31 August 2024
The packaging and decoration of products is a sharp weapon for enterprises to explore the market, participate in fierce competition and improve their popularity. Grace Guo explains why enterprises should be ready to use all available legal weapons, and discusses the four protection modes for commodity packaging and decoration in China.
In a market economy, the packaging and decoration of goods is no longer just the pursuit of beauty in appearance, but also an important and effective way of commodity competition, and has gradually become an important intangible intellectual property and competitive advantage of enterprises. At the very beginning of using related packaging and decoration, enterprises should begin to pay attention to the intangible asset of commodity packaging and decoration.
The distinction between commodity packaging and decoration
Article 3 of China’s Certain Regulations on Prohibiting Unfair Competition Activity Concerning Imitating Specific Names, Packaging or Decoration of Well-known Commodities stipulates that “packaging as mentioned in these Regulations refers to an auxiliary object or a container for a commodity making the commodity easy to be identified, carried about, stored and transported. Decoration as mentioned in these Regulations refers to the writing, design, color and their combination attached to a commodity or its packaging so as to identify and beautify the commodity.”
Generally speaking, when the decoration is attached to the commodity, it becomes an integral part of the commodity itself; When the decoration is attached to the packaging of goods, it becomes the attachment of goods as an integral part of the packaging. At this time, the packaging and decoration are integrated.
According to China’s intellectual property laws, regulations and judicial precedents, there are four protection modes for commodity packaging and decoration in China. This article will compare the advantages and disadvantages of the four protection modes and put forward legal suggestions for the best protection.
Comparison of legal protection modes and their advantages and disadvantages for commodity packaging and decoration in China
Copyright legal protection mode
Protection method: Claim that packaging and decoration are original works, demand that the infringer stop producing and selling infringing goods and claim damages.
Typical case: A well-known pharmaceutical company in China used the same decoration on their acne gel cosmetics as the influential Tuanhua costume pattern on the Herborist cosmetics brand . Our lawyer Grace Guo was entrusted by the plaintiff, the well-known cosmetics listed company, to represent the Herborist Tuanhua pattern copyright and unfair competition disputes, and won both cases. In response to the infringement of the decoration, not only did she stop the infringement, but also obtained a high compensation of about Rmb1.5 million (US$211,500).
Advantages of the copyright protection mode: There are two main advantages to copyright protection, as detailed below.
Disadvantages of the copyright protection mode: There are three main disadvantages to copyright protection, as detailed below.
Trademark rights legal protection mode
Protection method: To register the packaging and decoration of goods as a trademark and claim that the subject using the same packaging and decoration infringes its trademark rights, and to demand that the infringer stop the infringement and compensate for damages.
Typical case: The defendant registered the Biosophist trademark, similar to the plaintiff’s graphic combination Herborist trademark and used it in a similar class of goods. Grace Guo was again appointed by the plaintiff, a well-known cosmetic listed company, to act as the litigation agent. In this case, after two trial procedures, it was ruled that the Herborist trademark registered by the plaintiff in the third category cosmetics constituted a well-known trademark, and the defendant’s registered Biosophist trademark infringed the exclusive rights of the plaintiff’s well-known trademark, and its use of the trademark in the enterprise name constituted unfair competition. The defendant was sentenced to compensate the plaintiff for economic losses and reasonable expenses totaling Rmb1 million (US$141,000).
Advantages of the trademark protection mode: There are three main advantages to trademark protection, as detailed below.
Disadvantages of the trademark protection mode: There are two main disadvantages to trademark protection, as detailed below.
Design patent legal protection mode
Protection method: Apply for design patent registration for the packaging and decoration of goods, and claim that the products with the same packaging and decoration infringe the patent right.
Typical case: The defendant, a company in Guangdong, copied the outer packaging of skin care products for which the plaintiff applied for design patent registration on its own similar skin care products without permission. Entrusted by a well-known cosmetic listed company of the plaintiff, Grace Guo successfully helped the plaintiff win the lawsuit and get Rmb1.2 million (US$169,000) damages by collecting evidence of the plaintiff’s commodity’s popularity and evidence of the defendant’s infringement in various ways and counting the amount of infringement damages in detail.
Advantages of the design patent protection mode: There are two main advantages to design patent protection, as detailed below.
Disadvantages of the design patent protection mode: There are two main disadvantages to design patent protection, as detailed below.
Anti-unfair competition law legal protection mode
Protection method: Claims that the packaging and decoration of goods have a certain impact and that the use of the same packaging and decoration constitutes unfair competition, prohibiting others from using them and compensating for damages.
Typical case: A company in Fujian used the same decoration as the plaintiff’s baby cream on its children’s moisturizing cream. Grace Guo accepted the entrustment of the plaintiff, a well-known cosmetic listed company, through careful litigation preparation, the case of the first trial judgment to stop the infringement, and settled for Rmb1.06 million (US$150,000), which fully safeguarded the rights and interests of the company’s customers.
Advantages of the anti-unfair competition protection mode: There are three main advantages to anti-unfair competition protection, as detailed below.
Disadvantages of the anti-unfair competition protection mode: There are three main disadvantages to anti-unfair competition protection, as detailed below.
Our legal advice
It is suggested to give priority to the trademark application and use trademark law to protect repeated graphic and text combinations in packaging and decoration.
If new packaging and decoration can apply for design patents, it is suggested to give priority to applying for design patents, which can protect the overall appearance of goods.
Packaging and decorations with a certain degree of popularity in the Chinese market, generally at least three years of continuous use, are recommended to be protected by the unfair competition law. Packaging and decorations that have just entered the China market or have not accumulated market popularity can claim copyright protection.
In summary, the packaging and decoration of products is a sharp weapon for enterprises to explore the market, participate in fierce competition, and improve their popularity. Enterprises should be ready to use all available legal weapons, choose protection methods suitable for packaging and decoration of specific commodities, attach importance to intangible assets of enterprises, and safeguard the legitimate rights and interests of enterprises.
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