On June 27, 2025, the 16th Meeting of the Standing Committee of the 14th National People's Congress adopted the newly revised Anti-Unfair Competition Law (hereinafter referred to as the Anti-Unfair Law), which will come into force on October 15, 2025. The revision is a major one, with the total number of articles increased from 33 to 41. The key purpose is to respond to the new competitive chaos in the digital economy era, enhance platform responsibilities, curb "internal competition", and improve rules for data rights protection. This article intends to provide a personal understanding of the provisions related to intellectual property rights in this revision, serving as for thought to peers and experts.

1. Intellectual Property Provisions in the New Anti-Unfair Law

The Anti-Unfair Competition Law is an important foundational law in China's economic legal system, mainly regulating competitive behavior that violates business ethics and the principles of good faith. The unfair competition behaviors prohibited by this law include confusion, commercial bribery, infringement of trade secrets, unfair prize sales, commercial defamation, and online unfair competition behaviors.

In accordance to the broad concept of intellectual property defined in Article 2 of the Convention on the Establishment of the World Intellectual Property Rights, intellectual property covers the rights arising from intellectual activities in the fields of industry, science, literature and art, and the prevention of unfair competition is also one aspect of intellectual property protection. Therefore, from a broad perspective of intellectual property, the Anti-Unfair Competition Law can be fully classified under the scope of intellectual property law. According to the narrow definition of intellectual property, intellectual property only includes objects that are explicitly granted exclusive rights by law.

Article 123 of the Civil Code of China clearly lists seven types of intellectual property rights: (1) work; (2) invention, utility model and design; (3) trademark; (4) geographical indication; (5) trade secret; (6) integrated circuit layout design; and (7) new plant variety.

Among the several types of unfair competition behaviors stipulated in the new Anti-unfair law, Article 7 (formerly Article 6 of the Anti-Unfair Law) stipulates the confusion of commercial signs, including trademark, and Article 10 stipulates the infringement of trade secrets. Only these two provisions are relatively close or can be classified under the narrow scope of intellectual property rights, while commercial bribery, unfair prize sales, commercial defamation, and online unfair competition behaviors are not directly related to the seven types of intellectual property rights stipulated in the Civil Code. So, from a narrow perspective of intellectual property, only Articles 7 and 10 of the new Anti-Unfair Law can be considered as laws related to intellectual property.

Article 7 of the new Anti-Unfair Law is the focus of this revision, while Article 10 has not been revised. In addition, the penalties for violating the provisions of Article 7 and Article 10 have also been revised. Therefore, this article only provides a brief introduction to the revision of Article 7 of the new Anti-Unfair Law and the related penalties. 

2. Revision of Article 7 of the New Anti-Unfair Law

The revision of Article 7 of the new Anti-Unfair Law is reflected in two aspects: firstly, it changes the wording of item (2), replacing "enterprise name (including abbreviation, trade name, etc.), social organization name (including abbreviation, etc.)" with "name (including abbreviation, trade name, etc.)". This amendment only makes the wording of the law more concise, and the revised "name" should refer to the names of the enterprises and social organizations before the amendment, without any substantial changes in content. The second is the addition of some specific confusion behaviors, which is the focus of the revision. The details are as below.

(1) Add types of commercial signage

On the basis of Article 6 of the original Anti-Unfair Law, new types of commercial marks that have emerged or gained attention in the digital economy era have been added, namely, "network name" has been added in item (2), and "new media account name, application name or icon" has been added in item (3). Although there are multiple expressions of "etc." in the listing of Article 6 of the original Anti-Unfair Law, which can cover more unlisted objects, the inclusion of these new objects in the new Anti-Unfair Law is conducive to the certainty and convenience of legal application. 

It should be noted that in the application of the law, not all "network name" and "new media account name, application name or icon" are protected by the new Anti-Unfair Law. They must be "influential" signs to be regarded as objects that are not allowed to be used without authorization. Regarding the judgment of "having certain influence", Article 4 of 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 (Interpretation [2022] No. 9) stipulates that the mark "having certain influence" refers to a mark that has a certain market reputation and distinguished characteristics that can tell the source of goods. When determining whether there is a certain level of market awareness, comprehensive consideration should be given to factors such as the level of public awareness within China, the time, region, amount, and target audience of product sales, the duration, degree, and geographical scope of promotion, and the status of protected labeling, etc.

(2) Add regulations on conflicts between commercial signage and enterprise name

In the newly added second paragraph, it is explicitly listed that the act of using someone else's registered trademark or unregistered well-known trademark as a brand name in a company's name belongs to the confusion behavior stipulated in item (4) of the first paragraph. This is a typical behavior of "taking free ride of famous brands", which is stipulated in Article 58 of the Trademark Law and Article 13 (2) of Interpretation [2022] No. 9. This revision directly reflects this behavior in the new Anti-Unfair Law, which cannot be considered as new content, but it facilitates the application of the new Anti-Unfair Law and is also conducive to maintaining the uniformity of the judgment.

Regarding the application of this clause, the following points should be noted:

1) it is stipulated herein that "registered trademarks of others and unregistered well-known trademarks" shall be used as the name of the enterprise, and unregistered non well-known trademarks shall not be included. This expansion of registered trademark protection means that even if some trademarks are not registered, they have already accumulated a certain level of popularity and commercial value through use in market operations, and others cannot imitate and confuse them at will, otherwise it constitutes unfair competition.

2) the unauthorized use of "other people's registered trademarks or unregistered well-known trademarks" as a business name must objectively reach the level of "causing people to mistake them for other people's goods or having a specific connection with others" in order to constitute confusion.

3) even if the registration of a company name precedes the registration of a trademark or an unregistered well-known trademark by others, the use of the company name shall adhere to the principle of good faith and shall not intentionally highlight the use of other people's registered trademarks or unregistered well-known trademarks contained in the name, which may cause public misidentification.

(3) Add regulations on illegal use of search keywords

The newly added second paragraph lists the illegal use of search keywords, namely "setting other people's product names, enterprise names (including abbreviations, trade names, etc.), registered trademarks, unregistered well-known trademarks, etc. as search keywords, leading people to mistakenly believe that they are other people's products or have specific connections with others", which is clearly defined as confusion behavior.

In the e-commerce, business owners often engage in online free riding by illegally using search keywords. In recent years, many search engines or e-commerce platforms have launched bidding ranking services. Business owners purchase bidding ranking services from such platform and bind keywords with their promotional information. When public consumers use this keyword to search for relevant information, the promotion information of the business owner can obtain a higher ranking in the search results, thereby increasing the promotional effect. To some extent, this is a market behavior that is understandable. However, some business owners use influential commercial logos such as product names, company names, registered trademarks, and unregistered well-known trademarks as keywords in their promotional information to increase exposure. Some business owners directly use other people's keywords in the titles or web pages of their search results links, which is called "explicit use" of keywords. Explicit use "is prone to causing confusion among the public and is a behavior explicitly prohibited by Article 7 (2) of the New Anti-Unfair Law.

The opposite of 'explicit use' is' implicit use '. The so-called "implicit use" of keywords refers to businesses using others' commercial logos as keywords for their promotional information in bidding rankings, but not displaying the keyword in the title or webpage of the search result link. The business owner's promotional information will still rank high in the search results. There has been controversy in the judicial field over whether the "implicit use" of keywords constitutes unfair competition.

For example, the judgment of the trial of second instance of the "Hailiang case" ((2020) Zhejiang Civil Final Appeal No. 463) held that the "implicit use" of the keywords involved in the case did not hinder the other party's information display, nor lead to public misunderstanding, and therefore did not constitute unfair competition. The retrial judgment of the case ((2022) Supreme Court of Justice No. 131) held that the act of setting competitors' business logos as keywords for use without permission, even if it was "implicit use", also constituted unfair competition, because this act violated the principle of good faith and the code of business ethics, not only violated the legitimate rights and interests of competitors, disrupted the normal Internet competition order, but also violated consumer rights and social and public interests. It has caused damage and is an act of unfair competition as stipulated in Paragraph 2 of Article 2 of the Anti-Unfair Competition Law. Therefore, it should be regulated in accordance with the above legal provisions.

The second paragraph of Article 7 of the new Anti-Unfair Law clearly stipulates that the "explicit use" of keywords meets the constituent elements of confusion behavior, while the "implicit use" does not constitute confusion behavior as stipulated in this paragraph due to the lack of the element of "inducing people to mistakenly believe that it is someone else's product or has a specific connection with others". It is still unknown whether the court will still classify the "implicit use" of keywords as unfair competition behavior in accordance with the paragraph 2 of Article 2 after the new Anti-Unfair Law comes into effect. Let's wait and see.

(4) Add provision on acts of assisting implementation of confusing 

The newly-added paragraph 3 states that acts of assistance can also constitute acts of confusion. This regulation may come from Article 15 of the Interpretation [2022] No. 9, which stipulates that the act of intentionally providing convenient conditions such as storage, transportation, mailing, printing, concealment, and business premises for others to engage in confusing behavior shall be handled in accordance with the provisions of Article 1169 (1) of the Civil Code, which requires incitement and assistance in infringement. This is a temporary measure in the absence of provisions in the original law to assist in the implementation of confusing behavior. The third paragraph of Article 7 of the new Anti-Unfair Law clearly defines assisting in the implementation of confusing behavior as unfair competition behavior, filling a loophole in the law and facilitating the complete and accurate application of the new Anti-Unfair Law.

3. Revision of penalties related to intellectual property clauses

The third paragraph of Article 22 of the new Anti-Unfair Law has adjusted the calculation method of compensation for damages caused by unfair competition (including confusion). The original law calculates the victim's infringement losses first and then calculates the infringer's profits, while the revised law has no longer distinguishes between the two. This adjustment allows parties involved to choose a compensation amount calculation method that is favorable to them, increasing the flexibility of dispute resolution.

The paragraph 1 of Article 23 of the new Anti-Unfair Law adds the provision of assisting others in committing acts of confusion after the commission of such acts, making the former equal to the commission of acts of confusion and subject to the same administrative penalties. The word 'concurrently' was added before 'revocation of business license' in the same paragraph, changing the penalty from 'revocation of business license only' for severe circumstances to 'revocation of business license concurrently', increasing the severity of the punishment.

The paragraph 2 of Article 23 of the new Anti-Unfair Law specifies that those who sell illegal goods as stipulated in Article 7 shall be punished in accordance with the provisions for engaging in acts of confusion; where an uninformed seller can prove the legitimate source of the goods, no administrative penalty shall be imposed. The provision of this clause comes from Article 14 of the Interpretation [2022] No. 9. This revision has elevated the legal status of the regulations, strengthened the stability of the rules, and also facilitated the application of the law.

Article 26 of the new Anti-Unfair Law involves penalties for infringing on trade secrets. As mentioned earlier, this revision does not modify the provisions regarding infringement of trade secret, but increased the liability for such infringement, raising the minimum fine for serious infringement of trade secrets from RMB 500, 000 to RMB 1 million.

4. Conclusion

Overall, the newly revised Anti-Unfair Competition Law has made significant revisions in various aspects, including intellectual property protection, expanding the scope of protection, clarifying the definition of unfair competition behavior, and increasing penalties, providing stronger legal protection for maintaining a fair competition market environment and protecting intellectual property rights.