Using Another Color = Unfair Competition

Using Another Color = Unfair Competition

                                                                                                          Li Dongtao

The Facts

Thinking of the color, why 

Now I'm lost.¹

This is a case about “COLOR”. 

The plaintiff and the defendant are flour producers.

The plaintiff began selling flour at 1985. Since then, the plaintiff had invested lots of money in advertisements and package designs, and the effect was tremendous. The flour was being sold all over the country, and the package was well known to the public.

    The defendant began selling flour in 1996. Because the registered trademark was not well known, the financial situation of the defendant was not optimistic.

Accordingly, the defendant decided to change its marketing strategy at the end of 1997. It began using almost the same package design as that of the plaintiff but with a different trademark and in a different color.

Soon afterwards, this strategy brought commercial success.

The plaintiff sued the defendant for unfair competition（using the specified package of a well-known product）.

The defendant argued that unfair competition was not established because the two packages were different, so the public could not be misled.

The court ruled that the unfair competition was established because:

a. the plaintiff’s product was well-known;

b. the defendant used almost the same package design as that of the plaintiff and a likelihood of confusion in the market place was made, a different color couldn’t delete this effect.

In short, thinking of the color, consumers were lost. 

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