"Restore moisture balance
Rejuvenate new muscles
Continuous water culture for 48 hours"
I believe that many people are attracted by the "water code" advertisement
Found out when I bought it
Different brands, different packages
It says "Water code."
Which is the real brand?
Let's take a look below
Basic case
The plaintiff's approval was obtained on December 7, 2010 and October 28, 2012, respectively
and“
”Registered trademark, approved for the use of products (international classification category 3) cosmetics and other skin care, washing and care products, and by the State Administration for Industry and Commerce Trademark Office review identified as well-known trademarks, by the Guangzhou Municipal People's Government included in the well-known trademark protection list.
(Photo from Internet)
In 2018, the plaintiff's marketing personnel found that the defendant used the word "water password" as a trademark on cosmetics, while promoting and selling on its own official website and wechat.
The plaintiff believed that the above acts of the defendant violated its exclusive right to use the registered trademark of "water password" and caused huge economic losses, so he sued the Baiyun Court, asking the defendant to compensate for the economic loss of 350,000 yuan and the reasonable cost of safeguarding the rights of 10,000 yuan due to the production and sales of cosmetics that violated the exclusive right to use the registered trademark of the plaintiff.
The defendant argued that a company
The cosmetics involved in the case highlight the use of the "Deshi Beimei" trademark, the overall packaging decoration of the cosmetics involved and all the "water code" series products under the plaintiff's name are different in tone and style, and the difference is obvious. Although there is the word "water code" on the cosmetics involved in the case, it is mainly to reflect the hydration function, and is only used as a text to express the functional properties of the cosmetics, and is not significantly used, which will not constitute the public's confusion of the original defendant's products.
Results of judgments and rulings
The Baiyun Court made a judgment: the defendant Xuan company compensated the plaintiff Baiyun Lianjia factory for economic losses of 100,000 yuan, and the reasonable cost of rights protection was 4,215 yuan.
After the verdict, neither party filed an appeal, and the verdict has now taken legal effect.
Reason for judgment
On whether the words "water password" of the accused infringing product constitute trademark use. The defendant contends that the use of the word "water code" in the accused infringing products is mainly to reflect the hydration function, which is only the expression of the function of cosmetics, and is not used as a trademark.
The court has heard that,"Water code" is a made-up term, not a functional description.The product accused of infringement uses the words "water code" in the product name marked in the middle position of the front of the bottle, and all of them are in black font bolded and underlined.When the relevant public identify the accused infringing products, it is easier to first observe the "water code" text, which objectively plays a role in identifying the source of the goods, and belongs to the trademark use.Therefore, the court does not accept the above defense opinions of the defendant
Regarding whether the alleged infringing product is an infringement of plaintiff No. 7792149“
”、Number 9881317“
”The identification of exclusive right of registered trademark. After comparison, first of all, the words "water code" highlighted on the bottle of the accused infringing product are compared with plaintiff No. 7792149“
”、Number 9881317“
”Compared to registered trademarks,The character, pronunciation and meaning are basically the same, constituting an approximation;
Secondly, looking at its commodity use category, the plaintiff's registered trademark No. 7792149 and No. 9881317 approved commodity category is Category 3, both of which include facial cleanser, cosmetics, spot removal cream, etc. The infringing products accused in this case are cosmetics and grooming preparations for the human body, which are targeted at consumer groups in need of personal toiletries, and can be circulated through the sale of daily toiletries.Taking the general attention of the relevant public as the standard, it is easy to confuse and misidentify the accused infringing product with the similar products in which the plaintiff uses the above trademark, so that consumers will mistake the accused infringing product for the product manufactured by the plaintiff or licensed by the plaintiff;
Thirdly, the plaintiff's "water code" series products have gained a certain popularity through the plaintiff's continuous publicity and use and rights protection.As the plaintiff's trade operator, the defendant cannot be unaware of the popularity and reputation of the plaintiff's trademark involved in the case, and its behavior has constituted imitation and attachment to the plaintiff's registered trademark, which can not be called good faith subjectively.
In summary, the court found that the alleged infringing product infringed plaintiff No. 7792149“
”、Number 9881317
”exclusive right to use registered trade mark
Judge's statement
Article 11 of the Trademark Law of the People's Republic of China stipulates that "the following marks may not be registered as trademarks: (1) only the generic name, pattern or model of the commodity; (2) directly expressing the quality, main raw materials, functions, uses, weight, quantity or other characteristics of the commodity; (3) those lacking other distinctive characteristics. The marks listed in the preceding paragraph may be registered as trademarks if they have acquired distinctive features through use and are easy to identify."
Although the separate "water" and "password" are generic words, the word combined into "water password" is a conjecture and does not belong to the common words to express the function of water replenishment, so the "water password" series of trademarks do not belong to the mark that only directly indicates the function and use of the product, and the exclusive right of the plaintiff's "water password" series of trademarks should be protected.
Although other trademarks are used on the accused infringing products, and their packaging and decoration are different from the plaintiff's "Water Code" series products, the approved use categories of the accused infringing products and the plaintiff's trademarks are the same, the consumer groups are the same, and the "Water code" series trademarks are relatively well-known. The relevant public will still misrecognize the source of the accused infringing product or think that its source is specifically related to the plaintiff's registered trademark product, thus causing confusion. Therefore, the accused infringing product infringes on the plaintiff's exclusive right to use the registered trademark involved.
Source: Baiyun District People's Court of Guangzhou
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