Trademark infringement case against SIEMENS dismissed

Recently the owner of the Chinese mark "BIOFRESH," a foreign company established in Germany, instituted a proceeding against BSH Home Appliances Co. Ltd., Jiangsu BS Home Appliances Sales Co. Ltd. and Shanghai Gome Electrical Appliances Co. Ltd. for trademark infringement. According to the plaintiff, the defendants used the word "BIOFRESH" on their SIEMENS refrigerators. The Shanghai 1st Intermediate People’s court dismissed plaintiff's claims at the first instance.

The plaintiff registered the mark "BIOFRESH" in China, covering cooling appliance and refrigerating appliance in class 11. The two defendants are manufacturer and distributor of SIEMENS refrigerators in China. The plaintiff bought, at a store of Gome Electrical Appliances Co. Ltd., a SIEMENS refrigerator which bore a representation of "Bio Fresh" that is identical with the plaintiff's registered mark. The plaintiff requested the defendants to stop the infringement, make an apology and compensate for its loss. BSH Home Appliances and Jiangsu BS Home Appliances Sales argued that their use of the representation "Bio Fresh" should be identified as fair use, instead of trademark infringement. The defendant Shanghai Gome argued that, as a retailer of the refrigerators, it should not bear the civil liability for infringement.

The court found that there were representations of "Bio Fresh" on the inner board of the refrigerating cabinet and the packaging box of the refrigerator. However, next to the representation "Bio Fresh," the defendants prominently used the trademark representation of "SIEMENS" and "生物保鲜" - the Chinese explanation of "Bio Fresh." In addition, the trademark representation of "SIEMENS" was also obviously used on the outer board of the refrigerator and the packaging box. The court held that the defendants fairly used the words "Bio Fresh" to describe the feature and function of the product, which would not mislead the consumers to confuse the source of the product. Therefore, the court dismissed the plaintiff's claims.