China: The Shape Of Perfume

Last Updated: 3 May 2018
Article by Adam Kellett

Luxury goods brand and fashion house Christian Dior recently enjoyed a favourable trade mark decision before the Supreme People's Court of China (SPC).

An application by Dior, to register the shape of its famous "j'adore" perfume bottle as a trade mark in China, had been refused by the Chinese Trade Mark Office (CTMO) on the grounds that the bottle is not sufficiently distinctive, and that Dior had not proven that it had acquired distinctiveness through use.  The Trademark Review and Adjudication Board (TRAB) and local courts in Beijing upheld the refusal.

However, Dior took the case to the SPC, which has now ruled that the TRAB must re-examine the application.  Whilst we will have to wait to find out the ultimate fate of Dior's bottle trade mark, the case raises some interesting issues.

Non-standard trade marks

More often than not, trade marks consist of words or logos (or combinations of the two).  It is also possible, in some territories, to protect non-standard trade marks, such as colours, sounds, and the shape/appearance of products, though this is not always easy.

The common default position is that consumers aren't used to perceiving the shape/appearance of goods as indicating the commercial origin of goods or services.  Consumers will most often rely on names and logos, instead, to determine what the brand is.

In the EU, to register a mark which represents the shape/appearance of goods or their packaging (such as a perfume bottle), it is necessary to show either that it departs significantly from the norms for such goods or, failing this, that consumers have come to recognise the shape/appearance as a badge of origin through its use.  Neither is an easy hurdle to jump.  Chinese law has requirements of a similar ilk.

In this case, the earlier decisions were based on a finding that the aesthetic features of the bottle were merely decorative, and that the bottle was not acting as a trade mark.  Based on the evidence Dior had submitted, the lower authorities had considered themselves unable to determine whether the bottle was acting as a trade mark independently of the "j'adore" name.  A representative of the TRAB thought that protecting the bottle under trade mark law would likely impede competition, and that the different form and duration of protection available to registered designs would be more appropriate.

Existing registration

Dior pointed out that they had, in fact, succeeded in registering the shape/appearance of their perfume bottle in China on a previous occasion, in 2009.

Trade mark officials are often reluctant to place any weight on previous trade mark registrations, instead taking the view that they must adopt a case-by-case approach, since earlier registrations might have been granted in error.  However, in this case the SPC have (somewhat refreshingly!) noted that the law should be applied with uniformity and consistency, and have ordered the TRAB to take this into account when re-examining the application.

Filing route

It seems that some of the issues faced by Dior's application were connected to the fact that registration was sought via an International Registration, rather than by way of a standard national application.

An application for International Registration is filed centrally with the World Intellectual Property Office as a single uniform application, designating the countries/regions where the Applicant wishes to seek protection.  However, each of the designated countries then goes on to separately examine the registrability of the mark according to their different laws and practices.

In this case, the CTMO had evidently miscategorised the mark during its examination, which Dior claimed had resulted in it being reviewed as a 2D mark, rather than a 3D mark.  The TRAB tried to justify this on the basis of formalities and procedural deficiencies, which Dior suggested were irrelevant and/or unfair in the context of an International Registration.

It seems that things might have run more smoothly had the application been filed directly with the CTMO, in which case it could have been tailored according to local law and practice at the outset, and potentially have avoided the difficulties outlined above.  In any event, the CTMO and TRAB were criticised by the SPC for the way they handled the examination of the International Registration, and one would hope this might minimise the risk of other applications filed via the International Registration route encountering similar issues in the future.

Smells like change

The SPC's decision has been hailed as a sign of changes in China's protection of IP.  China has formerly been criticised for not doing enough to protect IP, and this ruling has been perceived as a sign that China will protect IP to the same extent and standards as other large economies, irrespective of its origin.  The ruling follows China's recent announcement that it will be introducing punitive damages in infringement cases, intended to punish and deter infringers, rather than merely compensating claimants.

All signs point towards improved protection of intellectual property in China!

"China's Supreme Court ruled in favor of the company regarding an application for trademark protection for the J'Adore teardrop bottle design in China."

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