service legally provided by another business operator" (the "Interfering Act Clause"). Compared with the Anti-Unfair Competition Law literally, this Article 22 of the New Interpretation have three main modifications: (1) addition of the restriction of behavior mode of "without a clear notice in advance to be user and obtaining consent from the user "; (2) addition of the subjective restriction re "maliciously"; (3) addition of the "any other means" following the three clearly listed behaviors of "modifying, closing or installing".

As for the first amendment, the main purpose of which is supposed to emphasize the user's right of knowing the truth and rights of choice. Because "misleading, deceiving or compelling users" implies the meaning of "without a clear notice in advance to be user and obtaining consent from the user". If the user agrees based on the misleading or deceptive prompt in advance, the requirement of "a clear notice in advance" cannot be satisfied. If the user is compelled, the requirement of consent from the user" cannot be satisfied.

As for the second amendment, which adds the subjective restriction re "maliciously" and raises the threshold of application of this article. If the act is carried out with non-malicious intention such as the purpose of public welfare or the purpose of protecting users, such act will not fall into the regulation scope of this article.

As for the third amendment, which expands the three acts regulated by the Interference Act Clause to other equivalent acts, and accordingly expands the scope of the acts regulated by this article. Some acts that previously could only be regulated by the specific bottom-of-the-line clause re Internet can now be regulated by the Interference Act Clause.

Article 22: Where a business operator maliciously interferes with or sabotages a network product or service legally provided by another business operator by misleading, deceiving or compelling any user into modifying, closing or installing that product or service or by any other means without a clear notice in advance to be user and obtaining consent from the user, the people’s court shall make a determination of the case under subparagraph (2) of the second paragraph of Article 12 of the Anti-Unfair Competition Law.

Article 23 of the New Interpretation is a new article. According to this Article 23 and the provisions re damages in the Anti-Unfair Competition Law, at present, all acts of unfair competition, except commercial bribery and prize-attached sales, can be subject to statutory compensation.

Paragraph 4 of Article 23 of the Anti-Unfair Competition Law rules that statutory compensation can be applied to the acts of business obfuscation and infringement of trade secrets. While the New Interpretation deletes Article 17 of the old interpretation, which stipulates that "as regards determining the damages for the unfair competition acts as stipulated in Article 5, 9 or 14 of the AUCL (Note: business obfuscation, false advertising and commercial defamation), it may be performed with reference to the methods of determining damages for infringing upon registered trademark rights. ". For one thing, the New Interpretation confirms that statutory compensation can be applied for false advertising and commercial defamation; for another thing, it has also added that several unfair competition behaviors, regulated by the general terms and the Internet specific articles, can be subject to statutory compensation. The New Interpretation confirms the consensus of judicial practice in the form of judicial interpretation.

Although there are no explicit provisions in the current Anti-Unfair Competition Law and the New Interpretation, statutory compensation should also be applicable when it comes to commercial bribery and prize-attached sales. In judicial practice, cases of commercial bribery and prize-attached sales may also have the situation that the actual loss and infringement profit cannot be determined[3]. In this case, the current law and relevant judicial interpretations have no clear provisions on how to compensate, and the statutory compensation should be considered to be applicable with reference to Paragraph 4 of Article 17 of the Anti-Unfair Competition Law.

Article 23: Where it is difficult to ascertain the actual loss suffered by a right holder due to an infringement by an act of unfair competition that falls under Article 2, 8, 11, or 12 of the Anti-Unfair Competition Law, or the proceeds derived by the infringer from that infringement, a claim made for the determination of the amount of compensation under the fourth paragraph of Article 17 of the Anti-Unfair Competition Law shall be supported by the people’s court.

Currently, punitive damages can be applicable only for the infringement of trade secrets. Article 17 Paragraph 3 of the Anti-Unfair Competition Law stipulates that "where a business operator is maliciously engaged in the infringement of trade secrets, if the circumstance is serious, the amount of compensation may be determined between one time to five times the amount determined according to the above method", that is, the Anti-Unfair Competition Law clearly stipulates that punitive damages can be applicable only for the infringement of trade secrets.

As mentioned above, the New Interpretation deletes Article 17 of the Old Interpretation, which stipulates that "as regards determining the damages for the unfair competition acts as stipulated in Article 5, 9 or 14 of the Anti-Unfair Competition Law (Note: business obfuscation, false advertising and commercial defamation), it may be performed with reference to the methods of determining damages for infringing upon registered trademark rights.". Therefore, there is no clear legal basis for the application of punitive damages for business obfuscation or other acts.

This article is a new article, which clarifies that the same infringement act can no longer obtain remedy in accordance with the Anti-Unfair Competition Law after being remedied according to the specific intellectual property laws. When answering questions from reporters on the relevant issues of the New Interpretation, the representative of the Third Civil Division of the Supreme People's Court mentioned that, this article clarified the applicable rules of laws including general provisions of the Anti-Unfair Competition Law, clauses of the intellectual property laws and the specific provisions of the Anti-Unfair Competition Law, which means, general provisions of the Anti-Unfair Competition Law shall apply only if clauses of the intellectual property laws or specific clauses of the Anti-Unfair Competition Law are not applicable. This article clarifies that if a party has obtained judicial relief for an infringement act in accordance with the special laws re intellectual property rights, such party shall not request the same infringer to bear civil liability for the same infringement act on the ground that the act constitutes unfair competition. But this article does not restrict the litigants from claiming causes of action for both e intellectual property and anti-unfair competition in the same case.

Article 24: For the same infringing act committed by the same infringing party against the same infringed party at the same time and within the same geographical scope, which has been determined by the people’s court as an infringement of a copyright, patent right, exclusive right to use a registered trademark or the like, for which the civil liability has also been determined, a claim for civil liability against the same infringing party on the grounds that such act constitutes unfair competition shall not be supported by the people’s court.

Article 25 of the new Interpretation clarifies that "change of enterprise name" shall no longer be adopted in a judgment. In current judicial practice, it is very common for courts to sentence to stop using and/or change the name of an enterprise in unfair competition cases. This article requires the court to unify the judgment as stopping the use of the name of an enterprise, which coordinates with the Provisions on the Administration of Enterprise Name Registration to promote the clarity and possibility of execution of the judgment.

Since the registration of enterprise name change is based on enterprise’s application, when enforcing the effective judgment of the court, the registration authority cannot change the name by itself, nor can it replace the executee to decide what kind of name to change into. There have been practical difficulties in the level of enforcement in the two ways of legal responsibility bearing: stopping the use of enterprise name and changing enterprise name. To solve this problem, Paragraph 2 of Article 23 of the Administrative Provisions on the Registration of Enterprise Names promulgated on March 14, 2020 stimulated that "Where a people's court or enterprise registration authority deems that an enterprise name shall no longer be used in accordance with the law, the enterprise concerned shall apply for change of registration of enterprise name within 30 days upon receipt of the legal instrument in effect issued by the people's court or the decision made by the enterprise registration authority. Prior to the change of registration, the enterprise registration authority shall replace the enterprise name with the unified social credit code. Where the enterprise fails to apply for change of registration within the aforesaid time limit, the enterprise registration authority will list the enterprise in the list of enterprises operating abnormally; once the registration of change is completed, the enterprise registration authority will remove the enterprise from the aforesaid list". Therefore, in combination with this aforesaid provision, the unified use of the judgment of "stopping the use of enterprise name" of this article of the New Interpretation has been able to better achieve the ultimate effect of stopping the infringement.

Article 25: Where according to Article 6 of the Anti-Unfair Competition Law, a claim made for an order against the defendant to cease the use of or change the name of the defendant’s enterprise shall be supported under the law, the people’s court shall grant an order to cease the use of the name of that enterprise.

The previous Anti-Unfair Competition Law and judicial interpretation did not directly stimulate the regional jurisdiction of unfair competition cases. Unfair competition falls into the scope of quasi-tort. In the past judicial practice, the general provisions of Civil Procedure Law on tort were applied, and now Paragraph 1 of Article 26 of the New Interpretation confirms such jurisdiction rule.

Paragraph 2 of Article 26 of the New Interpretation clarifies for the first time that the place of receipt of online shopping cannot be chosen as the place of infringement. At present, other special laws and judicial interpretations of intellectual property do not clarify this rule. This rule is consistent with the current judicial practice, and the Supreme People's Court has expressed the above attitude many times in cases of jurisdictional objection. For example, the Supreme People's Court first made it clear in [2016] zuigaofaminxiazhong No. 107 case, ruling that in cases of infringement of intellectual property rights and unfair competition, the parties obtain the alleged infringing products through online shopping, and the jurisdiction cannot be determined by choosing the place of receipt of online shopping as the place of infringement.

Article 26: A civil lawsuit initiated for an act of unfair competition shall be subject to the jurisdiction of the people's court of place of the infringing conduct or the place of the defendant’s domicile.

A claim made that the place of receipt of goods purchased online, which the purchaser can choose at will, should be deemed as the place of the infringing conduct, shall not be supported by the people’s court.

At present, there are no special provisions on foreign-related intellectual property jurisdiction in China, and no unified foreign-related jurisdiction norms have been formed. Article 2 of the Anti-Monopoly Law rules that "this Law is also applicable to monopolistic conduct outside of the People's Republic of China which has an effect of excluding or limiting the competition in China’s domestic market. " According to this provision, the Supreme People's Court has made it clear in [2019] zuigaofazhimin xiazhong No. 32 case that if the party brings a lawsuit due to the loss in China caused by overseas monopoly, the place where the alleged overseas monopoly has the effect of exclusion and restriction on market competition in China can be chosen as the jurisdictional connection point of the case. With reference to the principles of foreign-related jurisdiction, for acts of unfair competition occurring outside the territory, jurisdiction shall be exercised in the place where the result of infringement occurs within the territory. Antitrust law and anti-unfair competition law belong to the category of competition law, sharing the same intention to promote and protect fair competition, standardize the order of market competition, and protect the legitimate rights and interests of consumers. It is reasonable for Article 27 of the New Interpretation to refer to Article 2 of the antitrust law to rule that the court where the infringement occurred has jurisdiction.

Currently under the background of the globalization of business activities and the increasing prevalence of cross-border business competition, this article gives jurisdiction to the court of the place where the result of infringement occurs, whether or not the unfair competition occurs in China, providing a favorable environment for the operators carrying out business activities in China to protect their rights.

Article 27: Where an alleged act of unfair competition occurred outside the territory of the People's Republic of China, but the result of the infringement occurred within the territory of the People's Republic of China, a claim made that the people’s court of the place where the result of the infringement occurred should have jurisdiction over the case shall be supported by the people’s court.