Food company ruled to compensate 100,000 yuan for unfair competition

Finding its package of mini biscuits copied by another brand of mini biscuits, Shanghai Ezaki Glico Foods Co. Ltd. instituted a proceeding against Daheng Foods Co. Ltd. and a Mr. Chen, who was entrusted to produce the infringing biscuits. On 10 December, the Shanghai 1st Intermediate People's Court ruled that the two defendants should stop the acts of unfair competition, compensate 100,000 RMB yuan to the plaintiff and publish a statement in newspaper to eliminate the ill effects.

Shanghai Ezaki Glico Foods Co. Ltd. is a solely foreign-owned enterprise. In June 2001, approved by Shanghai Huanpu People's Government, Shanghai Glico Foods Co. Ltd., which started to produce and sell "Kaleyard Mini Biscuits," was merged by Ezaki Glico.

Zhang, legal representative of Daheng Foods Co. Ltd., worked for Shanghai Glico for three years. In June 2006, Zhang filed a patent application for the package design of "Meiweiduo Mini Biscuits," which was granted with the patent right in May 2007. On 23 August 2006, Daheng Foods entrusted Mr. Chen to produce the "Meiweiduo Mini Biscuits."

Later Ezaki Glico found that the packages of "Meiweiduo Mini Biscuits" series were similar to its packages of "Kaleyard Mini Biscuits" series. Ezaki Glico believed that the infringing packaging might lead consumers to mistake the sources of goods. Therefore, it instituted a lawsuit against the two defendants before the court.

After trial, the court held that the "Kaleyard Mini Biscuits" series had been sold in a vast area in China for a long time, so it should be identified as well-known goods. The packages of the involved two series of products were similar in the entire design as well as the layout of devices and characters. Since biscuits are fast moving consumer goods, general consumers may not pay attention to the difference in details. Therefore, the changes of particular details in the defendant's design of packages could not avoid of confusion by the customers. In addition, since the plaintiff had invested a lot in popularizing the "Kaleyard Mini Biscuits" and used the packaging style for a long time, the public might mistake the defendants' products as a new series of products by the plaintiff.

Although Daheng Foods argued that it was granted with the patent right for the design of the package, according to the court, the case should be identified as a dispute of unfair competition rising from copying the name and packaging of well-known goods. Thus the trial shall not be restricted by the design patent right. Therefore, the court made the above judgment.