The packaging of "Desheng" curry and "good waiter" curry is too similar to be indistinguishable, and the court: "Desheng" product constitutes counterfeiting

<h5>The packaging of two different brands of curry is highly similar, and it is difficult for consumers to distinguish between them on the shelves. Does this constitute unfair competition? The Shanghai Pudong Court heard a case of counterfeiting the appearance of a well-known curry product. </h5>

<h2>The packaging of "Tokusei" and "Good Waiter" curry is highly similar </h2>

The main products of the plaintiff Haoshi Company are "Baimengduo Curry" and "Javanese Curry", which have been sold in the Chinese market since 2005 and 2010 respectively. The packaging of curry products has been reported in many newspapers and websites, and the plaintiffs have also advertised products at exhibitions, subway stations, shopping malls, etc., and some reports and advertisements have presented product packaging and packaging.

Enter two products in Baidu search, and the search results can reach dozens of pages. Haoshi Company has applied for a number of design patents for the packaging and decoration of two products according to different spiciness, one of which is still within the validity period and the other patents have expired.

In 2016, Haoshi Company found that the defendant Foshan Desheng Spark Food Co., Ltd. had "Desheng Miaoduo Curry" and "Desheng Miaoduo Flavor Curry" on the booth of an exhibition in Pudong, and the packaging and decoration of the products complained of were similar to the packaging of the plaintiff's products.

The manufacturer of Desheng series products is Foshan Desheng Spark Food Co., Ltd. The weChat public account subject pointed to by the QR code of the brochure attached to the product is the defendant Guangzhou Desheng Food Co., Ltd., and the public account also has Desheng products for sale.

The two defendants argued that the packaging and decoration claimed by Haoshi Company involved five design patents that had expired and expired, and the relevant designs were already well-known technologies; and another design patent still existed, and Haoshi Company should claim the design patent instead of the packaging and decoration with certain influence. The defendant's packaging is neither the same nor similar to that of the good waiter, and there is no possibility of confusion. The defendant had a design patent for its packaging and was entitled to use it. In summary, the defendant did not constitute unfair competition.

<h2>Court: "Desheng" products constitute counterfeiting</h2>

After trial, the Pudong court held that, first of all, the packaging and decoration of the plaintiff's products constituted packaging and decoration with a certain impact. The packaging and decoration of "100 Dreams Curry" and "Javanese Style Curry" are composed of a series of elements, and although they have been slightly modified since entering the Chinese market, the overall style is unified. The arrangement and combination of color, graphics, text and other aspects of packaging and decoration are unique, forming a significant overall image, and have nothing to do with the functionality of the goods, after a long period of use and publicity, the relevant public has been able to link the above packaging and decoration with the plaintiff, resulting in the identification of the source of the goods. The defendant argued that part of the design patent enjoyed by the plaintiff's product was still within the validity period and part of it had expired, and that the design patent within the validity period should be protected through the patent right, and the invalid design patent had entered the public domain and could be used.

In this regard, the Court held that well-known commercial designs could be subject to multiple protections. When the design patent right and the rights and interests of the packaging and decoration of goods with a certain degree of influence are attributed to the same subject, the rights overlap and the right holder may choose to exercise them. The plaintiff's products enjoyed a design patent without prejudice to the packaging, decoration and protection it claimed. After the termination of a design patent, if the appearance of the goods meets the protection conditions of the Anti-Unfair Competition Law, it may be protected by the Anti-Unfair Competition Law. Therefore, regardless of whether the design patent enjoyed by the plaintiff's product is within the validity period, it does not prevent the packaging and decoration that it claims to have a certain impact.

Secondly, the packaging and decoration of the products complained of are similar to those of the plaintiff's products, which can easily lead to confusion and misidentification. Comparing "Baimengduo Curry" with "Tokusang Myotok Curry", "Javanese Flavor Curry" and "Tokuson Myoto Flavor Curry" respectively, the two are similar in terms of background color, text arrangement and text size, trademark position, choice of pattern elements, etc., which are easy to misidentify the relevant public.

Third, the insufficient enjoyment of the design patent of the product in question constitutes a defense. The design patent of the alleged product was obtained much later than the time when the plaintiff's product entered the Chinese market, and at that time, the packaging and decoration of the plaintiff's products already had a certain impact and were not enough to resist the prior rights and interests.

The manufacturer of the products sued is Desheng Spark Company, and the seller is Guangzhou Desheng Food Co., Ltd. Accordingly, the court ordered the two defendants to cease the acts sued, compensate for economic losses and reasonable expenses.

<h2>Judge's Statement</h2>

What are the elements of judicial review for "unauthorized use of packaging and decoration with certain influences"?

After the revision of the Anti-Unfair Competition Law, the expression "unique packaging and decoration of well-known commodities" was changed to "packaging and decoration with certain influence". Although the wording is different, the essence is to protect the packaging and decoration through the use of the role of identifying the source.

First, the determination of "certain impact". The sales volume and market share of the product can be used for reference. However, the popularity of the product is not equal to the degree of influence of its packaging and decoration, and the influence of packaging and decoration also needs to consider whether the packaging and decoration itself can identify the source of the product.

Secondly, about the correspondence between goods and packaging and decoration. Although the word "unique" is no longer used in the expression, "uniqueness" is still a potential element for the protection of packaging and decoration. In the long-term business process, it is very normal for operators to update product packaging, as long as the design of new and old packaging and decoration is consistent, and the relationship with the source of goods is not disconnected, and the new packaging and decoration can inherit the influence of old packaging and decoration.

If the appearance of the goods is counterfeited, what is the connection and difference between the design patent and the protection of the Anti-Unfair Competition Law?

Design patent rights and packaging and decoration with certain influence belong to two different rights and interests. Whether the rights and interests of packaging and decoration with a certain degree of influence come from the role of identifying the source through use, whether it can constitute a case-by-case determination; the creation of design rights needs to be applied for, and there is a period of protection prescribed by law. After the termination of the design patent, the design does not automatically enter the public domain, and can also be protected by the Unfair Competition Law when the design patent already has a different source of product, and the design is not a design determined by the nature of the goods themselves, nor is it necessary to achieve a certain technical effect or design that gives the goods substantial value.

Even if a packaging and decoration has obtained a design patent, if the use of the design patent has the unauthorized use of packaging or decoration that has a certain influence on others, it may constitute unfair competition.

Source: Thoughtful