First-instance case number: (2017) Zhejiang 02 Preliminary Civil Judgement No.520

The color trademark infringement judgment is based on if used on the same or similar goods, whether the accused mark is likely to confuse the relevant public to the source of goods or services, the simple comparison of the color information of the two is not the purpose, but only an auxiliary means of judgment.  

When judging whether the color combination trademark and the alleged infringing mark constitute the same or similar, it should be based on the characteristics of the color combination trademark and the general attention of the relevant public as the standard, focusing on the use position of the color combination, the arrangement and combination method, the color, the overall visual effect and the environment in which the infringing mark is used, etc. If the color combination trademark is used on the same or similar goods, which may cause confusion and misunderstanding of the source of the goods or services by the relevant public, it should be judged that the trademarks are identical or similar.

Case introduction

Plaintiff: Deere&Company

Defendants: Shandong Leiyi Heavy Industry Agricultural Equipment Manufacturing Co., Ltd. (referred to as Leiyi Company), Ningbo Yinzhou Shentuo Deere Agricultural Machinery Co., Ltd. (referred to as Shentuo Deere Company)

The plaintiff Deere&Company is a world-renowned agricultural machinery, diesel engine and construction machinery manufacturing company, and enjoys a high reputation in China. The plaintiff has registered trademarks "" (Registration No. 206347), "" (Registration No. 7789578), "" (Registration No. 1637955), "" (Registration No. 4496718), "" (Registration No. 13517703), "" (Registration No. 13517701 ), the above-mentioned trademarks are currently within the validity period. Deere&Company believes that Leiyi Company and Shentuo Deere Company used trademarks identical or similar to the registered trademarks of Deere&Company in the tractors manufactured and sold by them, related advertisements, and product price lists without permission; The defendant, Shentuo Deere Company, registered and used a company name similar to the well-known trademark of Deere&Company involved in the case without permission. Leiyi Company and Shentuo Deere Company subjectively have a common intention and objectively division of labor and cooperation, which constitutes a joint infringement. Therefore, Deere&Company filed a lawsuit to the Ningbo Intermediate People's Court of Zhejiang Province, requesting an order for the two defendants to immediately stop trademark infringement and stop using the infringing company name, publish a statement, eliminate the impact, and jointly compensate for economic losses of RMB eight million and reasonable costs RMB 520,000.

After the trial, the court held that: the two defendants used trademarks similar to the registered trademarks on the same goods or similar goods without the permission of the trademark registrant. In the case where the plaintiff’s registered trademarks involved in the case have a relatively high reputation and distinctiveness, , it is easy to cause confusion and misunderstanding among the relevant public with general attention, which constitutes trademark infringement.

The defendant Shentuo Deere Company used "Shentuo Deere", which is similar to the plaintiff trademark No. 206347 "" and trademark No. 7789578 "", as the name of the company without justifiable reasons. Its subjective intention is not in good faith, and the objective method of use is not properly, which violates the principle of good faith and accepted business ethics. It is easy to cause the relevant public to mistakenly believe that there is a certain connection between it and the plaintiff Deere&Company, thereby causing confusion and misunderstanding of the source of the goods, which constitutes unfair competition.

The two defendants had the common subjective intention and objective common infringement on the tractor product that infringed the plaintiff’s exclusive right to use the registered trademark involved in the case, and jointly infringed the exclusive right of Deere&Company to use the registered trademark involved in the case. They should jointly bear the legal responsibility to stop the infringement and compensate for losses.

In summary, the court ruled that the two defendants immediately stopped the infringement of the plaintiff’s exclusive right to use the registered trademark that the plaintiff had; and immediately stopped the unfair competition involved in the case, that is, immediately stopped using the alleged infringing company name, and the changed enterprise name should not contain the word "Deere"; the two defendants jointly compensated the plaintiff for economic losses and reasonable rights protection expenses totaling RMB two million yuan; Shentuo Deere Company compensated for the plaintiff's economic losses and reasonable rights protection expenses totaling RMB 800,000 yuan; the two defendants published a statement in the Legal Daily within 30 days from the effective date of the judgment to eliminate the impact.

Typical meaning

The typical significance of this case lies mainly in the establishment of the infringement comparison rule for color combination trademarks. A color combination trademark is the permutation and combination of two or more colors that can distinguish between different goods or services. The use of color combination trademark should generally be combined with the goods, and the specific form in use can vary with the shape of the goods themselves.

The judge responsible for the case held that the infringement of color trademark is to determine whether the accused logo is easy to confuse the relevant public about the source of goods or services if it is used on the same or similar goods. The simple comparison of the color information of the two (hue, purity, brightness) is not the purpose, but only an auxiliary means of judgment.

When judging whether the color combination trademark and the infringing mark are identical or similar, it should be based on the characteristics of the color combination trademark and the general attention of the relevant public as the standard, focusing on the use position of the color combination, the arrangement and combination method, the color difference, the overall visual effect and the environment in which the accused logo is used. If it is used on the same or similar goods, which may cause confusion and misunderstanding of the origin of the goods or services by the relevant public, it should be determined that the trademarks are identical or similar. As far as the color information comparison is used as an auxiliary means of judgment, when comparing the color information of the color combination trademark and the color information of the alleged infringement mark, it can be included in the color stereo mode. In this mode, each color can find its corresponding position within the three-dimensional color model and be described by color values. In some cases, after scientific sampling, if the color value of the color combination trademark of the right holder is the same as the color value of the alleged infringement mark, it should be judged to be the same color; if the two are different (or there is a color difference), but located within a certain similar color or similar color declination angle, the two colors can be regarded as similar.