“Look alike” is not acceptable: case review on a recent judgment by the Supreme Court

By Meloday Dang
Rouse & Co International

Italian confectioner Ferrero Rocher filed a lawsuit against Montresor (Zhangjiagang) Food, a Chinese competitor, accusing it of copying the Ferrero Rocher gold-wrapped packaging and heart-shaped transparent box for its Tresor Dore chocolates. The Tianjin 2nd Intermediate Court initially ruled, in November 2004, that Montresor was innocent because its Tresor Dore product had been well known in China for longer than the Ferrero Rocher product. However, Ferrero successfully appealed this decision to the Tianjin High Court, which found that the Tresor Dore products were infringing and ordered Montresor to pay Rmb700,000 (US$87,000) in compensation and cease selling the products.

Montresor afterwards launched appeal to the Supreme Court. On March 24 this year, the Supreme Court ruled that Montresor's packaging and appearance is similar to Ferrero Rocher (the two are similar in their entirety), which is unfair competition causes confusion and misunderstanding. The judgment further clarified the understanding of such concepts as famous goods, uniqueness etc. The final judgment adjusted the damages to Rmb500, 000.

Definition of “famous goods”