Guidelines of the High Court of Tianjin Municipality on the Adjudication of Cases of Trademark Infringement Disputes

 2018-06-17  24



  • Area of Law Trademark
  • Level of Authority Local Judicial Documents
  • Date issued03-07-2016
  • Effective Date03-07-2016
  • Status Effective
  • Issuing Authority Other Institutions of Tianjin Municipality



Notice of the Higher People's Court of Beijing Municipality on Formulating and Issuing the Guidelines of the High People's Court of Tianjin Municipality on the Adjudication of Cases of Trademark Infringement Disputes
March 7, 2016
To cope with the ever-increasing cases involving trademark infringement disputes, further improve the trial of the cases involving trademark infringement disputes, raise the level of such trials, advance the work of the judicial standardization, and in particular, to clarify the mind for the trial of the cases involving trademark infringement disputes and summarize the methods for the judgement on the trademark infringements, the Higher People's Court of Tianjin Municipality, after the discussion and adoption by the judicial committee, formulated and distributed the Guidelines on the Adjudication of Cases of Trademark Infringement Disputes. The Guidelines lay down detailed provisions on the mind for the trial, the litigation eligibility status of plaintiffs, the boundary and state of the right to the trademark, the judgement on the trademark infringements, the acts that infringe upon the trademark, the conflict of rights concerning commercial logos, defenses, civil liabilities and well-known trademarks, among others, which are conducive to the unification of the standards for the adjudication of cases of the same kind. (annex: Guidelines on the Adjudication of Cases of Trademark Infringement Disputes)
Guidelines of the High People's Court of Tianjin Municipality on the Adjudication of Cases of Trademark Infringement Disputes
Text
1. Lines of thinking in adjudicating a case
(1) To examine the eligibility of the plaintiff to file the action;
(2) To examine the contents of the right to exclusive use of the registered trademark as involved in the case at hand;
(3) To examine the visibility and usage of the registered trademark involved in the case at hand;
(4) To examine whether the defendant has committed infringing acts;
(5) To examine whether the defendant's grounds for defense are established; and
(6) To determine the defendant's liability for infringement.
2. Eligibility of a plaintiff to file an action
The plaintiffs eligible to file a case of trademark infringement disputes shall include the registrant of the relevant trademark, interested parties, and the transferee to the relevant trademark transfer contract.
a. Trademark registrant
A trademark registrant shall refer to the right holder as recorded on a trademark registration certificate.
b. Interested parties
Interested parties shall include the licensees under a registered trademark licensing contract, the lawful successors to the property rights of a registered trademark, etc. In the event of infringement upon the right to exclusive use of a registered trademark, the licensee under a sole licensing contract (under which the licensor concerned is also not allowed to use the registered trademark) may bring a lawsuit to the competent people's court; the licensee under an exclusive licensing contract may bring a lawsuit jointly with the trademark registrant, and may bring a lawsuit independently if the trademark registrant decides not to file a lawsuit; and, the licensee under a general licensing contract may file a lawsuit with express authorization by the trademark registrant.
c. Transferee to a trademark transfer contract
To transfer a registered trademark, the transferor and the transferee concerned shall sign a transfer agreement and jointly apply to the Trademark Office. After the transfer of the registered trademark is approved and announced, the transferee shall be entitled to the right to exclusive use of the registered trademark with effect from the date of announcement. Where the alleged infringing acts last until after the date of announcement on the approval of the transfer of the registered trademark, the transferee shall be entitled to bring a lawsuit to the competent people's court against the alleged infringing acts that are committed after the date of announcement.
3. Scope and status of trademark rights
(1) Scope of rights
The right to exclusive use of registered trademarks shall mean that the right holder of a registered trademark shall be entitled to use a trademark registered upon approval on approved goods, and to prohibit others from using the same or similar trademarks on the same or similar goods without licensing as well as from committing other acts of infringing upon the rights of the registered trademark.
(2) Status of rights
a. The protected symbol of a registered trademark shall be subject to the trademark symbol specified on the relevant trademark registration certificate;
b. The categories of approved goods shall be subject to the categories and items specified on the relevant trademark registration certificate; and
c. A protected registered trademark shall be within its validity period, and the trademark registrant and interested parties shall provide the relevant trademark registration certificate and renewal certificate.
4. Determining whether trademark infringement is constituted
In determining whether trademark infringement is constituted, a people's court shall generally focus on examining whether the use of the alleged infringing mark constitutes the use of a trademark, whether a mark the same as or similar to a registered trademark symbol is used on goods or services the same as or similar to those for which the use of the registered trademark is approved, and whether the relevant public may be easily confused.
(1) Determining whether the use of a trademark is constituted
Trademark use shall refer to the activities whereby a trademark is used on goods, the packaging or containers and transaction instruments of goods, or a trademark is used for advertising campaigns, during exhibitions and in other commercial activities, for the purpose of identifying the sources of goods.
a. The use of a trademark for goods shall include:
(a) Using a trademark on goods, and the packaging or containers and transaction instruments of goods;
(b) Using a trademark for advertising campaigns and during exhibitions;
(c) Using a trademark on newspapers, magazines, television, the Internet and other media, for the purpose of identifying the sources of goods; and
(d) Making other use of a trademark to identify the sources of goods.
b. The use of a service mark shall include:
(a) Indicating a service mark within and outside service premises;
(b) Indicating a service mark on the items used for the purpose of providing services;
(c) Indicating a service mark on the documents and materials related to services;
(d) Indicating a service mark on newspapers, magazines, television, the Internet and other media; and
(e) Indicating a service mark during other commercial activities.
(2) Determining whether the same or similar goods or services are involved
a. The same goods or services shall mean that the categories of goods or services for which the use of a registered trademark is approved are the same as the categories of goods or services on which the alleged infringing mark is used.
b. Similar goods shall refer to the goods that are the same as each other in terms of functions, purposes, production departments, sales channels, targeted consumers, etc., or goods for which the relevant public generally considers as having a specific link.
Similar services shall refer to the services that are the same as each other in terms of purposes, contents, methods, recipients, etc., or services for which the relevant public generally considers as having a specific link.
Similar goods and services shall mean that there is a specific link between the goods and the services.
c. Methods to determine whether similar goods or services are involved
In judging whether the goods or services involved are similar, a people's court shall comprehensively judge whether the goods or services have a specific link based on the general level of awareness of the relevant public of the goods or services at the time of infringement and from the perspectives of the functions, purposes, production departments, sales channels and targeted consumers of the goods, the purposes, contents, methods and recipients of the services and other relevant factors. The International Classification of Goods and Services for the Purposes of the Registration of Marks and the Distinction Table for Similar Goods and Services may be relied upon as references in judging whether similar goods or services are involved.
(3) Determining whether trademark symbols are the same or similar
a. The same trademark symbols
Where the trademark symbols concerned are the same as each other, it shall mean that when an alleged infringing trademark symbol is compared against the symbol of a registered trademark, both symbols basically have no difference in terms of visual effect.
Where the text trademark symbols concerned are the same, it shall mean that the languages used in the two trademark symbols are the same, and that the composition and order of the texts in the two trademark symbols are identical, or the font, capitalization or text arrangement of the texts in the two trademark symbols make them only differ slightly.
Where the graphic trademark symbols concerned are the same, it shall mean that the graphics of the two trademark symbols basically have no difference in terms of visual effect.
Where the combination trademark symbols concerned are the same, it shall mean that the composition of texts, the outer appearance of graphics and their arrangements and combinations in the two trademark symbols are the same, as a result of which the two trademark symbols basically have no difference in terms of call signs and overall visual effect.
b. Similar trademark symbols
Where the trademark symbols concerned are similar, it shall mean that when an alleged infringing trademark symbol is compared against the symbol of a registered trademark, their overall structures have no substantive difference in terms of the font, pronunciations and meanings of texts, or the composition and color of graphics, or the combination of their various elements, or their three-dimensional shapes or color combinations are similar.
c. Determining whether trademark symbols are the same or similar
(a) Parties to make such judgment
The relevant public shall refer to the consumers who are related to the goods or services on which the symbol of a registered trademark is used and business operators that are closely related to the marketing of the aforesaid goods or services.
(b) Criteria adopted in making such judgment
In judging whether two trademark symbols are the same as or similar to each other, the ordinary attention of the relevant public shall be adopted as the criterion. Ordinary attention shall refer to the usual, ordinary and general attention of the majority of the relevant public.
(c) Methods for making such judgment
In judging whether two trademark symbols are the same as or similar to each other, it is imperative to make an overall comparison of the trademark symbols and a comparison of the main parts of the trademark symbols under the conditions where the objects under comparison are isolated from each other.
Isolated comparison, also known as isolated observation and comparison, shall mean that the symbol of a registered trademark and the symbol of an alleged infringing trademark are placed in different locations for observation and comparison at different times. Isolated comparison is a basic comparison method, and shall be adopted for both overall comparison and comparison of main parts.
Overall comparison, also known as overall observation and comparison, shall mean that a trademark symbol is observed as a whole rather than having its individual constituent elements compared separately.
Comparison of main parts, also known as the observation and comparison of main parts, shall mean that the parts of a trademark symbol that play a major role in identification are singled out for focused comparison and contrast. Comparison of main parts complements overall comparison.
(d) Judging similarity
Judging the similarity of text trademark symbols
In judging the similarity of text trademark symbols, the pronunciations and meanings of the texts and the outer appearance of the shapes formed by the texts shall be taken as constituent elements for overall comparison.
Under any of the following circumstances, two text trademark symbols may generally be considered as similar to each other:
A. The fonts used for the texts are similar, and the pronunciations of the texts are the same or similar;
B. The texts are the same in composition, and only differ in terms of font, pronunciation or the order of arrangement;
C. The texts consist of three or more Chinese characters arranged in the same order, and the texts have no overall meaning or no significant difference in meaning, apart from the differences in individual Chinese characters;
D. The meanings of the texts are the same or similar;
E. The texts are formed by simply repeating certain words or phrases;
F. Compared to the text of the registered trademark, only information indicating the quality, main raw materials, functions, purposes, weight, quantity or other characteristics or production, sales or use premises of the goods, or the generic names and models of the approved goods are added to the text of the alleged infringing trademark symbol; or
G. Compared to the text of the registered trademark, only texts with weaker distinctiveness are added to or deleted from the alleged infringing trademark symbol, and the main parts with stronger distinctiveness are the same or similar.
Judging the similarity of graphic trademark symbols
In judging the similarity of graphic trademark symbols, it is imperative to make an overall comparison by taking the outer appearance of the graphics as a constituent element. The comparison of the outer appearance of graphics shall be conducted from the composition and design of the graphics, and the two graphic trademark symbols generally may be determined as similar if there is no substantive difference in their overall visual effects.
Under any of the following circumstances, two graphic trademark symbols may generally be considered as similar to each other:
A. The composition and overall outer appearance of the graphics are not substantively different in terms of visual effect, thus constituting similarity; or
B. The graphic trademark symbols contain the entirety of graphic trademarks of a certain visibility or strong distinctiveness.
Judging the similarity of combination trademark symbols
In judging the similarity of combination trademark symbols, it is imperative to take two or more elements of the texts, graphics, alphabetic letters, numerals, three-dimensional marks or color combinations that comprise the trademark symbols as a whole for comparison during which attention shall be paid not only to overall observation but also various individual components. Combination trademark symbols may generally be considered as similar to each other if the overall visual effect observed has no substantive difference.
(4) Determining whether confusion is constituted
a. The likelihood of causing confusion
Pursuant to Item (2) of Article 57 of the Trademark Law, using a trademark symbol that is similar to a registered trademark symbol on the same goods, or using a trademark symbol that is the same as or similar to the registered trademark symbol on similar goods, without the licensing of the registrant of the registered trademark, which is likely to cause confusion, shall constitute infringement on the right to exclusive use of the registered trademark.
"Likely to cause confusion" shall refer to the likelihood of causing confusion rather than actual confusion. It shall mean that the relevant public is likely to misidentify the sources of the goods or wrongly believe that the sources of the goods have a specific link to the goods bearing the plaintiff's registered trademark, including confusion of sources and confusion of affiliation.
Confusion of sources shall mean that a defendant uses a trademark symbol the same as or similar to the plaintiff's registered trademark on the same or similar goods or services, which is sufficient to make the relevant public believe that such goods or services are from the goods or services identified by the plaintiff's registered trademark.
Confusion of affiliation shall mean that a defendant uses a trademark symbol the same as or similar to the plaintiff's registered trademark on the same or similar goods or services, which is sufficient to make the relevant public believe that the defendant and the plaintiff have a close commercial relationship.
b. Methods for making such judgment
The following factors may be considered in judging whether confusion is caused between a registered trademark and an alleged infringing trademark:
(a) The distinctiveness and visibility of the registered trademark;
(b) The subjective intent of the alleged infringer;
(c) The functions, purposes, prices, quality, etc. of the goods involved in the case at hand;
(d) The situations on the actual use of the alleged infringing trademark symbol;
(e) Evidence of actual confusion; and
(f) Other circumstances likely to cause confusion.
5. Acts of trademark infringement
(1) Using a trademark that is the same as a registered trademark on the same goods without the licensing of the registrant of the registered trademark;
(2) Using a trademark that is similar to a registered trademark on the same goods, or using a trademark that is the same as or similar to the registered trademark on similar goods, without the licensing of the registrant of the registered trademark, which is likely to cause confusion;
(3) Changing a registered trademark without the consent of the registrant of the registered trademark, and putting the goods bearing the changed trademark into the market again;
(4) Using texts that are the same as or similar to another party's registered trademark as an enterprise trade name on the same or similar goods in an eye-catching manner, which is likely to cause misidentification by the relevant public;
(5) Reproducing, imitating or translating the well-known trademark registered by another party or the main parts thereof for use as a trademark on goods that are not the same as or similar to the goods approved for the well-known trademark to mislead the public, resulting in possible damage to the interest of the registrant of the well-known trademark;
(6) Registering texts that are the same as or similar to another party's registered trademark as a domain name, and engaging in the e-commerce of the transaction of relevant goods via the domain name, which is likely to cause misidentification by the relevant public;
(7) Selling goods that infringe upon others' rights to exclusive use of registered trademarks;
(8) Forging or engaging in unauthorized manufacturing of another party's registered trademark symbol, or selling registered trademark symbols that are forged or manufactured without authorization; and
(9) Intentionally providing convenience for infringement on others' rights to exclusive use of trademarks to help others commit infringement on the rights to exclusive use of trademarks. The provision of warehousing services, transportation, mailing services, printing services, concealment, business premises, online product transaction platforms, etc. for infringement upon others' rights to exclusive use of trademarks shall belong to the provision of convenience.
6. Conflict of rights for commercial identifiers
Commercial identifiers shall refer to identifiers that are capable of identifying or distinguishing goods, business parties or business operations during commercial activities, including trademarks, trade names and domain names.
(1) Basic principles for resolving conflict of rights for commercial identifiers:
a. The principle of good faith;
b. The principle of protecting prior rights; and
c. The principle of preventing market confusion.
(2) Conflict between the right to exclusive use of registered trademarks and the right of enterprise names
a. Using texts that are the same as or similar to another party's registered trademark as an enterprise trade name on the same or similar goods or services in an eye-catching manner, which is likely to cause misidentification by the relevant public, shall belong to acts that infringe upon the right to exclusive use of the registered trademark.
b. Using another party's registered trademark or unregistered well-known trademark as the trade name in an enterprise name to mislead the public shall be dealt with pursuant to the Anti-unfair Competition Law if such use constitutes acts of unfair competition.
(3) Conflict between the right to exclusive use of registered trademarks and domain names
Registering texts that are the same as or similar to another party's registered trademark as a domain name, and engaging in the e-commerce of the transaction of relevant goods via the domain name, which is likely to cause misidentification by the relevant public, shall belong to acts that infringe upon the right to exclusive use of the registered trademark.
(4) Conflict of rights caused by historical reasons
As regards a case of conflict between a registered trademark and an enterprise name that involves a specific historical background, the relevant people's court shall make a fair and reasonable judgment based on the specific circumstances of the case, by taking into comprehensive consideration the history of the formation of the trademark and the enterprise name, the reasons that give rise to the conflict, the contribution respectively made by the parties concerned to the trademark and the enterprise name, the subjective intent in using the trademark and the enterprise name and the actual conditions of use, and other factors, and according to the principle of good faith, the principle of protecting prior rights and the principle of preventing market confusion.
7. Grounds for defense
(1) Defense on the ground of fair use
a. The holder of the right to exclusive use of a registered trademark shall not be entitled to prohibit others from fair use of the generic names, graphics or models of a product, or information directly indicating the quality, main raw materials, functions, purposes, weight, quantity or other features of the product, or the names of geographical locations as contained in the registered trademark.
b. The holder of the right to exclusive use of a registered trademark that is a three-dimensional symbol shall not be entitled to prohibit others from fair use of the forms shaped by the inherent nature of a product, product forms necessary for achieving technological effects or forms that bring substantive value to the product as contained in the registered trademark.
c. Where before a trademark registrant applies for registration of the relevant trademark, another party has used ahead of the trademark registrant a trademark that is of certain influence and is the same as or similar to the registered trademark on the same or similar goods, the holder of the right to exclusive use of the registered trademark shall not be entitled to prohibit the said party from continuing to use the trademark within the original scope of use, but may require the latter to add suitable identifiers for distinguishing purposes.
(2) Grounds for defense of non-compensation for infringement
a. Defense on the ground that a registered trademark is not used
Where the holder of the right to exclusive use of a registered trademark claims for compensation, and the alleged infringer raises defense that the said holder has never used the registered trademark, the relevant people's court may require the right holder to furnish evidence of its actual use of the registered trademark during the three years prior to the lawsuit. The alleged infringer shall not be liable for compensation if the said right holder is neither able to prove its actual use of the registered trademark during the three years prior to the lawsuit, nor able to prove other losses suffered as a result of the infringement.
b. Defense on the ground of legitimate sources
A party that unknowingly sells goods that infringe upon another party's right to exclusive use of a registered trademark is not liable for compensation if the party can prove that it has obtained the goods by legitimate means and is able to provide information on the suppliers of the goods.
Conditions to substantiate a seller's defense on the ground of legitimate sources are as follows:
(a) In determining whether the seller knows that the goods it sells infringe upon the right to exclusive use of a registered trademark, the following factors may be considered:
The visibility of the registered trademark;
The business scale of the seller; and
The purchase and selling prices of the goods under sales.
(b) In determining whether the seller has obtained the goods by legitimate means, the following factors may be considered:
There are purchase contracts signed by and between the seller and the suppliers, and such contracts have been verified upon investigation as to have been truthfully performed;
There are legitimate purchase invoices, and the matters recorded on the invoices correspond to the goods involved in the case at hand;
There are lists of supply of goods and payment receipts stamped with the legitimate signatures and seals of the suppliers, and such lists and receipts have been verified as true or acknowledged by the suppliers;
The goods are obtained with reasonable consideration; and
There are other circumstances that serve to prove that the goods involved in the case at hand are obtained by legitimate means.
(c) Providing information on the suppliers of the goods
The seller shall explain the name or enterprise name, address, contact details and other verifiable information of each supplier involved.
8. Civil liabilities
In adjudicating a case of disputes over infringement upon the right to exclusive use of registered trademarks, the competent people's court may, pursuant to the law and according to the actual circumstances of the case at hand, render a judgment to order the infringer to bear civil liabilities such as ceasing infringement, compensating for losses, eliminating ill effects, etc., and may also make decisions on civil sanctions such as imposing fines, confiscating infringing goods, forged trademark symbols, and the materials, tools, equipment and other assets specifically for the production of infringing goods, etc. The amount of fines may be determined by reference to the Implementing Regulations of the Trademark Law of the People's Republic of China.
(1) Ceasing infringement
a. Under normal circumstances, a people's court shall render a judgment to order the infringer to bear the liability for ceasing infringement in the following specific forms:
(a) To cease acts that infringe upon the plaintiff's right to exclusive use of the registered trademark concerned; and
(b) If infringement is constituted as a result of the prominent use of a registered trademark in an enterprise name, and a judgment ordering the infringer to standardize its use of enterprise names is sufficient to stop the infringement, the people's court may render a judgment that the infringer may not use the registered trademark in an eye-catching manner or that the infringer shall standardize its use of enterprise names.
b. Exceptions
If a judgment ordering the infringer to cease infringement will undermine public interests or cause major imbalance of interests between the parties concerned, or if such a judgment, even if rendered, is unenforceable in practice, the competent people's court may decide not to render a judgment on ceasing infringement, and instead appropriately increase the amount of civil compensation.
(2) Compensating for losses
Pursuant to Paragraph 1 of Article 63 of the Trademark Law, the amount of compensation for infringement on the right to exclusive use of a trademark shall be determined according to the actual loss suffered by the right holder as a result of the infringement, or may be determined according to the profits gained by the infringer from the infringement if the actual loss is difficult to determine, or may be reasonably determined by reference to the multiples of the trademark royalties if both the loss of the right holder and the gains of the infringer are difficult to determine. Where an infringer maliciously infringes upon another party's right to exclusive use of a trademark and falls under grave circumstances, the amount of compensation may be determined as not less than one time but not more than three times the amount calculated according to the foregoing methods. The amount of compensation shall include the reasonable expenses incurred by the right holder for stopping the infringement.
a. The amount of loss suffered by the right holder
The amount of loss suffered by the right holder may be calculated according to the product of the sales volume of the goods bearing the registered trademark that is reduced as a result of the infringement or the sales volume of the infringing goods and the unit profit of the goods bearing the registered trademark.
b. The amount of profits gained by the infringer
The amount of profits gained by the infringer may be calculated according to the product of the sales volume of the infringing goods and the unit profit thereof. Where the unit profit of infringing products cannot be ascertained, the unit profit of the goods bearing the registered trademark shall be adopted in calculation.
c. Determining the amount of royalties of the registered trademark
The amount of royalties of the registered trademark may be determined according to the amount of royalties recorded in the trademark licensing contract submitted by the plaintiff that has been record-filed with and announced by the Trademark Office.
d. Punitive damages
Where the infringer maliciously infringes upon the plaintiff's right to exclusive use of a trademark and falls under grave circumstances, the amount of compensation may be determined as not less than one time but not more than three times the amount determined according to the methods for calculating the amount of loss suffered by the right holder or the amount of profits gained by the infringer as a result of the infringement.
e. Statutory damages
Where the actual loss suffered by the right holder as a result of the infringement, the profits gained by the infringer from the infringement and the royalties of the registered trademark are all difficult to determine, the people's court may apply the principle of statutory damages, and render a judgment on awarding compensation of up to RMB three million to the plaintiff depending on the circumstances of the infringing acts.
To apply the principle of statutory damages, the people's court shall consider the following factors:
(a) The nature, duration and consequences of the infringing acts;
(b) The reputation of the trademark;
(c) The amount of royalties of the trademark;
(d) The type, period and scope of trademark licensing; and
(e) The amount of reasonable expenses incurred for stopping the infringement.
After the people's court has determined the amount of statutory damages, if the parties concerned reach a mediation agreement in accordance with the provisions on the amount of statutory damages, the mediation agreement shall be upheld.
f. Reasonable expenses
Reasonable expenses incurred for stopping infringement shall include:
(a) Notarization fees;
(b) Expenses for investigation and evidence collection, including file search fees and fees for printing written materials;
(c) Transportation fees, accommodation fees, fees for meals, etc.;
(d) Translation fees; and
(e) Reasonable lawyers' fees.
g. Applying the principle of statutory damages if the infringer obstructs the provision of evidence
Where the right holder has duly discharged its obligation of burden of proof, but the account books and materials related to the infringing acts are mainly controlled by the infringer, the relevant people's court may, for the purpose of determining the amount of compensation, order the infringer to submit account books and materials related to the infringing acts. Where the infringer fails to provide such account books and materials or provides false account books and materials, the people's court may, at its discretion, render a judgment on the amount of compensation by reference to the claims of the right holder and the evidence furnished thereby.
9. Well-known trademarks
The holder of a trademark that is well known to the relevant public may request for protection of the trademark as a well-known trademark in accordance with the Trademark Law if it is of the opinion that its rights have been infringed upon.
(1) Principles of protection
Where a trademark that is a reproduction, imitation or translation of another party's well-known trademark already registered in China is under registration application for being used on goods that are not the same as or not similar to the goods approved for the well-known trademark, the registration of the trademark shall not be approved and its use shall be prohibited if it misleads the public and will result in possible damage to the interests of the registrant of the well-known trademark.
Where a trademark that is a reproduction, imitation or translation of another party's well-known trademark not yet registered in China is under registration application for being used on goods that are the same as or similar to the goods approved for the well-known trademark, the registration of the trademark shall not be approved and its use shall be prohibited if it is likely to cause confusion.
(2) Principles for recognition
a. The principle of passive recognition;
b. The principle of recognition on a case-by-case basis;
c. The principle of de facto recognition; and
d. The principle of recognition based on actual needs.
(3) Where a party concerned claims that its trademark is well-known during the adjudication of a case, the party may, depending on the specific circumstances of the case, take into consideration the following factors to prove that its trademark has been well known to the relevant public when the alleged acts of trademark infringement or unfair competition occur:
(a) The market share, geographical regions of sales, profits and tax revenue, etc. of the goods bearing the trademark;
(b) The duration of continuous use of the trademark;
(c) The ways, duration, extent, fund investment and geographical scope of the publicity or promotional activities of the trademark;
(d) The records of the trademark previously being protected as a well-known trademark;
(e) The market reputation enjoyed by the trademark; and
(f) Other factors that serve to prove that the trademark has been well known to the relevant public.