DetailsXi’an Intermediate CourtShaanxi High CourtCommentFactsChanel is a premier French luxurious vogue home. Its century-outdated CHANEL N°5 fragrance is maybe essentially the most recognised and revered fragrance of all time. Created in 1921, CHANEL N°5 has been identified for its aesthetic design, that includes easy strains, a plain white label and a chiselled stopper, which is lower like a diamond.In 2019, Chanel discovered {that a} Chinese firm, Yiwu Ai Zhi Yu Cosmetics Ltd (Ai Zhi Yu), was manufacturing a fragrance known as “N°9 Flower of Story”, which was a slavish copy of the distinctive trade dress of the CHANEL N°5 fragrance (Figures 1 and a pair of).Figure 1: CHANEL N°5 trade dressFigure 2: N°9 Flower of Story trade dressIn November 2019, Chanel carried out a notarised buy of the copycat product and later sued Ai Zhi Yu and its distributor, an e-commerce firm based mostly in Xi’an, earlier than the Xi’an Intermediate Court, on the bottom of unfair competitors arising from trade dress infringement.Xi’an Intermediate CourtOn 23 December 2020, the Xi’an Intermediate Court discovered that:The proof Chanel had furnished might corroborate the truth that the CHANEL N°5 fragrance, which entered the Chinese market roughly 20 years in the past, was identified by the related public in China.The bottle and packaging served as a key supply identifier of fragrance. The CHANEL N°5 fragrance bottle had been used for a century and was identified for its distinctive contours amongst Chinese customers via steady and in depth use.The form of CHANEL N°5 bottle, in addition to the format and color of the characters on the entrance label, was distinctive. Such trade dress had fashioned a secure relationship with Chanel, and will thus operate as a supply identifier of the merchandise.The form, materials and design of the bottle and the stopper, in addition to the color scheme, character association, measurement, proportion and place of the white label of the accused infringing product was extremely just like that of CHANEL N°5, which was prone to trigger misidentification among the many related public.The Court due to this fact discovered that the defendants’ act constituted unfair competitors and ordered cessation and damages (to be borne by Ai Zhi Yu).In January 2021, Ai Zhi Yu filed an attraction earlier than the Shaanxi High Court. Ai Zhi Yu (the appellant) challenged the distinctiveness of the trade dress of the CHANEL N°5 fragrance, asserting that the emblems “N°5” and “CHANEL”, relatively than the bottle itself (ie, trade dress), functioned because the supply identifier of the merchandise. The appellant adduced an administrative judgment rendered by the Beijing High Court, which rejected Chanel’s software for a 3D trademark based mostly on the bottle of the CHANEL N°5 fragrance, to again up its argument.Shaanxi High CourtThe Shaanxi High Court dismissed the Beijing High Court administrative judgment. The Shaanxi High Court famous that the consequence of the 3D trademark software was irrelevant to this case. It thought-about the next:First, the utilized-for 3D trademark was a mere bottle design. The trade dress in search of safety on this case was the design comprising numerous components, together with the graphics, color, form, measurement and font employed by Chanel in its entirety. They have been totally different topics.More importantly, the registrability of a 3D trademark software and the prerequisite for invoking trade dress safety are totally different issues ruled by totally different legal guidelines. The rejection of a 3D trademark software doesn’t essentially deprive the associated trade dress of being protected beneath the framework of the Anti-Unfair Competition Law.On 24 August 2021, the Shaanxi High Court maintained the Xi’an Intermediate Court’s choice.RemarkThe registration of a 3D trademark has change into an uphill battle in China. Brand house owners hoping to guard the design of their iconic merchandise are more and more shifting to various treatments, similar to in search of trade dress safety on an unfair competitors foundation.The courts on this case provided some attention-grabbing insights into the evaluation of the distinctiveness of trade dress involving a product form. They additionally clarified that whether or not a trade dress could also be protected by the Anti-Unfair Competition Law has no bearing on the evaluation of the registrability of the 3D trademark software incorporating the identical product form.For additional data on this subject please contact Wen Cui or Wei He at Wanhuida Intellectual Property by phone (+86 10 6892 1000) or e mail ([email protected] or [email protected]). The Wanhuida Intellectual Property web site may be accessed at www.wanhuida.com.
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