Standard Foods Succeeded in Infringement Lawsuit

Standard Foods Corporation (hereinafter “Standard Foods”) brought an action with the Taiwan IP Court against Top Greats Biotech Co., Ltd. (hereinafter “Top Greats”) and Fujicome Biotech Marketing Co., Ltd. (hereinafter “Fujicome”) in November 2010 for the matter that Top Greats used on its tonic drink products for women the packaging similar to that of Standard Foods’ two tonic drink products (Freschissimo Rose & Four Herbs Drink and Freschissimo Rose & Four Herbs Drink with Papaya Juice; namely “玫瑰四物飲” and “青木瓜四物飲” in Chinese product names), and Fujicome sells the subject two tonic drink products Top Greats has made from August 2009.  The IP Court decided on this case in favor of Standard Foods and granted to Standard Foods an award of monetary damages in the amount of TWD1,650,000.  As to the criminal aspects of this case, the prosecutor indicted both Top Greats and Fujicome and Tainan District Court convicted defendant ZHANG, Zhan-Tu (the president of Top Greats and general manager of Fujicome; hereinafter “Zhang”) of intellectual property right infringement and sentenced him to 1-year imprisonment and imposed a fine of TWD1 million on Top Greats and Fujicome.

According to the Tainan District Court judgment, the packaging of the Standard Foods’ two tonic drink products (Freschissimo Rose & Four Herbs Drink with Papaya Juice) is characterized by a combination of color progression of viridian hue, blossomy roses, and a diamond pattern in dark green as the background color with the product name printed thereon in white color.  The said packaging design appears on both the packaging film of the bottle and the packaging box.  As indicated in the judgment, the packaging design as a whole is original and conceptualizes the author’s spirit.  

The Tainan District Court judgment also indicated that the two prerequisites of imitation include “access” and “substantial similarity”, and that unauthorized reproduction also constitutes imitation in its broad sense.  The prerequisite of “access” is met by Zhang’s assertion that he had compared the packagings of the other tonic drink products of Wei Chuan CORP., Uni-President, Sun Ten Pharmaceutical Co., Ltd., and Standard Foods in the same trade when he was designing the packaging of the subject two tonic drink products.  In addition, the packaging of the subject two tonic drink products is substantially similar to that of Standard Foods’ two tonic drink products because the conception, appearance, and the way of expression of Top Greats’ packaging is mostly similar to that of Standard Foods’ two tonic drink products with only slight differences in descriptions and brand name and trademark, and these similarities are the core essence of Standard Foods’ two tonic drink products. 

Moreover, the design company commissioned by Top Greats to do the packaging design also testified on how they went through discussions with Top Greats with respect to the design, which demonstrates that Zhang held the intent to reproduce, without authorization, the packaging of Standard Goods’ tonic drink products for sale. Therefore, the judge imposed the above-mentioned sentence on Top Greats and Fujicome.  (February 2014)
/CCS