Copycat "ryukakusan" is judged infringement
Recently, Shanghai Pudong New District People's Court made a judgment for a dispute case sued by RYUKAKUSAN CO., LTD. against Hangzhou Hexi industrial limited company, etc. regarding "龍の散" trademark infringement and unfair competition in product packaging decoration, affirming that the behavior of producing and selling the infringing product by the infringing party constitutes trademark infringement, unauthorized use of decoration similar to the right holder's product packaging and decoration having certain influence constitutes unfair competition. Currently, the case is still within the appeal period.
The right holder RYUKAKUSAN CO., LTD. was established in 1928, and is a pharmaceutical company specialized in drugs for throat, its main products are throat drugs, throat lozenges, and auxiliary jellies for taking medicine, etc. "RYUKAKUSAN" is an ancestral Chinese drug of the Fujii family, developed in Edo period which is two hundred years ago. Because the prescription at that time included keel, borneol and cornu cervi degelatinatum, is a pulvis, thus the name was got. Upon improvements by heirs of the Fujii family and development till now, RYUKAKUSAN gradually becomes a well-known family drug brand in Japan, and has high popularity in Japan and many countries and regions including China. The right holder develops ryukakusan herbal moisten series throat lozenge products based on the throat drug "龙角散", which have a good moisturizing effect on a dry throat, etc., and are favored by the masses of consumers. As early as in 1997, RYUKAKUSAN CO., LTD. applied for registration in China of trademarks "龙角散" No. 1090265 and "龍角散" No. 1090266 on commodities such as class 30 "candies", and continuously uses them, they have high popularity.
This case results from a situation that in recent years, the right holder finds sales of candy products "龍の散" which plagiarize and imitate its trademarks and product packaging decoration. It is found after investigation that the infringing party Hangzhou Hexi has applied for a trademark "龍の散" on commodities such as class 30 candies, and also has applied for an appearance design patent for the product packaging which is highly similar to 龍角散 herbal throat lozenge's packaging decoration.
In order to comprehensively crack down on rush registration of a trademark or an appearance design patent as well as trademark infringement and unfair competition behaviors, and to ensure the smooth proceeding of the infringement lawsuit, the trademark lawyer team of Sanyou Intellectual Property Group makes a detailed rights protection plan for the right holder. Firstly, an objection is raised for the trademark "龍の散" applied by the infringing party Hangzhou Hexi, invalidation of the product packaging appearance design patent applied by Hangzhou Hexi is raised, finally favorable decisions on cases of trademark objection and invalidation of the packaging appearance design patent are obtained. Meanwhile, further investigation on the infringing behavior is carried out to determine infringement subjects, infringing behaviors implemented by them, and a competent court, infringement evidences are preserved by means of online and offline notarized purchases, and administrative complaints against the infringing party are raised in Zhejiang Jiaxing and Shanghai based on an infringement investigation result.
In the lawsuit, the following questions are mainly involved:
1. Whether the defendant Hangzhou Hexi implements a production behavior. In the present case, since the producer labeled on the packaging of the infringing product is a Fujian company, Hangzhou Hexi only acknowledges implementation of a sales behavior, but denies a behavior of producing the sued infringing product. Sanyou trademark lawyers rebut based on the following evidences: 1) the subject of the WeChat Official Account corresponding to the QR code on the infringing product is Hangzhou Hexi; 2) the trademark authorization letter to authorize a Fujian company to use the trademark, submitted by Hangzhou Hexi during the lawsuit, does not expressly indicate a mode of licensed use, the amount of a license fee and a payment method, and there is no evidence of actually paying the license fee, which cannot prove a trademark authorization and use relationship between Hangzhou Hexi and the Fujian company; 3) the bank slips and dispatch bills submitted by Hangzhou Hexi prove that it is not an intellectual property authorization relationship between Hangzhou Hexi and the Fujian company, but a relationship of jointly producing the infringing product; 4) the evidenced product recall letter submitted by Hangzhou Hexi also acknowledges "production and sales of "龍の散" candies have been stopped", the agent attorney claims, based on these facts, that Hangzhou Hexi not only implements the sales behavior, but also implements the production behavior, the court finally supports these claims.
2. Regarding determination of trademark infringement The infringing party Hangzhou Hexi argues that it has applied for a trademark for the sued infringing mark "龍の散", which does not constitutes trademark infringement. Sanyou trademark lawyers claim that the sued infringing product is identical with the plaintiff's candy commodity on which use of the trademark is approved, the difference only lies in a single word between the sued infringing trademark "龍の散" and the trademark "龍角散", and "の" used in the infringing mark is a Japanese character, which is very easy for consumers to confuse and misidentify the source of the product. The right holder has raised an objection application for the trademark "龍の散", this trademark fails to be registered, which cannot serve as a reason for defense. During the lawsuit, Sanyou trademark lawyers also submit the decision not to register as made for the case of objection to the trademark "龍の散" applied by Hangzhou Hexi, as an evidence. In the objection decision, the Trademark Office determines that "龍の散" and "龍角散" constitute similar trademarks on identical and similar commodities. The court supports our claim and affirms that the infringing party's behavior of producing and selling the infringing product with a mark "龍の散" constitutes trademark infringement.
3. Regarding determination of unfair competition The infringing party defenses that the packaging of the infringing product uses its appearance design patent, which does not constitute infringement. Sanyou trademark lawyers claim that the appearance design patent on which the infringing party defenses has been announced invalid, and the infringing party has implemented a behavior of producing and selling the infringing product before the appearance design patent is granted. The product packaging decoration of the right holder's 龍角散 has a certain design aesthetic feeling and strong conspicuousness, has high popularity after long use and promotion by the right holder, forms a stable congruent relationship with the right holder, and produces a function of identifying a source of the commodity. The packaging decoration used by the infringing product is similar to the right holder's product packaging decoration, which is very easy for consumers to confuse and misidentify, and the court is provided with a detailed chart of comparing the right holder's product packaging decoration and the infringing party's product packaging decoration, as well as comparison description of significant features. The court supports our claims and affirms that the right holder's product decoration belongs to decoration with certain influence, the infringing party's production and sales of decoration similar to the right holder's decoration with certain influence constitutes unfair competition.
Finally, the court affirms that Hangzhou Hexi and the Fujian company jointly implement the behavior of producing and selling the infringing commodity, which constitutes trademark infringement and unfair competition, and a Shanghai convenience store's sales of the infringing product constitutes trademark infringement. The court orders Hangzhou Hexi and the Fujian company to stop trademark infringement and unfair competition, to eliminate effects and jointly and severally compensate the right holder for losses and reasonable expenses amounting to 200,000 yuan, and also judges the Shanghai convenience store to compensate for losses and reasonable expenses amounting to 2500 yuan.
The product involved in this case is food, product quality concerns health safety of consumers and also concerns the brand reputation of the right holder. The infringing party's production and sales of the infringing product seizes the right holder's market, the product quality is not guaranteed, which seriously damages the right holder's interests and the brand reputation, the court supports the right holder's request in the judgment to order the infringing party to eliminate effects.
This case is RYUKAKUSAN CO., LTD.'s rights protection in China for the first time for intellectual property right infringement. The judgment of this case demonstrates China's determination and strength to strengthen intellectual property rights (IPR) protection, has good deterrent force on behaviors of leaning on a famous brand and thumbing a lift in the market, and will also further firm the right holder's confidence of operation and rights protection in China. Meanwhile, this case can also provide a reference for other similar trademark infringement and unfair competition cases.
In this case, the trademark lawyer team of Sanyou Intellectual Property Group functions as an agent of the right holder RYUKAKUSAN CO., LTD. to handle "龍の散" trademark objection, invalidation of the product packaging appearance design patent, administrative complaints as well as trademark infringement and unfair competition lawsuits.
Part of the public information from our website is from the internet. Reposting of such is intended to spread more information and promote network sharing. They do not represent the opinions or any other suggestions of our website and we are not responsible for their authenticity. Part of the works of our website, which we just edit and upload, are from voluntary contributors. Our website only serves as a communicational platform for such works and therefore bears no responsibility for any copyright issues involved. In case you find any works violating your intellectual property rights, please contact us, so that we may change or remove them in time.
All information provided is for reference only. We do not guarantee the accuracy, validity, timeliness and integrity of the information. Our website and our employees are not directly or indirectly responsible to the users or any other people in any way, for any faults, inaccuracy or errors in delivering any information. To the maximum extent permitted by applicable law, our website claims that we do not assume liability for any direct, indirect, collateral, consequential, special, punitive or exemplary damages of any user or any other person, incurred by using or failing to use any information or links provided by this website.
- Sanyou donated RMB 1 million to purchase medical supplies amid the outbreak of the Covid-19 pandemic [2021-12-13 10:54]
- Deliberate infringement of intellectual property rights and submission of abnormal patent applications will be included in the List of Severe Law-breaking Bad faith [2021-08-20 16:00]
- Press conference for the second anniversary of the establishment of the Intellectual Property Court of the Supreme People’s Court of China [2021-03-24 11:29]
- In 2020, the proportion of online trademark applications in China reached 98.05 [2021-03-12 13:16]
- The world’s five largest intellectual property offices issue statistical reports [2021-03-12 11:58]