On April 21, 2014, the Supreme People’s Court published the list for China 2013 Top 10 Innovative IP Cases. These 10 IP cases are selected from nationwide courts decisions. Two trademarks cases are selected and both are trademark administrative lawsuits before the Supreme People’s Court. The “Duck King” trademark administrative re-trial lawsuit represented by Mr. Jason Wang, Partner of Beijing East IP Law Firm, was listed as China 2013 Top 10 Innovative IP Cases and selected as one of the two trademark cases.

Mr. Jason Wang represented Shanghai Huaihai Duck King Roast Duck Ltd. and prevailed both of the two administrative re-trials cases before the Beijing High People’s Court as well as the Supreme People’s Court. This case is one of the few IP administrative cases that engaged in re-trials twice. The first re-trial is one of a few IP administrative re-trial cases initiated by the Supreme People’s Procuratorate and win the case in the end.

This case lasted for more than a decade, exhausted all possible legal procedures prescribed the law. It began with all the four administrative proceedings, i.e. rejection, rejection appeal, opposition, and opposition appeal, then both the two judicial proceedings (i.e. first and second instances), and then the first re-trial proceeding protested by the Supreme People’s Procuratorate and the second re-trial before China Supreme Court against the previous re-trial.

In this specific case, the Supreme People’s Court established and affirmed the new standard of “Two Elements”, that is, the two elements of “the knowledge standard” (knew or should have known) and “riding the goodwill standard” (with intention to free ride or invade other’s goodwill) shall be cited as criteria to determine the bad faith of the trademark applicant. This is a useful supplement and improvement to judicial interpretations of the Supreme People’s Court regarding the bad faith filing provision prescribed under Article 31 of the Chinese Trademark Law.