Recently, there have been news reports about how an application for identification of a well-known trademark in advance might be filed in China, but this is simply a misunderstanding. Accordingly, the Intellectual Property Office (IPO) recently made an announcement to clarify the relevant issues. The IPO points out, according to the current practice in China, when disputes arise in connection with trademark infringement, trademark registration or trademark review, the court, the Trademark Office, or the Trademark Review and Adjudication Board will determine whether the trademark concerned is well-known.

Before 2002, the identification of a well-known trademark in China could be done by filing an application in advance. Specifically, a trademark owner could apply to the State Administration for Industry and Commerce of the People's Republic of China for identification of a well-known trademark even if the trademark was not involved in any dispute. As a result, the administrative authorities became keen on evaluation of trademark reputation and the famous brand system was created in China. However, this also caused provinces or cities to cite the number of cases of the evaluation and identification of well-known trademarks as an indicator of their performance, which violated the principle of protecting well-known trademarks on a case-by-case basis and was criticized by the public. To legalize the identification and management of well-known trademarks, China in 2002 promulgated the Amendment to the Trademark Law and to the Rules of Implementation of the Trademark Law. The amendments prescribe that a party may apply to the Trademark Office or the Trademark Review and Adjudication Board for identification of the well-known status of a trademark only if disputes occur in the course of the trademark registration or trademark review. The Provisions for Identification and Protection of Well-known Trademarks and the Rules for Identification of Well-known Trademarks by the State Administration for Industry and Commerce were subsequently promulgated, which prescribe the authority in charge of identification and the procedures of identification in details.

The Supreme People's Court of China further published the Interpretation on Issues Arising from Application of Law on Civil Cases about Domain Names and the Interpretation on Issues Arising from Application of Law on Civil Cases about Trademarks. The interpretations expressly prescribe that in examining a civil case about domain name infringement or trademark infringement, the court can determine whether the trademark is well-known. In April 2009, the Supreme People's Court of China published the Interpretation on Issues Arising from Application of Law on Civil Cases about Protection of Well-Known Trademarks, which prescribes that when a party uses a well-known trademark as factual basis, the Supreme People's Court can determine whether the trademark involved is well-known on the basis of the proof of well-known status of the trademark and the circumstances of the case. However, in a civil case which involves the protection of a well-known trademark, the results of such determination can only serve as a fact of the case and a reason for the judgment, and cannot be entered into the text of the judgment.

The IPO reminds local companies or manufacturers that proof of a well-known trademark is a factual issue, and therefore, evidence must be provided to prove whether the trademark is famous in China and the burden of proof is on the rightholder. Evidence of use of a well-known trademark is mainly used to prove that relevant enterprises or consumers in China are familiar with the trademark. Therefore, the evidence in connection to use of a trademark in Taiwan or other countries should also be able to prove that the information on use of the trademark is disseminated to China. The evidence includes articles relating to the enterprise or trademarked goods published in newspapers circulated in China, statistics on the number of visitors from China to Taiwan, examples of stores or electric spectaculars carrying the trademark or goods opened or installed at Taoyuan Airport or Taipei Songshan Airport, relevant advertisements or articles on the market share in international magazines that are published or circulated in China. Also, data about the number of hits or about ordered or inquiry from China on the enterprise's website can serve as evidence, in particular, materials relating to the applicant or registrant of a trademark at issue or materials relating to other territories in which the applicant or registrant is based.