The Shandong Carlsberg Fined with Penalty and Renamed for its Rights Infringement to the Denmark Carlsberg

Beer

The Shandong Carlsberg Company was judged for the infringement constitution and acts of unfair competition of name imitating and false propaganda unilaterally for the first instance.

The Shandong Carlsberg Company was sued on the court for its infringement to the trademark rights of the Danish Brewery Company Carlsberg (Carlsberg AS). It was announced by the Shijingshan District People’s Court of Beijing on March 21 that the Shandong Carlsberg Company was judged for the infringement constitution and acts of unfair competition of name imitating and false propaganda unilaterally for the first instance. The company was sentenced to stopping its infringement and compensating the economic losses of the Calrsberg AS in total of 1.08 million Yuan.

The Calrsberg AS, as the plaintiff, prosecuted that the Carlsberg serial beer gains great reputations all over the world with the valid registered Carlsberg trademark. The defendant Shandong Carlsberg company and Jinfulong company produced and sold the beer which infringed the plaintiff’s trademark rights without permission. In thus, as the legal representative and the only shareholder, the defendant, Zhang, shall bear joint liability. Besides, the defendant Dai constituted unfair competition in selling the beer which infringed the trademark rights of the plaintiff in his Taobao store, the company using the same enterprise code of the plaintiff and using words such as pure European flavor in promotion.

The four defendants held that the sued products were not produced and sold by the Shandong Carlsberg Company and Jinfulong Company. The name, Shandong Carlsberg Company was legally registered by the permission of the industrial and commercial registration department, and there was no highlighted sale performance, so it’s legally bestowed with the name right of its enterprise legal representative. Zhang, just as the individual enterprise shareholder and legal representative, shall not bear the civil liability of the Shandong Carlsberg Company. Dai had already stopped selling the sued products before the prosecution, so he’s responsibility-free for the compensation. In conclusion, the prosecution request of the plaintiff was objected.

After the trial, the court also considered the plaintiff Carlsberg AS is the inclusive right owner of the related Carlsberg trademarks and images and the trademarks gain a lot of reputations and fame in China.

The Shijingshan District Court judged that the sued trademarks were frequently used on the products and promotions run by the Jinfulong Company and Dai, the sued product contained the highly similar components, lay-outs, arrangement, designed styles and overall visual effects as the plaintiff’s products with the words Supervised by the Shandong Carlsberg Brewery Co., Ltd. and Authorized Producer: Shandong Jinfulong Brewery Co., Ltd. which may be easily confused by the public. In thus, it already constituted the conditions of confusion in using the same or similar trademark as that of the plaintiff.

The joint actions of producing and selling the sued infringed products by the Shandong Carlsberg Company and the Jinfulong Company, as well as the action of using the same or similar trademark as that of the plaintiff in promoting by the Shandong Carlsberg Company both constituted infringement to the inclusive right of the registered trademark owned by the plaintiff. The sued companies shall stop infringing rights and compensating for the losses. Dai shall bear the legal responsibility of stopping selling the products in his confirmed producing sources and fair consideration. Due to no solid proof of the personal infringement by Zhang, he was judged free from the legal responsibilities as the legal representative and only shareholder.

About the part of unfair competition, the court judged that the unfair competition assumption was positive for the defendants using the famous registered trademark by the plaintiff as its enterprise code and operating in the same product manufacturing and selling area, which was easy to confuse the public. The action that the defendants took advantage of the special relationship with the plaintiff on subjective intention broke the principle of good faith.

Besides, the defendant Shandong Carlsberg Company used a lot of promoting words aiming at the Carlsberg trademarks by the plaintiff to make the public misunderstood which was judged as confusing false propaganda behavior.

In conclusion, the Shandong Carlsberg Company and the Jinfulong company were compelled to stop producing and selling beer products with the infringed trademarks, Dai was compelled no to sell the sued infringed products and the Shandong Carlsberg was fined with the penalty 1.08 million Yuan in all including the compensation and economic losses for the plaintiff of 973,709 Yuan and litigation expenditure of  106,291 Yuan.

The Jinfulong Company was just fined with the penalty 900,000 Yuan in all containing compensation of 800,000 Yuan and litigation expenditure because it didn’t constitute unfair competitive actions. Meanwhile, the Shandong Carlsberg Company was compelled to stop using the word Carlsberg in its enterprise name and change its company name immediately.

March 22, 2019

Source: the Beijing News

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