Hong Kong Eight Minute International Detergent Group Limited, v. SiPing Joint General Chemical Plant China Chemical etc for infringement of trademark

Supreme People's court of the People's Republic of China

Paper of Civil Judgment

(1999) Zhi Zhong zi NO.13

The Appellor (Plaintiff in the original trial): Hong Kong Eight Minute International Detergent Group Limited, company-Residence: NO.16 RM. C ZhongWang Commercial Affairs Center 414-412 Jaffe Road Tung Lo Wan Hong Kong SARs PRC.

The Legal Representative: Xianggui Chen, Chairman of the board of the company.

The authorized proxy: Xuexin Sun, lawyer at Legal Aid Center in Si Ping city.

The authorized proxy: Fusheng Liu, lawyer from Beijing Beidou Law Office.

The Appellee (Defendant in the original trial): SiPing Joint General Chemical Plant China Chemical, Residence: NO.171 ER MA Road North Tiedong district SiPing city Jilin province.

The Legal Representative: Junhai Bao, director of the plant.

The authorized proxy: Sihai Bi, Counselor at the plant's law office.

The Appellee (Defendant in the original trial): JinPing Detergent Industry Ltd of SiPing city, Residence: NO.171 ER MA Road North Tiedong district SiPing city Jilin province.

The Legal Representative: Yuping Wang, Chairman of the board of the plant.

The authorized proxy: Jianping Chen, Instructor from Siping Judical Cadre School.

The authorized proxy: Wenyao He, Instructor from Siping Judical Cadre School.

The Plaintiff in the original trial: ChuangYi company of ZhaoYuan county in DaQing city, Residence: under the resident building of Industry and Business Bank in ZhaoYuan county HeiLongJiang province.

The Legal Representative: Xianggui Chen, Chairman of the board of the company.

The authorized proxy: Run Meng, lawyer of YangXin law office in SiPing city.

The case of illicit competition which involved ChuangYi Company of ZhaoYuan county in DaQing City (ChuangYi company for short), Hong Kong Eight Minute International Detergent Group Limited (Eight Minute company for short), SiPinf Joint General Chemical Plant China Chemistry (Joint General Chemical Plant for short) and XinPing Detergent Industry Ltd. (XinPing company for short) was originally judged by Higher People's Court of JiLin Province on Apr 9 1999. The judgment is Civil Judgment NO.83 Economy Case (1998) Chu Zi. Refusing to accept the judgment of the trial, Eight Minute company lodged an appeal to Supreme People's court of the PRC. The collegiate panel was set by law to trial the case. Now the case is finalized.

The following facts are identified in the initial trial: Xianggui Chen, the legal representative of ChuangYi company and Eight Minute company, had cooperated with Joint General Chemical Plant in producing laundry powder whose band was "Eight Minute" from December of 1992 to Dec of 1994.On Jan 18 1995 Xianggui Chen signed an agreement on the right of use of the laundry powder trademark "Eight Minute" with Joint General Chemical Plant. The agreement stipulates that the laundry powder trademark of "Eight Minute" can be used only by Joint General Chemical Plant and can not be transferred to any others by Xianggui Chen.The trademark, which is used on the laundry powder and is a combination of the text "BA FEN ZHONG" and the digit "8", was registered with State Trademark Bureau by Modern Ltd of ZhaoDong city whose legal representative is Xianggui Chen on Sept 21 1995.And also the trademark, which is a combination of the text "SiLian 118" and the digit "8" and is used on the laundry powder, was registered with State Trademark Bureau by Joint General Chemical Plant on March 14 1996.On Jan 28 1997 ChuangYi company, as the first party, signed an agreement on the producing and marketing cooperatively "don't worry" and "Eight minute "brand laundry powder with Joint General Chemical Plant as the second party. It stipulates: the first party is responsible for providing small plastic package and outer packing box for "Don't worry" and "Eight Minute" brand laundry powder, having the text of "Under the supervision of the Hong Kong Eight Minute international wash Group Limited company and produced by SiPing Joint General Chemical Plant China Chemistry" printed on inner or outer packages of the processed laundry powder, making great efforts to sell the laundry powder; The second party is responsible for: producing laundry powder according to the standard and formula provided by the first party, The cooperative period of time is from Jan 1 1997 to Dec 31 1997; Another agreement should be signed after the expiration of the agreement if both sides continue to cooperate, otherwise the second party could no longer use "Don't worry" and "Eight minute" brand as well as those brands which are similar to these two. The second party would pay the first party 50,000,000 RMB yuan if the second party did so. Eight Minute company began to produce the second generation of "Eight Minute" brand enzymatic laundry powder in Aug 1997. And Joint General Chemical Plant began to produce the second generation of "118" brand high-quality enzymatic laundry powder in Jan 1998. The registered trademark of "BA FEN ZHONG" was assigned to Eight Minute company on Jul 28 of the same year.On Sept 22 of the same year Yuping Wang signed a leasing contract with Joint General Chemical Plant to take a lease on detergent plant affiliated to Joint General Chemical Plant (also called Synthetic Detergent Branch Plant of SiPing Joint General Chemical Plant China Chemistry - Synthetic Detergent Branch Plant for short). The lease term is 10 years. Yuping Wang made statements whose contents are almost the same over SiPing TV station and JiLin TV station on Oct 5 and OCT 7 of the same year respectively. The statements contents are as follows: "The Synthetic Detergent Branch Plant of SiPing Joint General Chemical Plant as a nation's large first-class enterprise solemnly declares: our plant has stopped producing original "Eight Minute" laundry powder and would not assume any responsibility for it if any questions arose. In order to express our appreciation for customer's kindness, a series of laundry powder headed by "118" with brands such as "TianChi" and "HanXiao" will be put onto the market on the occasion of the 40th anniversary since the foundation of the plant and a large-scale compliment activity will be held in Nov. The original copy of the statements is with the Joint General Chemical Plant and its Synthetic Detergent Branch Plant's seal on it and bears the signature of "the chairman of the board: Yuping Wang". During the period from Oct to Nov in the same year, Yuping Wang sent people to give out advertising leaflets entitled "An notification from the Synthetic Detergent Branch Plant of SiPing Joint General Chemical Plant China Chemistry to all customers" in SiPing city and Ha Er Bin city. The leaflet says: To make it known to numerous customers that our plant has stopped producing original "Eight Minute" laundry powder and would not assume any responsibility for it if any questions arose...". A private Limited company - ChaPing company was established on Oct 14 1998 with Yuping Wang as its chairman of the board. In Nov of the same year XinPing company distributed advertising leaflets in areas such as Liao Ning province and Ba Zhou area of He Bei province in the name of its own company and Synthetic Detergent Branch Plant. The leaflets' contents are as follows:"...Our company has stopped producing "Eight Minute" laundry powder and would not assume any responsibility for it if any questions arose..."

On Nov 4 1998 ChuangYi company and Eight Minute company instituted legal action against Joint General Chemical Plant and its Synthetic Detergent Branch Plant for illicit competition based on the following facts: Joint General Chemical Plant and its Synthetic Detergent Branch Plant has been fraudulently copying the packing and packaging of the plaintiff' small plastic package and outer package box for "Eight Minutes" brand laundry powder and has been producing "118" high-quality enzymatic laundry powder whose name is similar to "Eight Minute" enzymatic laundry powder since the agreement between Joint General Chemical Plant and ChuangYi company expired on Jan 28 1997. Such behavior resulted in customer's confusion and mistaking about the two goods; the defendants defamed the plaintiff's commodity repute for "Eight Minute" laundry powder by making statements over TV stations and distributing advertising leaflets, thereby constituting illicit competition. The plaintiff asks for a judgment from the court to make the defendants: first, paying the two plaintiff 50,000,000 RMB yuan for their fraudulently copying the packing and packaging of the plaintiff's well-known "Eight Minute" enzymatic laundry powder; and secondly, rehabilitating the two plaintiff's reputation, eliminating ill effects and making a formal apology over the corresponding TV stations as a result of the defendants' defaming the plaintiffs' commodity repute in the advertising, thirdly, bearing all the costs needed to investigate their illicit competition and to bring a legal action. The two plaintiffs made a request later to add XinPing company as a defendant to the case for distributing infringing leaflets on Nov 20 1998. The claim is the same as the original one. The court of first instance decided to add DongPing company as a defendant to the case on Nov 24 of the same year and listed Joint General Chemical Plant, XinPing company as defendants in the written judgment of first instance. The two plaintiffs modified their compensation claim to 20,000,000 RMB yuan on Apr 5 1999 when the first trial was in process.

The court of first trial believed: first, both the trademark of the second generation of "118" high-quality enzymatic laundry powder produced by the defendants, Joint General Chemical Plant and XinPing company, and "Eight Minute" enzymatic laundry powder produced by the plaintiffs, ChuangYi company and Eight Minute company are all registered with State Trademark Bureau. For "118" laundry powder, its packaging highlights "118", "high-quality enzymatic laundry powder" and "the brand-new second generation", whereas "Eight Minute", "clean just by soaking" and head portrait are highlighted on the packaging of "Eight Minute" laundry powder. As there is not resemblance between the main part and the overall image attached to the inner or outer packages used for the two brand laundry powder, Ordinary customers do not need to pay special attention to distinguish them without any confusion and mistaking. "clean just by soaking" is just a description of the basic commodity property and the two plaintiffs does not own the exclusive right for it, the two defendants' behavior did not constitute illicit competition act of fraudulently copying name, packing and packaging belonged to a brand commodity. Moreover, "brand" refers to commodity trademark. Therefore, the Court would not sustain the compensation claims of 20,000,000 RMB yuan by the two plaintiffs. And secondly, for the advertising leaflets distributed jointly /separately by the Joint General Chemical Plant and XinPing company and the statements made over SiPing TV Station and JiLin TV station, there is no fabricated and misrepresented facts, as well as misleading and false propaganda it judged by its contents. In fact, it is true that Joint General Chemical Plant and ChuangYi company once produced cooperatively "Eight Minute" laundry powder. Therefore the two defendants' marketing activities did not constitute illicit competition act prescribed in Law of the People's republic of China on Anti-Unfair Competition. Pursuant to Article 2,Item 2 of Article 5,Article 9 and Article 14 of Law of the People's republic of China on Anti-Unfair Competition, the court judged: reject the claim made by ChuangYi company and Eight Minute company; The two plaintiffs bear the court acceptance fee of 110,000.

Refusing to accept the above judgment of the trial by Higher People's Court of JiLin Province, Eight Minute company lodged an appeal to Supreme People's court of the PRC declaring: first, breaching of procedural law. Besides the two appellees, defendants impleaded by the plaintiff in the initial trial also included Synthetic Detergent Branch Plant. As a workshop of the Joint General Chemical Plant, its right and obligation should not equal to that of DuoPing company. it was omitting listing party that the Judgment of the initial trial did not have Synthetic Detergent Branch Plant listed as defendant without any explanation. Second, the initial judgement wrongly recognized facts. 1. The inner and outer packing as well as the letters, graphics and arrangements that compose packaging used on the appellee's the second generation of 118 High-quality Enzymatic Laundry Powder are all most the same as or similar to those of appellant's the second generation of Eight Minute Enzymatic Laundry Powder. There is more similarities than differences between them, and the main parts of the packagings used by the two sides are approximate in general. They are: (1) The shape and size specifications of the inner and outer packaging used by the two sides are identical. (2) All the colors used on the inner and outer packagings of the two sides are red, yellow, blue and white and they are arranged in a similar way ; There is little difference in the layout of the letters in which the fonts and size are the same or similar; They both adopted the same expressions such as "International aroma style", "Generation 2", " Enzymatic" and "6 - 8 pieces of common clothings"; And they used the same advertising words "clean just by soaking", even the color are all arranged from yellow to red; 118 laundry powder adopted the water rings, bubbles and S-shaped steam pictures used on the packaging of Eight Minute laundry powder; the seal of the outer packaging of 118 laundry powder completely imitated the color blocks and their distribution which are peculiar to Eight Minute laundry powder.Appellee's imitating behavior had led to consumers' mistaking or confusing on the market. The testimony given by Qing Yang, Li Li and Liguo Wang can serve as evidence. 2. Being first used by Eight Minute laundry powder and having been used for a long time, "clean just by soaking" has become a advertisement work. The appellee plagiarized these words on the inner and outer packing. The special feature of soaking without washing is peculiar to only Eight Minute laundry powder. The initial trial confused soaking with washing and regarded wrongly "clean just by soaking" as an essential feature of all laundry powders, so the cognizance is not proper. 3. The contents of appellee's advertising leaflets and TV statements not only made people misunderstand, but also bring serious aftereffects to the appellant. Especially the advertisement words of "Our plant has stopped producing the former Eight Minute laundry powder and would not assume any responsibility for it If any problems arose. " will inevitably make people misunderstand that Eight Minute laundry powder was stopped producing because of problems, and if appeared again on the market, it must be fake and inferior. The television statements would also make people believe that Eight Minute laundry powder would be replaced by a better one - 118 laundry powder. These advertisement propagating depreciate, denigrate and damage appellant's commodity reputation. The testimony of the ten people including Junshang Ma, Lijuan Zhao and Li Li demonstrated that it has already objectively resulted in consumers' misunderstanding and the downfall of appellant's sales. Third, the compensation involved in this case should be grounded on the agreement between ChuangYi company and the Joint General Chemical Plant signed on January 28,1997,and the appellee will bear the cost 13462.30 RMB Yuan spent by the appellant to investigate the illicit competition behavior of this case. In a word, the appellee infringed term 2 of Article 5,Articl 9and Article 14 of Law of the People's republic of China on Anti-Unfair Competition, thereby constituting illicit competition. The initial judgment is requested to be withdrawn and the case should be sent back to judge again or to change the judgment according to law. On April 10,2000,the appellant submitted a written application again, requesting to be given 30 days to complement quote, but no new evidence was supplied until now.

The appellee, the Joint General Chemical Plant, didn't submit pleadings on schedule. During the trial period in this Court the appellee brought forward pleadings saying that: First, 118 laundry powder and Eight Minute laundry powder are two distinguishable commodity brand, and they can't be confused at all, not to mention imitating. The names, inner and outer packing and packaging of the two sides are apparently different: 118 is a combination of Arabic numerals, and the original connotation means "getting rich", while Eight Minute is a kind of noun representing time; "International aroma style", "Generation 2", "Enzymatic" and "6 - 8 pieces of common clothes "and so on belong to product introduction and must be apparently showed to consumers on packaging according to law; packing box specification, seal piece are required by national standard; "Clean just by soaking" is a advertisement word in common use, and there was "Clean just by soaking and rinsing "on the packaging of 118 laundry powder produced in 1996. The expressions "soaking" and "Just Clean" was adopted earlier by the Joint General Chemical Plant and there was no such expressions on the packaging of Eight Minute laundry powder produced by the two sides during their cooperation period. Second, the advertisement propagating of the Joint General Chemical Plant shouldn't be prosecuted. The Joint General Chemical Plant had ever produced Eight Minute laundry powder. In the situation of not producing it, the advertising was a legal self-protecting measure to prevent the reputation of the Joint General Chemical Plant from being utilized by someone to cheat consumers. It did not mean that Eight Minute laundry powder was a product that may go awry. Whether the appellant suffered economic loss or not has nothing to do with it. In a word, the appeal is requested to be rejected, and the initial judgment is requested to be maintained.

The appellee, XinPing company, did not submit pleadings on schedule neither. During the trial period in this Court, its pleadings say that: First, the procedure of the initial trial of this case is within the law. Synthetic Detergent Branch Plant is a internal department of the Joint General Chemical Plant,so it is not qualified to be a enterprise juridical person. Changing one of plaintiffs into XinPing company in the initial trial conformed with the prescription of law. Second, since the establishment of XinPing company, its inner and outer packing of 118 laundry powder produced in the name of the Joint General Chemical Plant hadn't imitate the packing and packaging of other products; The advertising leaflets emanated in the name of Synthetic Detergent Branch Plant before the establishment of the company neither faked nor spreaded false fact. 1. The inner and outer packing as well as packaging of the two sides are quite different in the main feature of letters and graphics. The main part and the integral image are all not similar. These includes: (1) The two sides all printed their respective registered trademarks obviously; the front of the packing of 118 laundry powder outstandingly indicated the three Arabic numerals "118" in bold and identified solemnly "Nation's large first-class enterprise - SiPing Joint General Chemical Plant China Chemistry " as manufacture plant in black. There are many literal samples "118" in different places, and there is no human head figure. The main contents of the packaging is enough for consumers to distinguish it from other products under normal circumstance. (2) "Clean just by soaking" explains the using method and the effect of laundry powders; "International aroma style" means the essence type used by laundry powders, and some other literal explanation are also required by national standard. 2. The Appellee's advertisement propagation is on one hand a behavior that performed its obligation to inform consumers the fact that it really had stopped producing Eight Minute laundry powder, and on the other hand propagated its own 118 series laundry powder. Its contents are true, not false, and did not depreciate and denigrate other products of the same kind, so it would not definitely lead to misunderstanding. 3. The appellant accused the appellee of imitating and denigrating. The accusation is logically contradictory. If you imitate a product, you would not denigrate it; if you denigrate a product, you would not imitate it. Third, the appellant's demanding for a compensation of 20,000,000 RMB Yuan doesn't have any grounds, and its aim is to enhanced its fame through large amount money case litigation. As to the investigating fee advocated by the appellant, because the tickets and certificates of board and lodging fee as well as traffic fee and so on had been taken in to account in the enterprise cost of 1998 of ChuangYi company so these evidences have neither correlativity nor objectivity with this case. In a word, the appeal is requested to be rejected, and the initial judgment is requested to be maintained.

The plaintiff in the initial trial, ChuangYi company had submitted appealing plaint along with the appellant, but retracted it before this Court decided to accept and hear this case for the reason of being unable to afford the appealing fee. This Court regard it as not appealing. In addition, it hadn't submitted any other written statements, however it is still considered that it enjoys the same right as that of the appellant during the court trial.

This court ascertained after hearing that the facts ascertained in the original trial is true. The litigant did not lodge an objection against the facts. Also ascertained that: The former Eight Minute company was Three Minute Cleaning Group Inc., which was registered by Xianggui Chen in Hong Kong on October 18 1994, and the former name was changed to the existing one on May 16 1996. The cooperation between Xianggui Chen and the Joint General Chemical Plant during the period from December 1992 to December 1994 was one that Xianggui Chen authorized the Joint General Chemical Plant to produce Eight Minute laundry powder. Thereafter, Xianggui Chen also permitted the Joint General Chemical Plant to use "Eight Minute" as its trademark. From July 1997, the Joint General Chemical Plant no longer produced Eight Minute laundry powder. The second generation of laundry powder with enzymatic was produced by Synthetic Detergent Plant of Heilongjiang Province, which was entrusted to produce the laundry powder by Eight Minute company. ChuangYi company didn't involved in the production. Yuping Wang continued to produce the second generation of 118 high-quality enzymatic laundry powder after his renting the Synthetic Detergent Branch Plant and DuoPin company's establishment all in the name of the Joint General Chemical Plant. The sales of Eight Minute laundry powder went up steadily since 1992, and the name of the laundry powder gained high reputation among consumers in Northeast region of China. "Series advertisement of Eight Minute laundry powder", which was advertised by Eight Minute company, was granted the honor title of "Jilin province credible advertisement in 1998" by the Administration for Industry and Commerce of Jilin province and the Advertisement Association of Jilin province on December 23 1998; BA FEN ZHONG brand Eight Minute laundry powder was granted the title "Consumer Satisfying Product of Jilin Province" by Consumer Committee of Quality Management Association of Jilin province on December 15 1998. From October 1998, the sales of Eight Minute laundry powder went down obviously in some regions, such as Northeast areas of China and Bazhou region in Hebai province. Eight Minute company paid 13,462.30 RMB yuan spending such as board and lodging and trafficking for the investigation of the illicit competition of this case.

In addition, this court ascertained that the size, specification and material of inner packing bag and outer packing box of the second generation of Eight Minute enzymatic laundry powder of the appellor and the second generation of 118 high-quality enzymatic laundry powder of the appellee are identical. Both sides took newly-designed packaging on the inner and outer packing respectively, which are differed from that of the original ones. The contents of the packaging shown by the inner packing bag and the photograph of outer packing box of both sides are as follows:

1. The inner packing bag: (1) The packaging color used by the appellor consists of red, yellow, blue and white. The background patterns of front view and rear view are all a blue water circle with ripples and a blue S-shaped steam on the upper part. In the middle part of the front view there are words such as "Eight Minute enzymatic laundry powder", where "Eight minute" is in red and in special large "song" font, and "clean just by soaking " in red large bolded "kai" font with its trademark on the upper left part; On the left side of the upper pattern there are head portrait of Xianggui Chen, his signature, business title and the name of the appellor, on the right side there are words such as "clean just by soaking "in large italics, whose color ranges from yellow at the top to red at the bottom, "registered trademark, the only one in China" and "international aroma style"; On the right side of the bottom there are words such as "second generation", "soaking for just 8 minutes and the dirt goes without any trace". The upper pattern of the rear view is the same as the front one except that the contents of the right part and the left part exchanged . On the left side and right sides in the middle part of the pattern there are words "Eight Minute" in red large font and the graphic of "8" which is a part of its registered trademark; On the left side in the lower pattern there are some illustrations such as usage and dosage, and literal description, on the right side there are product description in Chinese and English as well as information about the producer. (2) The packaging colors used by the appellee largely consists of red, yellow, blue and white. The background pattern of the front view is a blue water swirl, and the background pattern of the back view is in pure blue. In the middle part of the front view there are word "118" in red special large italics with yellow circle as its background. There are Chinese pinyin "YIYIBAXIYIFEN" above the word "118", bellow are "high-quality enzymatic laundry powder", and on the left upper part of the word "118" marked by its trademark; On the left side of the upper part of the front view there are words "clean just by soaking" in large xinyi font, whose color change from yellow at the bottom to red at the top, and the upper corner on the right there are words "Every household has 118 and will be lucky", "international aroma style"; In the bottom there are words "the brand new second generation" and "Nation's large first-class enterprise SiPing Joint General Chemical Plant China Chemistry". The top pattern of the rear view is the same as that of the front one; In the lower middle on the left there are product description both in English and Chinese and the information about the producer, on the right are some illustrations such as usage and dosage, literal description and commodity stripe code.

2. Outer packing box: (1) The packaging colors used by the appellor consists of red, yellow, blue and white. The background pattern of the six facet view are the same blue S-shaped steam . The main view is the same as the rear view. The words "Eight Minute laundry powder", where the characters "Eight Minute" are written in red special large "song" font, "Clean just by soaking" and the name of the appellor are written in the order from top to bottom and from large font to small font; In the upper corner on the right are words "international aroma style". Both side views are the same. On the left half part of the side view is the same as the front pattern of the inner packing bag. The words "soaking for just 8 minutes and the dirt goes without any trace", which are arranged in two columns, are on the right half part and in large font, red color. The words "the second generation", the name of the producer and product introduction are also on the right half part. Top view and bottom view are the same. There are "soaking for just 8 minutes and the dirt goes without any trace" on both views, which are in large font, red color and arranged in two columns; On both sides of the seal are strips formed by purple, yellow, blue, green, red color blocks with white color block in between, each color block has words "use and drop". (2) The packaging colors used by the appellee largely consists of red, yellow, blue and white. The background pattern of the six facet views are the same, each one has two blue water circles with ripples. The main view and rear view are the same. The contents are mostly similar to its front view of the inner pacing bag, only the picture and text on the upper part and words "the brand new second generation" on the lower parts do not appear. In addition, its commodity stripe code are on the upper right corner. The two side views are the same. the upper parts are the same as that on the front view of its inner packing bag. the words "the brand new second generation" are on the lower right part. the introduction to the producer and product is in the middle part. There are words "Clean just by soaking makes each family happy", which are arranged in two identical columns in large font and in red color on the top view; The words "Si Lian 118", which are in special large font, red color and arranged in two identical columns, are on the bottom view; On both sides of the seal are strips formed by red, yellow, green, purple color blocks with white blocks in between. Each color block has words "use and drop".

This court believed that the major problems in this case are : the qualification issues of the subject of action and the subject of civil right of the litigant; whether the appellee has behavior of fraudulently copying the title, packing and packaging of brand commodity ; whether the advertising behavior of the appellee is a phonily advertising behavior and a behavior that defamed the other commercial credit; who should bear the civil liability on illicit competition behavior and how to bear it.

First, the qualification issues of the subject of action and the subject of civil rights of the litigant. The appellor advocates that the Synthetic Detergent Branch Plant should be considered as the appellee according to its claim, but it failed to adduce evidence to prove that what kind of business license the Synthetic Detergent Branch Plant holds. The appellor also considers that the Synthetic Detergent Branch Plant is one plant of the Joint General Chemical Plant. And the Joint General Chemical Plant does not deny that the Synthetic Detergent Branch Plant is one of its internal departments. Hereby, the Synthetic Detergent Branch Plant should be considered neither as enterprise juridical person nor as the branch department that holds business license established by the Joint General Chemical Plant. The Synthetic Detergent Branch Plant does not has the qualification for the subject of action, so the Joint General Chemical Plant should bear the corresponding civil liability. The verdict of the first trial did not enumerate the Synthetic Detergent Branch Plant as the appellee of this case in the light of the appeal request of the appellor, and did not give any explanation either. Although it was not appropriate, it did not fail to enumerate the litigant, and did not affect the appellor's undertaking of civil obligation involved in the case. So the appeal reason of the appellor is not tenable.

"Eight Minute Laundry Powder" as a name of commodity was first used by the Joint General Chemical Plant on its product authorized by Xianggui Chen. After that other producers are permitted by Xianggui Chen to use the name of this commodity. Xianggui Chen, who is the legal representative of the appellor, now appeal to the court that the appellor is the obligee of the name of the commodity, and the appellee had no objection to it, so it was approved by this court. The packing and packaging of the second generation of Eight Minute enzymatic laundry powder was designed and first used by the appellor, so the appellor can directly claim the right for it.

For ChuangYi company, the plaintiff in the first trial, although no other litigants had no objection to its qualification for subject of action, its behavior is that it authorized the Joint General Chemical Plant on behalf of someone else to use the trademark of Eight Minute laundry powder. this could be seen from the agreement signed with the Joint General Chemical Plant on January 28, 1997. In the second trial the appellor also confirmed that it had authorized ChuangYi company to sign the agreement, and in the paper of class action with appellor also expressed that the exclusive right to own the Eight Minute laundry powder brand belongs to appellor. Therefore, ChuangYi company is not the obligee of protected object of this case, it cannot claim the rights along with appellor. The verdict of the first trial did not identify it and it was handled improperly.

Second, about whether the appellee has behavior of fraudulently copying the title, packing and packaging of brand commodity. The appellee claimed that Eight Minute laundry powder is the well-known commodity produced by himself, to which the defendant didn't raise objection. Since coming into the market in 1992,it has gained popularity among consumers at home, especially in northeast area, and has been known to people with it's market expanding, so it should be held as well-know commodity.

About coping the specific name to the well-known commodity. The appellor didn't mention clearly in his claim during the first instance that the appellee imitated the specific name to his well-known commodity, but the appellor always pleaded to count the damage involved in this case according to the agreement signed between ChuangYi company and the Joint General Chemical Plant on Jan 28 1997 with such reason that the appellee constituted infringement by using the brand similar to Eight Minute laundry powder. What called "brand" generally indicates such letters with identification as commodity trademark and its specific name, etc. The parties involved in this case used different trademark, to which the clients lodge no objection. Then, whether the compensation claim made by the appellor can be justified depends on if the appellee imitated the specific name to the well-known commodity. In the name of "Eight Minute laundry powder" or of "the second generation of Eight Minute enzymatic laundry powder ", "Laundry powder" is the common part and "enzymatic "is the part which denotes material and function feature of the commodity. "The second generation "shows the type series of the commodity. These parts can't constitute the specific name to the commodity whether used separately or in combination. It doesn't have chief distinction and can't be used as a name exclusive to well-known commodity until it combines with "Eight Minute", which has neither been registered as trademark, nor been of legal or common name of the laundry powder. Among the name of "118 laundry powder" or "the second generation of 118 high- quality enzymatic laundry powder", "118" is a component of "SiLiao 118" as well as a uncommon part. "118" differs greatly from "Eight Minute" in the aspects of letter, graphic and pronunciation, etc.. Furthermore,"118" is the combination of numbers, however "Eight Minute" is a time concept. They are dissimilar in meaning and have no connection with each other. It is easy for consumers to distinguish them with normal attention without confusion or mistaking. The appellee didn't use the brand that is approximate to the commodity name used by the appellor, therefore, the appellee did not copy the specific name to well-known commodity used by the appellor . So the claim for compensation made by the appellor according to the agreement which was signed on Jan 28 1997 can't prove to be valid. The judgement in the original trial didn't support the compensation claim raised by the plaintiff with such reason that "brand " is trademark. Although the result was correct, the reason was improper.

About the imitation of specific packing to well-known commodity. The inner and outer packing of the appellor's Eight Minute enzymatic laundry powder are identical to that of the second generation of 118 high-quality enzymatic laundry powder produced by the appellee in shape and specification, however, this type of packing is a common one adopted in the industry. It can't serve as the specific packing to the commodity owned by the appellor. So, the above claim lodged by the appellor can't be justified either.

About copying the specific packaging to well-known commodity Judging from the evidences adduced by the appellor, the packaging of the second generation of Eight Minute enzymatic laundry powder is an original design introduced first by the appellor. The appellee didn't lodge an objection to it. It can then be held that this packaging is exclusive to the well-known commodity produced by the appellor. It had been observed, (1) The inner packing bag involved in this case has only two sides . the emphasis should be put on the front views to find out whether they are approximate enough to result in misleading . The main part of the front view designed by appellor has Eight Minute enzymatic laundry powder name, two occurrence of advertisement words "clean just by soaking " and people head figure .In the main part of the front view, "Eight Minute" is centered in red and special large font, forming the visual focus. It is very outstanding and striking. While the appellee's main part of the front view is designed with "118 high-quality enzymatic laundry powder represented with yellow circle as background, one occurrence of the advertisement words "clean just by soaking " and "the brand new second generation". In the main part of the front view, "118" are placed in the center of the pattern in outsized red font, forming visual focus . It is very outstanding and striking. The main part of their package's front view does not resemble each other on the whole. Although in the package there are the same advertisement words "clean just by soaking" which uses the same color, it is in a subordinate position compared with "Eight Minute" and "118" which are the main component of their packaging. So it will not lead to consumers' confusion and mistaking. Except that the parties have the same advertisement words of "clean just by soaking" on the rear view of their packaging, the washing process illustration and explanation introduced the common labeling method required by state standards. Also the contents of other parts are different from each other. (2) The outer packing box involved in this case possesses six facet view. The emphasis should be placed on the front view to find out whether they are similar enough to result in misleading. The main part of the front view designed by the appellor has Eight Minute laundry powder name and the advertisement words "clean just by soaking", in which "Eight Minute" are arranged in outsized red font forming visual focus. It is very outstanding and striking. While the appellee's main part of the front view is designed with "118 high-quality enzymatic laundry powder" represented with yellow circle as background, in which "118" is placed in the center of the packaging in special large font, forming visual focus. It is very outstanding and striking. The front views designed by the parties differ greatly from each other, and their rear views are the same as their own front view . The contents of the other parts are also greatly different and the associated words are printed in large-sized font which is easily recognized. Although the graphic's color blocks at the seal used by both sides are the same, they are arranged in different order, it arrangement order and are not the main part of the packaging. In addition, the background picture marked on both inner and outer packing are printed with blue color, however, the one designed by the appellor looks like S-shaped steam, while the other appears to be a water circle. They are greatly different from each other; Though the color used in both packaging are almost the same, the differences in how they are used as well as the arrangement and combination are distinctive. In spite of the use of such words as "International aroma type", "enzymatic", "6-8 pieces of clothes", "the second generation" and so on, they all indicate the material and function of the commodity based on the state standards. The words as those indicate purpose and type can't serve as the specific part to a commodity names or constitute the packaging of a commodity. Observing entirely and separately, the main part of the inner packing bag and outer packing box of both parties as well as their impression as a whole aren't approximate to other, which can be distinguished by common consumers with normal attention and can't be confused or mistaken for the above reasons.

The mistake resulted from the similarity of package and decoration are mentioned in the testimony by three testifier including YangQing, however, these testimony are just individual samples not enough to testify the misleading sequence had taken place among wide rage of consumers.

To summarize, he defendant involved in this case didn't commit unfair competition act of copying the specific name to the well-know commodity produced by appellant, to which original sentence hold nearly correct. The claim for compensation raised by the appellant according to that aren't supported by court due to absence of factual evidence.

The appellor didn't lodge a clear claim as to whether the advertisement words of "clean just by soaking "used in packaging can become an advertisement work. It goes beyond the trial scope of this case, and who was first to use this advertisement has no connection with this case either; "clean just by soaking " is a description of the capability of the commodity by it's own implication. The appellor didn't give evidence to show that the appellee's commodity did not have such capability and did not charge the appellee with giving false publicity to his commodity for this reason. The claim made by the appellor about that can't be supported by the court either.

Third, Whether the appellee's advertising constituted the conduct of false propaganda and commercial defamation. In market dealings, operator should follow the rule of faithfulness and credit, keep to the recognized commercial morality, should not impair goodwill and commercial reputation of the competitors, and misguide consumer in any illegal or illicit ways, operator's advertising must be authentic and introduce product and the content of service objectively, should not have any fabrication, concealment, irrational omitting and overstating. At the same time, advertising should not bring misguidance either, and operators should pay sufficient attention to the common consumer's general comprehension especially should introduce relational facts completely and objectively and take proper measures to avoid consumer's ambiguousness and misapprehension when involved other's goodwill and commercial reputation.

Obligee of exclusive name of well-known product can use the exclusive name by himself or can authorize other people to use it. The exclusive name of commodity is associated with the goodwill of specific commodity or with the commercial reputation of specific operator, it has the identification of commodity brand just as the trademark do. Commonly, consumers also identify commodity by trademark or by the exclusive name. Therefore, when an operator who has license advertises an commodity which has been stopped producing by the means of advertising, if he does not fully explain how to use the brand, who is its obligee, and why he producing was stopped at the same time, and consumers cannot known or commonly wouldn't notice that the operator produced the product by license, they will generally consider that the commodity of this brand has stopped producing and the reappearance of this product is illegal. this will be sufficient to infringe the benefits of the obligee of that brand and of other license holders.

In this case, "Eight Minute laundry powder" as an exclusive name of a well-known product was used by the appellee in the authorized manner, although the appellee has explained that "the former Eight Minute laundry powder has been stopped producing" in the TV statements and in the advertising leaflets, he didn't explain that the stopped production was a sort of production permission at the same time, and he didn't illuminate the reason for stopping producing either. In addition, the appellee can't testify that consumers have already known the circumstances in which Eight Minute laundry powder was produced upon other's authorization. This is sufficient to make consumers to consider that Eight Minute laundry powder has been stopped producing and the reappearance of this product is illegal. And the later presented sentence "and would not assume any responsibility for it if any problems arose." would make consumers consider that the Eight Minute laundry powder has been stopped producing because of problems. "a series of laundry powder headed by "118" with brands such as "TianChi" and "HanXiao" will be put onto the market" was also mentioned in the TV statements, Banding together the former and later advertising contents, consumers would easily consider that Eight Minute laundry powder has fallen into disuse, and the 118 laundry powder was the new substitute. Neither was these appellee's advertisements completely, objectively introduced the facts which involves the appellor's commercial reputation, nor they pay enough attention to the adverse influence which may infringe the appellor's product reputation and take corresponding measures. This behavior is sufficient to make consumers misunderstand the Eight Minute laundry powder. The appellor also instantiate the aftereffects of being misunderstood among quite a lot of laundry powder dealers and consumers because of this advertising. Consequently, the appellor's commercial reputation was impaired objectively. In addition, after more than one year since the Eight Minute laundry powder has been stopped producing, the Joint General Chemical Plant advertised again without illumination the actual producing stop time, and the two appellees cannot explain logically in court hearing, so it is can be construed that there is subjective intention in advertising aimed at the appellor. The above-mentioned advertising made by the appellee constituted unfair competition act which is prohibited in Article 9 of anti-unfair competition act. The original judgment didn't ascertain that both the appellees constituted unfair competition, therefore was undue and should be withdrawn. The ground for this appeal of the appellor is founded and the demanding of rehabilitating the two plaintiff's reputation, eliminating ill effects and making a formal apology over the corresponding TV stations should be supported. The appellor didn't lodge a claim to the unfair competition act, the court also dismiss it. On account of the content per se of appellle's advertising are not fabricated or are sheer falsity, therefore, this conduct didn't constitute unfair competition act which is prescribed in Article 14 of anti-unfair competition act. The original judgment is right, and the ground for this appeal of the appellor is not founded.

Fourth, The civil liabilities for the unfair competition act. TV statements was broadcasted in the name of Synthetic Detergent Branch Plant and stamped the seal of the Joint General Chemical Plant . Although the Synthetic Detergent Branch Plant was rented to Yuping Wang at that time, it remained an internal department of the Joint General Chemical Plant externally. So, the civil liabilities brought by the TV statements and the leaflets given out in the name of the Branch Plant should be born by the Joint General Chemical Plant, and the civil liabilities brought by the conduct of spreading leaflets in the name of XinPing company and this Branch Plant jointly after the XinPing company was established should be born by both XinPing company and the Joint General Chemical Plant. As to the claim made by the appellor, that is the reasonable expense paid for investigating the unfair competition act of this case should be born by the appellor, because the charge is partially founded, so the claim is also partially found. While the investigating expense has gone into the cost account of the ChuangYi company, it is really the expenditure for investigating the unfair competition act of this case and is mainly brought by the appellee's false advertising, therefore it should be bore mostly by the appellee. The excuses for the appellee, XinPing company, to consider the expense not associated with this case are not founded. The court acceptance fee of the first instance and the second instance are 11,010 RMB yuan each instance. Since the first instance charged 110,000 RMB yuan in fact, the second instance would charges the same amount according to the first instance and do not change. The expense is apportioned according to the liabilities of the separate parties.

To sum up, the grounds of the appeal lodged by the appellor are partially founded. The facts that the first trial ascertained are clear basically, but the applying law are partially wrong and the judgment should be revised according to law. Pursuant to Item 2 of Article 5, Article 9, Article 14, Article 20 of "Anti-unfair Competition Act of the People's Republic of China", to Item 1 of Article 108, Item 1, Item 2 of Paragraph 1 of Article 153 of "Civil Procedure Law of the People's Republic of China", and to Item 5 of Article 40 of "The Statements About Some Problems For Applying 'Civil Procedure Law of the People's Republic of China' of Supreme People's Court", the judgment is as followings:

1. To withdraw main sentence of the Civil Judgment No.83 Economy Case (1998) Chu Zi of the initial trial by Higher People's Court of JiLin Province.

2. The SiPing Joint General Chemical Plant China Chemistry and the Jiaping Detergent Industry Ltd of Siping City should stop the unfair competition act against Hong Kong Eight Minute International Detergent Group Limited in advertising immediately.

3. The SiPing Joint General Chemical Plant China Chemistry and the JiaPing Detergent Industry Ltd of Siping City broadcast an Excuse Announcement jointly within 30 days of the enforcement of the judgment to rehabilitate reputation, eliminate influence, and apologize to Hong Kong Eight Minute International Detergent Group Limited company over Jilin TV station and SiPing TV station during the exact same time period and at the same channel as that of broadcasting TV statements. The content of the announcement must be approved by the court. If failed to perform within the time limit, execution division will publish the main content of this judgement over the above-mentioned TV stations in the same way and the associated expense should be born by the appellee.

4. The SiPin Joint General Chemical Plant China Chemistry and the XinPing Detergent Industry Ltd of Siping City compensate 5,000 RMB yuan for the investigating expense to Hong Kong Eight Minute International Detergent Group Limited and deliver this money directly within 30 days of the enforcement of the judgment.

5. Other appeals claimed by the Hong Kong Eight Minute International Detergent Group Limited company are denied.

6. The appeal claimed by the ChuangYi company of Zhaoyuan County is denied.

The court acceptance fee of the first instance and second instance are 11,010 RMB yuan each, totaling 220,000 RMB yuan. The Joint General Chemical Plant China Chemistry and the XinPing Detergent Industry Ltd of Siping City bear 60,000 RMB yuan respectively, the Hong Kong Eight Minute International Detergent Group Limited bears 40,000 RMB yuan. The ChuangYi company of Zhaoyuan County in Daqing City bears 60,000 RMB yuan.

This judgment is final judgment.