Kinmen kaoliang liquor maker receives detention for trademark infringement
E181028Y2 | Nov. 2018（E228）
Kinmen Kaoliang Liquor Inc. filed a lawsuit against Chinmen Dashuen Co., Ltd. (“Chinmen Dashuen”) on the ground that Chinmen Dashuen infringed upon Kinmen Kaoliang Liquor Inc.’s trademark right by using on the kaoliang liquor product Chinmen Dashuen produced for sale under the Chinese designation “八二三紀念高粱酒” (hereinafter the “accused liquor product”) from November 2012 a mark and word label that are similar or identical to that Kinmen Kaoliang Liquor Inc. uses on its kaoliang liquor product, “823金門高粱酒” (hereinafter “Kinmen Kaoliang Liquor’s liquor product”). This trademark dispute went through the second instance proceedings at the Taiwan IP Court and tentatively ended by the Taiwan IP Court’s judgment that the mark used on the accused liquor product is so similar to that used on Kinmen Kaoliang Liquor’s liquor product that it would cause confusion to consumers and thus Chinmen Dashuen violates the Taiwan Trademark Act and Chinmen Dashuen’s responsible person should be sentenced to 50 days of detention.
The Taiwan IP Court reversed the first-instance judgment Fuchien Kinmen District Court rendered on the same case, which found Chinmen Dashuen not guilty and holding no criminal intent for trademark infringement on the ground that the accused liquor product clearly indicates its source from Chinmen Dashuen and Chinese term “金門高粱酒” (meaning “Kinmen kaoliang liquor” in English) derives from Kinmen, not from Kinmen Kaoliang Liquor Inc..
The prosecutor appealed the first-instance judgment to the Taiwan IP Court. By reference of the Taiwan IPO’s interpretation, the Taiwan IP Court ruled that the product designation of the accused kaoliang liquor, “八二三紀念高粱酒” is similar to Kinmen Kaoliang Liquor Inc.’s Chinese marks, “823金門高粱酒” and “金門”. Moreover, the enlarged two Chinese characters, “金門” on the bottle of the accused liquor product is indeed likely to cause consumers to confuse the accused liquor product with Kinmen Kaoliang Liquor Inc.’s liquor product and further to have a mistaken thought that the two products come from the same source or affiliated companies.
In addition, as a competitor to Kinmen Kaoliang Liquor Inc. in the same trade, Chinmen Dashuen apparently shows no bona fide intent by using the bottle label, packaging box, paper bag, and carton that are all identical or highly similar to those of Kinmen Kaoliang Liquor Inc.’s liquor product, for which the IP Court reversed the first-instance judgment to find Chinmen Dashuen guilty and decide that Chinmen Dashuen’s responsible person should be sentenced to 50 days of detention which is commutable to a fine payment of TWTD50,000, and the seized 591 bottles of liquor and 416 packaging cartons shall be all confiscated. This case is still appealable. (October 2018)