China: Weishida Yulan Case (Well-Known Trademark Protection On Similar Goods, Bad Faith)

The Procter & Gamble Company


TRAB and Shantou Weishida Cosmetics Co., Ltd. 

(2016) Zui Gao Fa Xing Zai No.13

  • Keyword: Well-known trademark protection on similar goods; Bad faith
  • Relevant provisions: Article 14, Article 25 of the Provisions


The Procter & Gamble Company (P&G) has been the owner, since January 1, 1990 of the registered trademark --"玉兰" ( "Yulan" ) and July 1, 1999 of the registered trademark -- "玉兰油" ( "Yulanyou" ) in class 3 for cosmetic products, which correspond to its famous mark "Olay" in English. On May 15, 2001, a Chinese company Santou Weishida Cosmetics Co, Ltd. (Weishida) filed the trademark "威仕达玉兰" ("Weishida Yulan") for cosmetic products in class 3. The trademark was registered in 2002 but P&G only became aware of its existence in 2010.

Due to the expiration of the five-year time limit, it was too late, according to Article 41.2 of the (then current) 2001 Trademark Law, to request the invalidation of the Weishida Yulan trademark, unless P&G was able to prove that (1) P&G trademarks had become well-known (on the filing date of the disputed trademark) and (2) the disputed trademark had been filed in bad faith.

P&G adduced a substantial amount of evidence to prove that its trademarks had reached the well-known status in China when the disputed trademark was filed. However, in 2012, the TRAB dismissed P&G's application, considering that the evidence adduced were too old to prove that the cited trademarks' reputation had perdured from the 1990s to the application date of the disputed mark. P&G appealed to the Beijing No.1 Intermediate People's Court, which upheld the TRAB ruling and added that, in any event, article 13.2 of the Trademark Law did not apply to this case since this article only concerns disputed mark being applied in different or dissimilar goods.

P&G appealed to the Beijing High Court, which ruled on January 9, 2012, to uphold the first instance judgment.

P&G filed an application for retrial before the SPC and adduced additional evidence proving its reputation in the year 2000.


In its judgment of May 19, 2016, the SPC scrutinized the evidence of reputation adduced by P&G and recognized the well-known status of the cited marks. The Court further affirmed that even though Article 13.2 only refers to "different or dissimilar goods" it must be construed as referring also to "identical or similar goods" :"The legislative intents for enacting the provisions of Article 13 is to provide a stronger protection for well-known trademarks... therefore, although Article 13.2 merely stipulates the circumstance of "different or dissimilar goods", according to the natural interpretation, it shall also apply to the circumstance of "identical or similar goods".

Finally, the Court based its assessment of the bad faith not only on the circumstances existing at the date of filing, but also on the behavior of Weishida after the date of filing: "To determine whether the applicant is acting in bad faith, all relevant factors must be taken into consideration ..... The mere fact of being well-known is insufficient. The court shall consider the subjective intention, the objective behavior and all relevant factors".


The typical significances of this case are (1) Article 13.2 should also apply when the goods are identical and (2) bad faith can be proven by examining facts that take place after the date of filing of the litigious trademark

Editor's note

This case is one of the ten cases selected by the firm that are relevant to certain articles of the "Provisions of the Supreme People's Court on Several Issues Concerning the Hearing of Administrative Cases Involving the Granting and Affirmation of Trademark Rights" (the Provisions) and focused on different issues of the Trademark Law. The cases are mainly selected from the SPC's Guiding cases, Gazette cases, Annual cases, and particularly, from the cases which were released on the SPC's press conference of the Provisions.

The Gazette cases, beginning in 1985, are published in the Gazette of the Supreme People's Court of the People's Republic of China ("Gazette") which is focused on the typical or model cases.

In 2008, the SPC started to publish an annual report on IPR cases, and since then, dozens of typical or model cases have been included each year.

Since 2010, the SPC also annually announces the year's Ten Intellectual Property Right Cases and Fifty Model Cases of Intellectual Property.

As for the Guiding cases, unlike the Gazette cases, annual cases or other model or typical cases, the Guiding cases are the first kind of cases that are given clear authority, and, they are subject to a particular selection and adoption process, much like judicial interpretations. In adjudicating similar cases, courts are required to consult Guiding cases.

During the press conference held on January 11, 2017, for the presentation of the Provisions, the SPC released several cases related to the Provisions, among which, the "Qiaodan case", the "007 BOND case" and the "Haitang Bay case".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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