Protection of well-known goods with special packaging and decoration

First, the characteristics of the packaging and decoration of goods

Commodity packaging is used to identify goods and to facilitate carrying, storage and transportation of goods used on the goods and containers; commodity decoration is to identify and beautify the goods in the goods or its packaging on the additional text, patterns, colors and their arrangement. Commodity packaging and decoration, like trademarks, belong to the category of intellectual property.

Compared with other commercial signs, the packaging and decoration of goods generally have the following characteristics:

First, the packaging and decoration of goods generally reflect the contents of the goods in an intuitive manner, reflecting the specific external appearance of the products. For example, mooncakes can be directly used on the packaging of mooncakes. The decoration of soap can directly highlight “nourish the skin”. Word

Second, the packaging and decoration of merchandise must be decorated with aesthetically pleasing patterns, colors, and shapes to embellish merchandise, beautify merchandise, and promote merchandise. It does not need to be distinctive, as long as it can achieve the purpose of promoting sales and purchases. This is in line with trademarks. Most differently, a trademark should be identifiable and distinctive, such as the congratulations to the new sign and the blessing character, and some folk symbols that are auspicious. Although it is not suitable for use as a trademark, it can still be used as a product packaging and decoration text;

Third, the packaging and decoration of goods is generally not exclusive and exclusive (except for well-known goods). Other people cannot use the same or similar packaging and decoration, because the text and graphics on the packaging and decoration of goods are generally not Mainly in terms of distinctiveness, its packaging and decoration is only apparent from a single dominant loss;
Fourth, the packaging and decoration of merchandise can be changed at any time as the market needs, and has greater flexibility.


II. Protection of peculiar packaging and decoration of well-known commodities in practice

Well-known commodities are commodities that have a certain reputation in the market and are known to the relevant public. The identification of well-known commodities currently does not have a uniform standard and can only be discretionary in the specific case by the judicial authorities. Article 4 of the “Provisions on the Prohibition of Counterfeit Competition on the Names, Packaging, and Decoration of Precious Bomber Products” promulgated by the State Administration for Industry and Commerce (Order No. 33) stipulates that the name, packaging, and decoration of goods are arbitrarily made by others. If the same or approximate use is enough to cause the purchaser to misidentify, the product can be identified as a well-known commodity. What is certain is that the recognition of well-known goods in tort is not isolated, but is closely linked with counterfeiting. If there is no counterfeiting problem, it is meaningless to identify well-known commodities; if counterfeiting occurs, it causes misidentification of the buyer and does not identify well-known commodities, and the result can only be the unfair competition in the market. The packaging and decoration of well-known commodities reflect the business reputation and reputation of the business operators to a certain extent and should be strictly and extensively protected in the law. The second paragraph of Article 5 of the "Anti-Unfair Competition Law" promulgated in 1993 stipulates that unauthorized use of names, packaging, and decorations unique to well-known commodities, or similar names, packaging, and decoration of well-known goods, will result in well-known goods of others. Confusion, so that buyers mistakenly believe that the behavior of the well-known goods is unfair competition, which provides a favorable legal basis for the protection of the packaging and decoration of well-known goods.


Case I: From 1993 to 1996, the “cat shape clock” produced by Guangzhou Dongfang Mould Co., Ltd. used the “GARFIELD” brand cat-shaped clock similar to that used by the United States Bowes Co., Ltd., which was similar to the external packaging of goods. At the end of 1996, Bowes filed a complaint with the Guangzhou Administration for Industry and Commerce. For this case, the Guangzhou Municipal Administration for Industry and Commerce held that the behavior of the Oriental Company constituted unfair competition as stipulated in Article 5, Paragraph 2 of the Anti-Unfair Competition Law, and it had collected the infringing packaging and imposed a fine.


Case 2: Guangzhou Liwan District Hongdian Power Generator Store purchased 100 "k&k" brand microphones specially decorated by the "SHURE" brand microphones from Sumou at the request of its customers. It is ready for sale and has not been sold yet. The Municipal Administration for Industry and Commerce was seized on December 19, 1996. The Guangzhou Municipal Administration for Industry and Commerce believes that the behavior of the Hong Power Generator Store constitutes unfair competition under Article 5, Paragraph 2 of the Anti-Unfair Competition Law, and orders the parties to stop the illegal act and eliminate the infringing decoration.

In the first case, the "GARFIELD" cat-shaped clock belongs to the well-known brands in the watch industry, and its unique packaging should be protected. In the second case, the act of counterfeiting the unique decoration of a well-known commodity took place in the sales process, and there was a certain distance from the manufacturer’s direct counterfeiting of the decoration of the well-known commodity. From these two cases, it can be seen that there are several points worth noting in the packaging and decoration of goods protected by the Unfair Competition Act:

1. This product is a well-known commodity.
Judging whether a product is well-known or not, it needs to be examined in the relevant public, and it should be determined based on factors such as the sales area, time, reputation, and advertising volume of the product. In general, judging trademarks from different sources of goods is the main object of judging whether a product is famous or not. The higher the brand awareness, the higher the visibility of the product that marks the trademark.

2. The package and decor are unique to the product and have significant distinctive features. The packaging and decoration are not commonly used by related products, such as the cat's appearance in the first case. From a legal point of view, the design of the packaging and decoration of products is limited to "non-functional design". Packaging and decorating, like other packaging and decorating, have no effect on the use of the product and therefore do not evolve into a general packaging for related products. At the same time, this kind of packaging and decoration should be significant. Because of its significance, it has played a certain role in identifying the source of the product and it is meaningful to protect it.

3. The packaging and decoration did not apply for a registered trademark, nor did it obtain a design patent.
Once its packaging and decoration become a registered trademark, it is directly protected by the Trademark Law. If a patent is granted, it will be protected by the Patent Law.

4. Unauthorized use of packaging and decoration specific to well-known products, including the unauthorized use of producers and the unauthorized use of sellers, should be treated differently.

The peculiar packaging and decoration of counterfeit goods mainly occurs in the production process and is relatively easy to determine. A small amount of infringement took place in the sales process, as in the second case where the seller had used the decoration of others without authorization. In general, the liability for infringement of the packaging and decorating of a particular well-known commodity is not based on the intention of the actor. However, the seller’s unauthorized use should take into account its subjective knowledge or knowledge. In this regard, Article 9 of the “Provisions Concerning the Prohibition of Counterfeiting of Unfair Competition in the Name, Packaging, and Decoration of Prestigious Precious Goods” stipulates that sales shall be punished commensurately if they knowingly know or know that it is counterfeiting a commodity that is unique to a well-known commodity.

5. The peculiar packaging and decoration of counterfeit goods really caused misunderstandings and confusion.

Counterfeiting is an unfair competition behavior. It is because of its market confusion effects that the Anti-Unfair Competition Law regulates it. However, how to judge whether it has caused confusion or not, our country’s laws have no express provisions, and they need the judicial authorities to handle individual cases. According to Article 2 of the “Provisions Concerning the Prohibition of Counterfeit Competition on Names, Packaging, and Decoration of Prestigious Well-known Commodities,” the provisions of the preceding paragraph erroneously consider the purchaser to be a well-known commodity, including enough to make the buyer mistakenly believe that it is Well-known goods. That is, misrecognition of behavior as long as it reaches the "possible" point, it can be found to confuse the consequences.

Third, the protection of existing legislation in China

China currently only provides protection for the unique packaging and decoration of well-known commodities in the "Anti-Unfair Competition Law." Although "prestigious" and "exclusive" have been further stipulated in the judicial interpretation, they have all been ambiguously interpreted, making The administrative authorities for industry and commerce must make it difficult to determine the infringement during inspections, because the packaging and decoration of general merchandise is not protected. To confirm the infringement, it must first be determined that the counterfeited goods are well-known goods, and the packaging and decoration are unique. Not generic and so on. Of course, well-known commodity owners can apply for patents for packaging and decorating that meet the design patent conditions, but they can only protect for ten years.

Foreign trademark laws often contain a registration system for three-dimensional trademarks, which allows owners of well-known goods to register their unique packaging and decorations for active protection and prior protection. China now only accepts the registration of flat logos. Although some text and graphics on packaging and decorating can be registered as trademarks, the owners of well-known goods cannot do anything about the overall packaging and decoration. When the legislature revise the "Trademark Law" again, it should consider adopting three-dimensional trademarks to protect the unique packaging and decoration of well-known goods.

Beijing Technology and Business University Law Department Liu Ruini