China: Ferrero Case (Distinctiveness As A Whole)

Ferrero International S.A.


Montresor (Zhangjiagang) Food Co., Ltd. and Tianjin Economic-Technological Development Area Zhengyuan Marketing Co., Ltd.

(2006) Min San Ti Zi No.3

  • Keyword: Distinctiveness as a whole
  • Source: SPC's Guiding case No.47; SPC Gazette (Issue 6, 2008)
  • Relevant provisions: Article 9 of the Provisions


The plaintiff Ferrero International S.A. (Ferrero), which was established in 1946 in Italy, has produced and launched the "FERRERO ROCHER" chocolates since 1982. The "FERRERO ROCHER" chocolates began to enter the Chinese market in February 1984. Since 1993, Ferrero progressively increased the investment and promotion of the "FERRERO ROCHER" chocolates in China, which enabled the products to acquire a high degree of popularity and reputation.

The defendant Montresor (Zhangjiagang) Food Co., Ltd. (Montresor), established in 1991, produced its own chocolate named "Jin Sha TRESOR DORE" with a packaging and decoration similar to the Ferrero's "FERRERO ROCHER" chocolates.

Ferrero filed an action with Tianjin No.2 Intermediate Court against Montresor for unfair competition. On February 7, 2005, the Court dismissed Ferrero's claim holding that the decoration of the packaging  of  "FERRERO ROCHER" is a common design which is not unique and that the consumers may not be confused or misled as the information indicated on the packaging (trademark and manufacturer) is different.

On appeal the Tianjin High Court rendered a judgment on January 9, 2006, overruling the first instance judgment and holding that the "FERRERO ROCHER" chocolate is a famous product, that its design/decoration is unique, and therefore, that it should be recognized as the "unique decoration of a famous product" as provided in the Anti-Unfair Competition Law. The court recognized the similarity of the decorations, confirmed the act of unfair competition and ordered the defendants to pay RMB 700,000 as compensation.

Montresor filed an application for retrial before the SPC.


On March 24, 2008, the SPC rendered a judgment upholding the second instance judgment, but lowering the damage to RMB 500,000.


The guiding significance of this case includes, the territory for determination of famous products, the determination of unique decoration and the overall consideration for consumer confusion. Firstly, for a product that is already known internationally, it is still necessary to consider whether it is known to the relevant public within the territory of China. Secondly, it is necessary to establish whether the various elements of the packaging and decoration are able to create noticeable features, thus constituting the "unique" decoration of the product. Thirdly, the determination of consumer confusion is to be established on the basis of an overall impression. Even though there may be differences in manufacturer names, trademarks, price, quality, taste and consumption levels between the two products, the degree of similarity is still likely to mislead the consumers.

Editor's note

This case is one of the ten cases selected by the firm that are relevant to certain articles of the "Provisions of the Supreme People's Court on Several Issues Concerning the Hearing of Administrative Cases Involving the Granting and Affirmation of Trademark Rights" (the Provisions) and focused on different issues of the Trademark Law. The cases are mainly selected from the SPC's Guiding cases, Gazette cases, Annual cases, and particularly, from the cases which were released on the SPC's press conference of the Provisions.

The Gazette cases, beginning in 1985, are published in the Gazette of the Supreme People's Court of the People's Republic of China ("Gazette") which is focused on the typical or model cases.

In 2008, the SPC started to publish an annual report on IPR cases, and since then, dozens of typical or model cases have been included each year.

Since 2010, the SPC also annually announces the year's Ten Intellectual Property Right Cases and Fifty Model Cases of Intellectual Property.

As for the Guiding cases, unlike the Gazette cases, annual cases or other model or typical cases, the Guiding cases are the first kind of cases that are given clear authority, and, they are subject to a particular selection and adoption process, much like judicial interpretations. In adjudicating similar cases, courts are required to consult Guiding cases.

During the press conference held on January 11, 2017, for the presentation of the Provisions, the SPC released several cases related to the Provisions, among which, the "Qiaodan case", the "007 BOND case" and the "Haitang Bay case".

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions