The Fujian High Court concluded a trademark infringement lawsuit between the appellant Crocs Trading (Shanghai) Co., Ltd. ("Crocs Company") and the appellants Pan Zhiming, Quanzhou Fengze District Zhongkuo Trading Co., Ltd. ("Zhongkuo"), Quanzhou Fengze Chaoyi E-Commerce Co., Ltd. ("Chaoyi"), Quanzhou Jixuan Trading Co., Ltd. ("Jixuan"), and an individual Huang. The defendants were ordered to immediately stop the trademark infringement and compensate Crocs Company for economic losses and reasonable expenses of RMB 1 million (USD140,480).
Here, Crocs Company is the owner of the "CROCS" mark ("Cited Mark"). Through Crocs Company and its affiliated companies' continuous use and publicity, the Cited Mark has obtained relatively high fame in its approved class. The Disputed Mark is "CROSS," which was used on the same class of goods as the Cited Mark. The Disputed Mark was used on the shoe product itself, product packaging boxes, and the sales page of the e-commerce platform. Such uses were clearly trademark uses. Using the general attention of the relevant public as the standard, when comparing the Disputed Mark and the Cited Mark in isolation, the distinctive part of the two marks constituted similar. Under the circumstances that the Cited Mark is relatively famous, the Disputed Mark is likely to cause confusion. The first instance court did not err in finding that the Disputed Mark constituted an infringement of the Cited Mark.
In this case, Crocs Company claimed that the product decoration of its CROCS brand "Classic Crocs in Chinese," "Crocband Kaluoban in Chinese," and "Bayaband Clog Beiyakaluobankelulu in Chinese" series of shoes falls within the scope of the Anti-Unfair Competition Law because of its decoration has a certain influence. Judging from the evidence provided by Crocs Company, although the "CROCS" brand series of shoes have gained a certain degree of popularity through continued use and publicity, there is no sufficient evidence to prove that the relevant public has regarded the construction upholstery of this series of shoes to be associated with Crocs Company. Although there was a previous judgment that protected the decoration claimed by Crocs Company, that judgment was in 2015, which was a long time before the litigation in this case occurred. The uniqueness of a mark's decoration should be combined with the public perception at the time of the dispute. Knowledge and whether the decorative mark also have distinctive features that distinguish the source of the goods shall be used as the criterion for judgment. Whether the decorative log has been protected is only one of the factors to be considered. Judging from the supplementary evidence submitted by the defendants, "crocs design shoes" products are relatively common in the market and have different functions. Third parties outside of this case have successfully registered for design patents based on improvements to such features. Even if the decoration claimed by Crocs Company had certain uniqueness in the early stage, there is no evidence to prove that Crocs Company actively defended its rights when a large number of footwear products with the same or similar features appeared on the market, which made such decoration more general and losing its inherent distinctiveness. Based on the above analysis, the decoration claimed by Crocs Company does not meet the requirements for decoration with certain influence stipulated in the Anti-Unfair Competition Law and should not be protected.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
