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Intellectual Property and Commercial Court

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2011 Min Gong Shang Zi No. 1

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Decision No. 2011 Min Gong Shang Zi No. 1
Date November 24, 2011
Decision Highlight

1.The part which appellee asserted that appellant’s nutrition blender in dispute plagiarized the appearance design of appellee’s food processor:

(1) “Nearly identical appearance of products” and “highly plagiarize product design” are different ideas. Appellee should still provide other evidence to prove that appellant indeed highly plagiarized the design of appellee’s food processor, therefore improperly took advantage of the achievement based on appellee’s efforts, and was not complied with business competition ethics. Only then may appellant’s actions qualify as an obviously unfair conduct that is able to affect trading order. One cannot say that appellant is engaged in an obviously unfair conduct that is able to affect trading order only because the design of the container and the base of their products are extremely similar.

(2) When determining whether the appearance of goods cause substantial plagiarism and consumers’ confusion about the origins of goods, the court should consider the difference of goods as a whole and not be limited to the appearance, shape, color, and other parts of the goods. Neither should they view the goods separately by merely comparing part of the trademark or the Chinese and English descriptive text.

(3) The brand names labeled on the appellee’s food processor and the appellant’s nutrition blender in dispute are different. In addition, the parties each use their own brand name fonts, trademark icons, and descriptive text. Consumers can tell the difference between them with ordinary care. Therefore, it is unable to claim that consumers are likely to be confused.
Besides, when consumers purchase food processor and nutrition blender products, they take into consideration their budget, desired function, capacity, etc. Product appearance is merely one of these factors. And if consumers want to purchase appellee’s food processor, they would determine if the commodity was owned by the appellee by checking the trademark “○○○”, the words “Total Nutrition Center”, and other descriptive text rather than merely checking the appearance of commodity such as the shape and color of the container’s base and the arrangement of the buttons. On the other hand, referring to the usage and function of goods, most of the consumers who want to purchase food processors or nutrition blenders would have some understanding towards the material and function of the blender’s motor speed, steel blade, container and its lid to a considerable extent. Therefore, one can easily differentiate between their function through the advertisement or descriptive text of commodity without the likelihood of confusion. Therefore, the appearance design of appellee’s blender is not an important factor of the performance and origins of goods, and is not a motivation for consumers to purchase.
In addition, when consumers purchase appellee’s food processor or appellant’s nutrition blender, appearance design is not the only factor for consideration. Consumers also consider their budget, desired function, capacity, etc. After taking into consideration text, trademark icons, and advertisement or product introduction on goods, there would be a slim chance of causing confusion.

2.The part which the appellee claims that the appellant engaged in positive conduct to be a free rider by clinging to their goodwill intentionally:

From the way the appellant struggled to establish their own brand, their marketing advertisement put emphasis mainly on the structure and performance of the nutrition blender in dispute rather than the appearance design that is similar to the appellee’s food processor. After reviewing the appellant’s behavior, the court considers that the appellant has clearly revealed important transaction information for consumers to decide whether they want to purchase the nutrition blender in dispute or not.

As previously noted, the appearance design of the appellee’s food processor did not have any conspicuous part or specialty. Consumers can differentiate the commodities of the two parties from the brand, informative text, and performance. Therefore, the appellant did not cling to appellee’s goodwill to gain publicity for himself and lead appellee to be trapped in a comparatively unfair competitive position, which is able to affect the trading order.

The appellee did not prove that the appellant highly plagiarized the appearance design and advertisement of the appellee’s blender. Therefore, one cannot say that the manner the appellant had conducted, including the design and advertisement of disputed nutrition blender, has caused the number of appellee’s consumer to decline or to lose transaction opportunity.

In addition, one is unable to claim that appellant attempted to make consumers mistake that the disputed nutrition blender has the same quality and effect as the appellee’s food processor, which leads to an increase in the sales volume of the disputed blender.

Keywords

Highly Plagiarize Appearance Design, Confusion, Obviously Unfair, Free-riding

Relevant statutes Article 24 of the Fair Trade Act (amended and promulgated on February 4, 1991 )
  • Release Date:2020-11-13
  • Update:2020-12-07
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