The Ouhai District People's Court in Wenzhou recently affirmed the significance of taking a global view when assessing the similarities between an allegedly infringing product and a 3D trademark. The dispute at issue was between Martell, one of the world's oldest cognac houses, and the Chinese manufacturer of Louis Baron XO brandy, the bottle of which was almost identical to Martell's 3D trademark.
The Chongqing First Intermediate Court recently applied Article 63.2 of the Trademark Law in its determination of damages, in another exemplary case of a court ordering the defendant to produce evidence showing the scope of its activities. The decision confirms that if a defendant refuses to produce accounts or produces accounts that cannot be verified, the consequences can be serious.
According to the 'first-sale' doctrine, trademark rights are exhausted once the product has been sold on the market by the trademark owner or with the trademark owner's consent; the trademark owner cannot prevent further distribution of the product. In a recent case involving altered Zippo lighters, the main issue was whether the defendant could invoke this doctrine as a defence. The court's decision was not an obvious one to make.