Case Brief:

The trademarks "哈药" No.10484474, No.14419610, and No.3126576 are registered by Harbin Pharmaceutical Group on goods such as tonics, medicines for human purposes, ointment, and traditional Chinese medicinal preparations, goods such as vitamin preparations, tonics, and Royal jelly for pharmaceutical purposes, and goods such as raw material drug and powder injections, respectively. The exclusive right to use these trademarks terminates on May 27, 2023, July 6, 2025, and June 13, 2023, respectively.

On October 24, 2019, the Administration for Market Regulation in Changchun, Jilin province inspected the warehouse rented by the party concerned, namely, Changchun Pharmaceuticals Sales Co., Ltd., and found a large amount of suspected infringing drugs. Upon examination, on April 26, 2018, the former Trademark Review and Adjudication Board of State Administration for Industry and Commerce ruled that the trademark "哈总" was invalidated for the reason that it was similar to the trademark "哈药". The legal representative of the former registrant of trademark "哈总", namely, Jilin Hazong Pharmaceuticals Group, told this matter to salesmen of Hazong. The party concerned knew perfectly well that the trademark "哈总" was ruled to be invalidated, but still purchased 389,440 boxes of drugs marked with text "哈总" from companies including Jinlin Yihong Pharmaceutical Co., Ltd in April and May 2019. As of October 24, 2019, the party concerned sold 170,340 boxes of drugs with a total sales amount of 683,800 yuan, and 219,100 boxes of drugs were not sold.

On March 16, 2020, the office handling the case determined that the acts of the party concerned constitute infringing acts under Article 57.3 of the Trademark Law, ordered the party concerned to stop the infringing acts immediately according to Article 60.2 of the Trademark Law, confiscated the infringing goods, and imposed an administrative penalty of 500,000 yuan. The illegal acts of companies including Jinlin Yihong Pharmaceutical Co., Ltd would be settled as a separated case.

Expert Comments:

Determination of whether a trademark is a similar trademark is one of the key points in determination of whether the trademark is an infringing trademark in a trademark infringement case. The party concerned in this case knew perfectly well that "哈药" was a famous trademark, but still purchased drugs having the trademark "哈总" that is similar to the registered trademark "哈药" for sales. Such acts may easily make consumers confused about the source of goods and they may mistake the infringing goods as goods of Harbin Pharmaceutical Group or hold an opinion that the infringing goods have a certain relationship with "哈药". The office handling the case investigated and punished the infringer timely with correct application of laws, effectively safeguarding legal rights of the trademark register and ensuring medication safety. (YAO Huanqing, deputy director of the Civil and Commercial Laws Research Center of Renmin University of China)