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Intellectual Property and Commercial Court


2014 Xing Zhi Shang Su Zi No. 58

Decision No. 2014 Xing Zhi Shang Su Zi No. 58
Date January 14, 2015
Decision Highlight

A.Trademark has functions of expressing the source of commodity and assuring quality. It means that the function of trademark is to distinguish the commodity or service from others. And for the customers of the commodity or service, trademarks can help them distinguish the different sources of commodity or service before deciding which one to purchase. Excluding the proprietor, when a third party uses a trademark, it may cause confusion to relevant customers of commodity or service as well as misidentification of the sources, which means that the customers cannot distinguish sources of commodity or service by the trademark. In such case, the third party’s use of the trademark should be prohibited.

B.The defendant printed plaintiff’s trademark on the package of his medicine merchandise. However, all of the drugs sold by the defendant are genuine drugs manufactured by the plaintiff. The defendant did not process, modify or change those drugs and still sold them as genuine drugs manufactured by the plaintiff. The defendant used the image of the trademark without the intent of infringing upon the plaintiff’s trademark in subject. And considering the function of trademarks, according to the trading common sense, customers can know that the drugs are manufactured by the plaintiff by the image of the drug packing box. So it is unlikely that the customer’s interest is damaged from misidentification of the commodity’s sources, or the license’s business reputation of the plaintiff be injured. In other words, the defendant did not offend the trademark act.


Function of trademark, source of commodity distinctiveness

Relevant statutes Article 62 of the Trademark Act (amended and promulgated on August 25, 2010)
  • Release Date:2020-11-13
  • Update:2020-12-03