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The definition of a well－known trademark has varied over time under Chinese statutes． To be more specific，the conceptualization of well－known trademark has been refined several times between 1996 and 2013．Its variation during this period shows how Chinese legislators and other competent authorities understand this concept and protect it． For example，the abuse and misunderstanding of the concept of well－known trademarks in China directly influenced the defining criteria for well－known trademarks in China， [1] and vice versa．It is therefore necessary for this book to demonstrate and evaluate these definitions．The evaluation will then suggest that with continuous refinement，China has now developed a relatively perfect ‘well－known trademark'definition，although some problems remain．
The State Administration for Industry and Commerce's（hereinafter referred to as‘SAIC’）
‘Provisional Provisions on the Determination and Management of Well－known Trademarks’（hereinafter referred to as‘Provisional Provisions’）was the first administrative regulation specially directed to well－known trademark issues．
Although being criticised for providing insufficient protection and being inconsistent with international norms，it offers the first definition of a well－known trademark under Chinese regulations．It defines a well－known trademark as a
registered trademark
that has a higher reputation
in the
market
and is
well known
by the relevant public．
While this was the first legal definition of a well－known trademark provided by a Chinese authority，it is defective in four respects．
Firstly，the scope of a well－known trademark was confined to registered trademarks and unregistered trademarks were excluded，which constituted a breach of international IP treaties such as the Paris Convention which provides that the trademark must be well known in the country in which registration is opposed or protection is sought regardless of the status of trademark registration． [2]
Secondly，the irrationality of the definition in the Provisional Provisions became even more apparent in 1999 when the Joint Recommendation was adopted by WIPO．
Although the Joint Recommendation does not define what is meant by a well－known trademark，it does prohibit Member States from imposing certain requirements as a condition for well－known trademarks．In particular，art．2（3）（a）explicitly specifies that，
A Member State
shall not
require，as a condition for determining whether a mark is well－known mark：（i）that the mark has been
used
in，or that the mark has been
registered
or that an application for registration of the mark has been filed
in
or in respect of，
the MemberState
．．．
（emphasis added）
The annex of the Joint Recommendation（‘Explanatory Notes’）further clarifies that‘［p］aragraph （3）（a）sets out certain conditions whose fulfilment
cannot be
required
as a condition for determining whether a mark is well known．’
（emphasis added） Therefore，the status of registration/utilization of a trademark should not determine whether such a trademark is a well－known trademark．
Thirdly，it is unclear whether the ‘market'denotes‘Chinese market'only or is more widespread．Even if confined to the domestic market，it is hard to judge how wide this market is or should be．
Finally，the weakness of the definition is even more evident in light of the fact that the prime purpose for establishing a well－known trademark system in China was to prohibit malicious registration and utilization of unregistered well－known trademarks． [3] In conclusion，it is clear that unregistered well－known trademarks must be granted protection under the terms of the Paris Convention and the Joint Recommendation and it follows that the definition under the Provisional Provisions did not comply with these obligations． [4]
The SAIC enacts the‘Provisions on the Determination and Protection of Well－known Trademarks’（hereinafter referred to as‘2003 Provisions’）in order to deal with the inadequate definition stipulated in the Provisional Provisions．Accordingly，a well－known trademark is‘a mark that is
widely known
to the relevant sectors of the public and enjoys
a
relatively high reputation in China
’．
（emphasis added）The new definition seems more promising than its predecessor，though is still unsatisfactory．
Firstly，not only registered，but also unregistered trademarks fall into scope of subjects as regards well－known trademarks．Not only will this have a positive effect in prohibiting trademark infringements but the new definition mirrors international obligations concerning well－known trademarks under the Paris Convention and the TRIPS Agreement．
Secondly，the definition under the 2003 Provisions requires a well－known trademark to be‘widely known'to the relevant public．‘Widely known'emphasises the horizontal dimension of knowledge（breadth）in contrast to‘well known'which implies depth of knowledge．‘Breadth'is arguably more important than‘depth'in understanding the nature of a well－known trademark．
[5]
However，one flaw in this definition is its reference to a‘relatively high reputation'which has misled people to believe that a well－known trademark is an honourable title． [6] More details about this misunderstanding will be discussed in Chapter 4．
In conclusion，under the 2003 Provisions，well－known trademarks are not limited to registered trademarks．Instead，those trademarks not registered in China can also be examined and recognised as well－known trademarks by competent authorities．This is consistent with the thrust of not only Chinese Trademark Law （2001）but also international treaties such as the Paris Convention and TRIPS Agreement．However，it is still problematic as its emphasis on ‘relatively high reputation'has misled people to believe that a well－known trademark represents an honourable title and therefore contributes to the misunderstanding of well－known trademarks in China．
The Supreme People's Court（hereinafter referred to as‘SPC’）
promulgated the ‘Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law to the Trial of Cases of Civil Disputes over the Protection of Well－Known Trademarks'in 2009（hereinafter referred to as‘2009 Judicial Interpretation’）．
Since 2001 the SPC has made considerable efforts to address and rectify problems related to well－known trademark recognition and protection through the issuance of judicial interpretations．However，notwithstanding the various interpretations issued by the SPC，the well－known trademark system in China remains imperfect and is open to abuse．Not only the general public，but also those in the legal profession misunderstand the concept of well－known trademarks．
It was against this background that the 2009 Judicial Interpretation was issued．The definition provided by the 2009 Judicial Interpretation marks an improvement with some limitations．
With regard to the definition，art．1 of the 2009 Judicial Interpretation provides that a well－known trademark should be a trademark
widely known
by
the relevant public in China
．
Accordingly，a trademark may be determined as‘well－known'as long as it is widely known by the relevant public in China regardless of the level of reputation．
[7]
This definition provided in the 2009 Judicial Interpretation is markedly different from the ones in the Provisional Provisions and 2003 Provisions．
In particular，a significant difference between the 2003 Provisions and the 2009 Judicial Interpretation lies in the fact that the term ‘
Arelatively
highreputation
’in the 2003 Provisions is not found in the 2009 Judicial Interpretation．
There has been some argument over how far‘reputation'should be relevant in defining whether a trademark is a‘well－known'one．Some scholars have argued for many reasons the reputation of a trademark should not be excessively stressed．
[8]
The new definition seems to be supportive of this view．However this does not mean that a well－known trademark can be recognised lack of any evidence of reputation．For example，art．5 of the 2009 Judicial Interpretation provides a list of relevant evidence that the People's Courts shall use to determine whether a trademark has become well known at the time of occurrence of the trademark infringements．Art．5（2） explicitly stipulates that ‘the market reputation of the trademark’，amongst other factors，should be considered．
In other words，a proof of market reputation stands，along with other factors，to supplement the process of examination．
[9]
On the other hand，if a trademark has a reputation and this reputation is not as‘high'as others in the minds of the relevant public，it may still pass a well－known trademark examination if it nevertheless satisfies the other conditions in art．5 of the 2009 Judicial Interpretation．
[10]
This is because a trademark's market reputation may vary depending on different locations，periods，marketing strategies，demographics，etc．Therefore，when conducting well－known trademark examinations，although the People's Courts should pay attention to the reputation issue，it is important that this element is not either overestimated or underestimated．Instead，an overall consideration taking account of all the relevant evidence indicated in art．5 of the 2009 Judicial Interpretation should be given．
In conclusion，the new definition in the 2009 Judicial Interpretation is an improvement and a high reputation should be considered as an
optional
factor in deciding whether a trademark is well known．
[11]
Besides，this new definition may，to some degree，help to ease the misunderstanding of well－known trademarks in eyes of Chinese consumers and alleviate malicious litigation/filings for the ‘well－known trademark'status，
as now it is unnecessary for a well－known trademark to emphasise its fame in the relevant public．However，its effect in preventing malicious litigation remains to be seen．More discussions about malicious litigation see Chapter 4．
The Trademark Law 2013 version（hereinafter referred to as‘TML 2013’）adopts a relatively different understanding regarding the definition of a well－known trademark from previous versions．Art．13 provides that ‘［a］holder of a trademark that is
wellknown by the relevant public
may request for protection of the trademark as a well－known trademark in accordance with this law if the holder is of the opinion that its rights have been infringed upon’．
（emphasis added）It shows some significant features and arguably an improvement．
There are three notable features of this definition．Firstly，art．13 seems to eliminate regional restrictions imposed on well－known trademarks（i．e．‘in China’）．Secondly，it differs from the 2003 Provisions and the 2009 Judicial Interpretation but is consistent with 1996 Provisional Provisions
in that a well－known trademark here is a trademark‘well known'rather than‘widely known'by the relevant public．Thirdly，art．13 of the TML 2013 does not request a trademark to reach a certain level of market reputation as a precondition for examination．
Some commentators have suggested that the definition of a well－known trademark in the TML 2013 is more consistent with the spirit of art．6
bis
of the Paris Convention．
[12]
However，this may be a premature conclusion given there are still some uncertainties regarding art．13．For instance，1）Art．13 does not explicitly demand a well－known trademark be well known
in China
．This raises the question：“Does this mean that there is now
no regional restriction at
all
when defining ‘relevant public’？2）If the answer is no and there indeed still has some regional restriction，then why did the legislators choose to remove the term ‘
in China
’？
3）How to distinguish between a trademark
widely
known
and a trademark
well known
by the relevant public？4）If there is a clear distinction between them，then how do these differences influence well－known trademark recognition in practice？5）Finally，why did the legislators adopt a different definition from that in the 2009 Judicial Interpretation？Answers to these questions remain uncertain as yet．
Table 2 The definition of a well－known trademark in China（1996—2013）
（Continued）
[1] Yanfang Wang，‘The Application of New Trademark Law in Civil Cases’（2013）11 IntellectualProperty 33，34．
[2] Art．6 bis ，Paris Convention．
[3] Xiuping Ou and Xinxing Luo，‘Thrust and Foundation of Judicial Protection of Well－Known Trademarks’（2008）13 People ’ s Judicature 37，37；Shuai Weng，‘Recognition and Protection of Unregistered Well－Known Trademarks’（2011）2 Guide to Business 162，103；Xinhua Wu，‘The First Case in Regards to Unregistered Well－Known Trademark Recognition and Protection—An Analysis of Trademark‘Hui Er Kang’Case’（2007）7 China Trademark 65，66．
[4] Zhongqi Zhou， ‘Boundary of Rights of Well－Known Trademark Holders’（2009）6 China Trademark 42，44．（The author argued as a general principle，China offered protection to registered trademarks．However，unregistered trademarks could also obtain limited protection as an exception）．
[5] Project Group of the IP Tribunal of the Beijing Municipal No．1 Intermediate People's Court， ‘Nature and Criteria of Judicial Recognition of Well－Known Trademark’（2007）12 China Trademark 4，5；However，the latest version of Chinese Trademark Law—the TML 2013—seems to disagree with this idea and prefers the existing definition designated in the Provisional Provisions．But the reasons of the oscillation are not given and seem to be largely ignored by legislators．
[6] Min Qian，‘A Study on Well－Known Trademark Protection through Newly Adopted Judicial Interpretations’（2010）6 China Trademark 22，25；a comparison concerning the definition of well－known trademark in legal documents，see Table 2．
[7] Ibid ．
[8] Yin Dong，‘The Effect of Market Reputation on Recognition of Well－Known Trademarks’（2011）9 （8） Journal of Huaihai Institute of Technology （Social Forum，Social Science Edition）64，65．（Dong suggested that the degree of‘reputation'had no relevance to the degree of‘well known'in the relevant public．The degree of ‘reputation'seemed to be difficult to gauge since it was dynamic rather than static，and it was due to vary in different locations and demographic depending on consumption level of consumers and marketing strategy of merchants．）Long Ge，‘Degree of Good Reputation Should Not Become the Feature of Well－Known Trademarks’（2011）4 China Trademark 23，27．（Ge stated that neither the Paris Convention nor the TRIPS Agreement requested high reputation as a prerequisite to well－known trademark protection．Besides，the‘Joint Recommendation Concerning Provisions on the Protection of Well－Known Marks’ （‘Joint Recommendation’）did not specify any clues with regard to reputation，either．Accordingly，he suggested that the principal and the only feature of a well－known trademark was ‘well known'rather than‘reputation’．）
[9] Yiming Gu， ‘A Study on International Model of Well－Known Trademark Recognition and Protection’（2009）7 Academic Research 85，86．（Gu suggested that there were two key determinants which should be considered in examining well－known trademarks，i．e．‘high reputation'and‘well known by the relevant public’．The key question is how ‘high reputation'of a trademark contributes to the knowledge in eyes of the relevant public）；Long Ge，‘Degree of Good Reputation Should not Become the Feature of Well－Known Trademarks’（2011）4 China Trademark 23，27．（Ge argued that high reputation was the only feature of a well－known trademark）．
[10]
Art．5（1），2009 Judicial Interpretation．（‘To allege the popularity of a trademark，a party concerned shall，in light of the concrete circumstances of the case，provide the following proofs to demonstrate that its trademark is already famous at the time of occurrence of the trademark right infringement or unfair competition：
1．the market share，marketing regions，profits，taxes，etc．of the commodities using the trademark；
2．the duration which the trademark has been continuously used；
3．the manner，duration，extent，money input，and geographical scope of publicity or promotion of the trademark；
4．the records that the trademark has ever been protected as a famous trademark；
5．the market reputation of the trademark；and
6．other facts that can demonstrate that the trademark is famous．’）
[11] Yin Dong，‘The Effect of Market Reputation on Recognition of Well－Known Trademarks’（2011）9 （8） Journal of Huaihai Institute of Technology （Social Forum，Social Science Edition）64，65．
[12] Yongshun Chen and Lijuan Wu，‘Major Measures to Solve Chaos of Trademarks—A Study on Several Topical Issues in the Revision of the New Trademark Law’（2013）10 Electronics Intellectual Property 20，22；Yanfang Wang，‘The Application of the New Trademark Law in Civil Cases’（2013）11 Intellectual Property 33，34；Jin Zhang，‘A Study on Several Important Issues in the Third Revision of the Trademark Law’（2013）11 China Trademark 14，18．