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P&G Triumphs over Local Trademark Freeriders

As one of the top multinational consumer goods companies in the world, Procter & Gamble has registered a plethora of trademarks in China including 帮宝适, 幫寶適 and Pampers. Recently, Fujian High People's Court rendered its second- instance decision on a trademark infringement case and unfair competition case between P&G and Quanzhou Yiya Trading Company and Quanzhou Sunflower Healthcare Company, ruling that the two defendants' action of producing and distributing of baby diapers with Pampermes logo has infringed the exclusive trademark right of P&G. In addition, by labeling the trade name of 香港幫寶適(國際)護理用品有限公司 (translation of HK Pampers International Nursing Appliance Company) on the infringement products, the defendants are found foul play in unfair competition. The defendants should immediately cease trademark infringement and indemnify P&G 400,000 yuan in damages. The decision rebuffed the appeal from Quanzhou Yiya Trading Company and echoed the one made by the trial court, Quanzhou Intermediate People's Court.

The third party of the case, HK Pampers International Nursing Appliance Company, was registered by Sunflower Company in Hong Kong, and authorized Sunflower to label 香 港 幫 寶 適(國 際)護 理 用 品 有 限 公 司 and Pamperosoft on the package of baby diapers. On April 2, 2017, Sunflower was authorized by Fujian Lanqingting Care Products Company, the party not involved in the case, to use Pamperostar in production and distribution of baby diapers. Then, an online flagship store named Pamperostar was initiated by Yiya Company.

On June 2, 2017, the former Fujian Quanzhou Administration for Industry and Commerce Luojiang Branch made a decision of administrative punishment that P&G's package of the wellknown products baby diapers named 帮宝适 was unique. The act of Sunflower constituted unfair competition. On February 9, 2018, Quanzhou Economic and Technological Development Zone Branch made a decision of administrative punishment that Yiya's act of selling baby diapers signed with Pamperostar constituted unfair competition, confiscating the company's unlawful income and imposing a fine.

After gathering evidence, P&G sued Yiya and Sunflower at Quanzhou Intermediate Court.

Quanzhou Intermediate Court held that defendants used Pampersoft, Pamperostar and Pampermes symbols in prominent positions on infringing products, which constituted similarity with P&G's registered trademark Pampers and its figure and characteristics. Considering that trademark rights of P&G have enjoyed high reputation among the public, it may cause confusion among consumers. The court judged Yiya and Sunflower co- infringers based on the relevant evidence and ordered Yiya to indemnify P&G 400,000 yuan in damages.

Then Yiya brought the case to Fujian High, claiming that the court should not impose the civil sanction when the company has been punished administratively. And its products were legally obtained through authorization from either Sunflower or HK Pampers, which ruled out any violation of other's rights.

Fujian High held that the defendants' action of using Pampersoft, Pamperostar and Pampermes symbols in prominent positions on infringement products infringed exclusive right of P&G. In addition, unfair competition was also established when they used the package similar with P&G and labeled characteristics of 香港幫寶適(國際)護 理 用 品 有 限 公 司 on a prominent position on the package. Yiya cannot be exempted from civil liability on IP infringement. It was impossible that Yiya, a retailer of diapers products, did not know the relevant famous trademarks of P&G. In this connection, Fujian High dismissed every claim of Yiya.

Source: China Intellectual Property News, CNIPA

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