Express | dispute between straw mushroom old soy sauce and gold standard raw smoke: Weishida was found to be infringing Haitian and should immediately stop using similar commodity decoration

On the morning of November 12, caijing.com found through a search by the China Judgment Documents Network that on November 11, the Intermediate People's Court of Foshan City, Guangdong Province, published a second-instance judgment on the case between Haitian and Heinz Weishida on the use of similar commodity decoration on special grade grass mushrooms and special grade gold standard raw soy sauce products involving acts of unfair competition.

Among them, Kaiping Weishida Condiment Co., Ltd., Fuda (Shanghai) Food Co., Ltd., and Heinz (China) Seasoning Food Co., Ltd. were ordered to immediately stop using commodity decoration similar to Haitian Seasoning Food Co., Ltd.'s straw mushroom dark soy sauce and gold standard raw soy sauce products on the production and sale of special grade grass mushroom dark soy sauce and special grade gold standard raw soy sauce products.

In addition, Kaiping Weishida Condiments is required to compensate Haitian for economic losses of RMB2 million, and Fuda (Shanghai) Food Co., Ltd. and Heinz (China) Seasoning Food Co., Ltd. are jointly and severally liable for RMB1 million of the debts determined by the judgment.

In terms of specific facts of the case, according to the disclosure of the judgment, Haitian believes that the alleged infringing goods and Haitian Company's products are 500ml and 1.9L, both of which are composed of top bottle cap stickers, bottleneck stickers, and bottle body stickers, and the arrangement and combination of bottle shapes, pictures, and text are consistent, because the price of soy sauce products is not high, consumers will not pay higher attention when purchasing products, which is enough to cause confusion and misidentification.

Secondly, in the details: the bottle cap stickers are golden bottle caps, which are wrapped in a plastic ring, and the red trademark logo position is set on the front of the bottle cap sticker, accounting for one-half of the height of the entire bottle body, and the overall color of the bottle cap sticker of the two products, the color and position of the trademark logo bit are the same.

In terms of bottleneck stickers, the bottleneck sticker is set at the bottleneck, taking the layout of red and gold color blocks, the upper part is a red bar frame, and the lower part is a golden color block bar frame, which wraps around the entire bottleneck, and the above is a 500ml specification bottleneck sticker. 1.9L does not set the above bottleneck sticker, in the position of the aforementioned bottleneck sticker, is to set the brand name in a concave and convex transparent font. The two alleged infringing goods of different specifications of Weishida Company, Fuda Company and Heinz Company are all product packaging and decoration imitating the corresponding specifications of Haitian Company.

In terms of bottle stickers, the front is a pastoral style stamp form label, which is composed of four points, and the top and bottom are yellow trademark frame, red soy sauce name frame, yellow "gold label raw soy sauce" or "straw mushroom old soy sauce" product name frame, and pastoral style paintings. In the lower right corner of the painting in the same position set the same size, the same color of the green label, in the green label, with the same font font size font color set the same meaning of the five-word slogan, of which the infringing product raw soy slogan for stir-fry is particularly fragrant, and Haitian Company raw smoking slogan stir-fry is only a word difference, the old smoking slogan is red and bright excellent, and Haitian Company's old smoking slogan a few drops on the color, there is no essential difference.

In this regard, Weishida Company, Fuda Company, Heinz Company believes: First of all, from the perspective of 1.9L packaging, Haitian Company's design point is bottle cap, bottle body and label. Bottle cap, bottle body has a logo, Haitian company said the brand, the overall structure of the bottle is the bottle cap on the top, there is a label below, this part is not the original design of Haitian company. For the 500ml part: The design of other brands described by Haitian Company is in a three-stage manner and is not the original design of Haitian Company. Even Weishida, Fuda and Heinz also adopt this design, not an imitation of Haitian, but a universal form.

Secondly, in the details part: different details for consumers to identify the goods are different, large details consumers will be easier to pay attention to, whether it is a large bottle or a small bottle, there are larger parts of the brand, consumers will be based on the brand when buying products, consumers will see the brand, for the subtle details will not pay more attention, consumers according to the brand is able to distinguish the source of the goods, can distinguish is different brands.

For example, on the trademark that highlights the logo: Haitian Company has a large red shading, and the alleged infringing goods are semi-fan-shaped and dark red. Trademark font: Haitian is relatively regular. The alleged infringing goods are structured in a curved shape.

For the product name: The name of Haitian Company is Straw Mushroom Old Soy Sauce, the alleged infringing goods are Special Grade Straw Mushroom Old Soy Sauce, the font is different, Haitian Company is Gold Standard Raw Smoke, and the alleged infringing goods are Special Grade Gold Label Raw Smoke. In terms of graphics, the careful comparison of the graphics of the two sides is different, although they are pastoral style, but there are obvious differences in details, on the whole, the trademark logo with prominent expression is completely different, and there are differences in the comparison of details, and consumers can distinguish goods with general attention, which will not cause confusion and misidentification.

In addition, the two sides also mentioned in the evidence that Haitian Company, as the copyright owner, registered some works with the copyright registration agency and obtained the corresponding work registration certificate. Including "Haitian soybean version of the gold label raw soy sauce series label pattern", "Haitian soy sauce grass mushroom old soy sauce label pattern" and so on.

The bottle stickers/labels of the alleged infringing goods have applied for design patents, of which the patent number of the special grade gold standard raw bottle sticker is: ZL201730569903.6, and the patent number of the special grade grass mushroom old bottle sticker is: ZL201730569904.0, the application date of the two appearance patents is November 17, 2017, and the date of patent authorization announcement is March 30, 2018.

The court of second instance held that the focus of the dispute in the second instance of this case was: 1. whether the acts of Weishida, Fuda and Heinz constituted unfair competition; 2. if unfair competition was constituted, how Should Westa, Fuda and Heinz should bear civil liability.

The court of second instance pointed out that there are two constituent elements of commodity decoration with certain influence as described in Article 6, Paragraph 1 of the Anti-Unfair Competition Law, one is that the decoration of the commodity has significant differentiating characteristics and is not common to the relevant commodities, and the other is that the commodity using the decoration has a certain popularity in the market.

Whether the decoration of the goods involved in the case of Haitian Company constitutes the decoration of goods with a certain degree of influence as described in Article 6, Paragraph 1 of the Anti-Unfair Competition Law shall be judged from the above two aspects.

First of all, on the question of whether the decoration of the goods involved in the case of Haitian Company has significant differentiating characteristics. Product decoration refers to the text, pattern, color and arrangement of the product or its packaging attached to the product or its packaging for the purpose of misalignment and beautification of the product. The reason why the Anti-Unfair Competition Law protects a specific decoration of goods is based on the fact that the decoration of the goods has the distinctive characteristics of identifying the source of the goods, and the unauthorized use of the decoration of the goods by others will cause confusion or misidentification by the relevant public.

Since the role of commodity decoration in identifying the source of goods is realized by the relevant public observing the overall sensory impression of the commodity decoration formed by the arrangement and combination of text, pattern, color and other constituent elements and the source of a certain commodity, the judgment of whether the commodity decoration is significant is not whether the constituent elements of the decoration are significant, but whether the decoration composed of the various constituent elements is significant as a whole.

In this case, the arrangement and combination of the text, pattern, color and other constituent elements in the decoration of the goods involved in the case of Haitian Company reflected a certain design aesthetic, which was not the general design of the soy sauce products, and was significant. Even if some of the constituent elements of the decoration of the goods involved in the case of Haitian Company are the generic name or common design of the goods, as mentioned above, the consideration for judging whether the decoration of the goods is significant is considered whether the decoration as a whole is significant, rather than whether the various constituent elements of the decoration are significant, and the non-distinctiveness of some of the constituent elements in the decoration does not affect the significance of the elements as a whole after the arrangement and combination of the constituent elements.

The decoration of other soy sauce products testified by Weishida Company is different, and there are also major differences in the overall visual effect from the decoration of the goods involved in haitian company, which confirms that there is a large design space for the decoration of soy sauce products, and the design of the decoration of the goods involved in the case of Haitian company does not belong to the usual design of the decoration of soy sauce products. Therefore, the court did not support Weishida Company's appeal that the decoration of the goods involved in the case was not conspicuous and lacked reasoning.

Second, on the question of whether the goods used by Haitian Company in the decoration involved in the case had a certain impact. The evidence submitted by Haitian Company shows that Haitian Company has been using and publicizing the goods involved in the decoration since 2013, and the geographical scope of use and publicity is wide, and Weishida Company's appeal claim that Haitian Company's use of the decoration involved in the case does not have a certain impact lack of reason, and this court does not support it. In summary, the court of first instance found that the decoration of the goods involved in the case of Haitian Company constituted not improper decoration of the goods with a certain degree of influence as described in Article 6, Paragraph 1 of the Anti-Unfair Competition Law, and this court upheld it.

Weishida Company appealed that the decoration of the allegedly infringing goods was not the same as or similar to the decoration of the goods involved in the Haitian Company, and would not cause confusion or misidentification among the relevant public. In this regard, the Court believes that to judge whether the use of other people's commodity decoration will cause confusion or misidentification, it is necessary not only to consider the similarity of the decoration of the two commodities, but also to judge it in light of the level of understanding of the relevant public.

In this case, the decoration of the allegedly infringing goods was compared with the decoration of the goods involved in the Haitian Company, and the arrangement and combination of words, patterns and colors were basically the same. Although there are certain differences in the constituent elements of the decoration of the two, because soy sauce products are daily consumer goods and the price is not high, the relevant public generally does not pay higher attention when purchasing, judging by the general attention of the relevant public, the overall sensory impression of the decoration of the two is similar, which will cause confusion or misidentification of the relevant public.

Even if the trademarks of "Weishida" and "Weishida Master" are prominently marked on the alleged infringing goods, it is difficult to rule out the possibility that the relevant public mistakenly recognizes the source of the goods or believes that the alleged infringing goods have a specific connection with the goods used by Haitian Company in the decoration involved in the case. Therefore, the grounds for the appeal of Weishida Company are not established, and this court does not support it.

Weishida Company's unauthorized use of the decoration of the goods involved in the case of Haitian Company led people to mistakenly believe that it was someone else's goods or that there was a specific connection with others, and the court of first instance found that its behavior constituted unfair competition and the applicable law was correct, and this court upheld it.

There are two types of infringing goods in this case, each of which includes two specifications: 500ml and 1.9L. The labels of the two alleged infringing goods indicate that the principal is Weishida Company, of which the entrusted manufacturers of the two alleged infringing goods of 500ml specifications are Fuda Company, and the entrusted manufacturers of the two alleged infringing goods of 1.9L specifications are Heinz Company. Therefore, judging from the producer information marked on the alleged infringing goods, the producers of the two allegedly infringing goods of the 500ml specification are Weishida Company and Fuda Company, and the producers of the two alleged infringing commodities of 1.9L specification are Weishida Company and Heinz Company.

Agstar, Foda and Hei's claimed that the two alleged infringing goods in this case were all produced by Mishida, and that Fuda and Heinz were not producers of the alleged infringing commodities, but the statements of Mistar, Fuda and Heinz were obviously inconsistent with the producer information they indicated on the products.

Since China implements a licensing system for food production and operation, food production should be licensed according to law, and the outer packaging of prepackaged food should also indicate the name of the producer and other information to facilitate the supervision of food hygiene and safety, so food producers cannot arbitrarily list non-food producers as producers on the outer packaging label of food. In the case that the alleged infringing goods are not counterfeited by others, the producer information marked on the alleged infringing goods has a high degree of credibility.

Weishida Company, Fuda Company and Heinz Company shall bear the burden of proof for claiming that Fuda Company and Heinz Company are not the producers of the alleged infringing goods. In the absence of evidence from Weishida Company, Fuda Company and Heinz Company, the statements of Weishida Company, Fuda Company and Heinz Company alone are not enough to determine that the producers of the two allegedly infringing goods are only Weishida Company.

At the same time, since Weishida Company, Fuda Company and Heinz Company are related enterprises, for the use of the two allegedly infringing decorations, Weishida Company obviously has the intention of jointly committing infringement with Fuda Company and Heinz Company. Therefore, the Court found that Weishida Company and Fuda Company, And Weishida Company and Heinz Company jointly carried out acts of unfair competition using the decoration of the goods involved in the Haitian Company. The court of first instance only found that Weishida Company had wrongly applied the law for the act of unfair competition, and this court corrected it.

On the issue of how Weishida Company, Fuda Company and Heinz Company should bear civil liability, the court stated that since Weishida Company had jointly committed tortious acts with Fuda Company and Heinz Company respectively, according to the provisions of Articles 8 and 15 of the Tort Liability Law, Weishida Company, Fuda Company and Heinz Company should immediately stop using commodity decoration similar to the commodities involved in the case of Haitian Company on the production and sale of special grade grass mushroom dark soy sauce and special gold standard raw extract products, and Weishida Company and Fuda Company, respectively, Heinz Company shall bear the corresponding joint and several liability.

Since the losses suffered by Haitian Company as a result of the infringement and the benefits obtained by Weishida Company, Fuda Company and Heinz Company due to infringement could not be determined, this court applied the provisions of Paragraphs 3 and 4 of Article 17 of the Anti-Unfair Competition Law of the People's Republic of China (revised in 2017) to determine the amount of damages. With regard to the determination of the amount of compensation, the Court mainly considers the following factors:

First, when the allegedly infringing goods were put on the market at the end of 2017, the goods involved in the case of Haitian Company had been put on the market and widely publicized, and Weishida Company, Fuda Company and Heinz Company, as large-scale condiment production enterprises, should have been aware of the use of the decoration of the goods involved in the Haitian Company. As direct competitors of Haitian Company, Weishida Company, Fuda Company and Heinz Company used commodity decoration similar to the goods involved in the case of Haitian Company when the new products were listed, and their subjective intention to open up the market by imitating Haitian Company's commodity decoration was obvious.

Second, the registered capital of Weishida Company, Fuda Company and Heinz Company all exceeded 10 million yuan, and the production scale was large. Since December 2017, it has continued to produce and sell the alleged infringing goods, and its products have been sold in many provinces and cities, with a wide range of sales areas. Considering the production scale, sales time and geography of Weishida, Fuda and Heinz, the amount of economic losses determined by the court of first instance was too low.

Third, this court also takes into account that the registered trademark of Weishida Company itself also has a certain degree of popularity, and although the registered trademark of Weishida Company cannot be completely avoided by the relevant public confusion and misidentification, for some consumers who are familiar with Weishida's products, the use of the allegedly infringing decoration will not cause confusion or misidentification of the source of the goods, and the sales of the alleged infringing goods have not completely squeezed the market share of the goods involved in haitian company.

Considering the above factors, the Court determined that Weishida Company and Fuda Company jointly compensated Haitian Company with 1 million yuan, and Weishida Company and Heinz Company jointly compensated Haitian Company with 1 million yuan. Haitian Company did not produce evidence to prove that the reasonable expenses it paid to stop the infringement were higher than 150,000 yuan, and its appeal claimed that the reasonable expenses determined by the court of first instance were too low and lacked factual basis, and this court did not support this claim. Since the above-mentioned reasonable expenses were paid by Haitian Company to stop the infringement of Weishida Company, Fuda Company and Heinz Company, Weishida Company, Fuda Company and Heinz Company shall bear joint and several liability for the above reasonable expenses.