Sandisk's Red-grey Color Combination Mark Was Infringed And The Infringer Was Held To Be Unfairly Compete With Sandisk

The Shenzhen Intermediate Court recently concluded a trademark infringement and unfair competition lawsuit between SanDisk Co., Ltd. ("SanDisk"), Nanning Big Whale Trading Co., Ltd. ("Nanning Big Whale"), and Shenzhen Big Whale Trading Co., Ltd. ("Shenzhen Big Whale"). The court held that the defendants infringed Sandisk's mark and constituted unfair competition. The court ordered economic compensation and reasonable costs of RMB150,000 (USD 21,206).

(Cited Mark)

The court found that Nanning Big Whale and Shenzhen Big Whale jointly produced and sold the CK MicroSD memory card that SanDisk accused of infringement. According to the evidence of fame such as sales, publicity, and honors provided by SanDisk, it can be determined that as early as 2018, the SanDisk MicroSD memory card enjoyed a certain market fame and reputation across China, and can be seen as goods with a certain influence. SanDisk has been selling and promoting SanDisk MicroSD memory cards since 2011, and has not changed its red-gray color combination decoration design for many years. SanDisk uses red-gray colors and their permutations on SanDisk MicroSD memory cards "." It has a certain degree of significance. After years of use and promotion of SanDisk's overall decoration design, the relevant public has associated said decoration with SanDisk's MicroSD memory card, and has the function of distinguishing the source of goods, which is a unique decoration of SanDisk. After comparison, Nanning Big Whale and Shenzhen Big Whale used identical decoration as SanDisk's "" on the CK MicroSD memory cards they produced and sold. Considering the SanDisk MicroSD memory card and its good reputation and uniqueness of the decoration, when the relevant public pays general attention, it is easy to confuse and misidentify the source of the CK MicroSD memory card. In particular, Shenzhen Big Whale also used SanDisk when selling CK MicroSD memory cards. In addition, the defendants falsely used product information, copyright, and trademark rights statement of SanDisk's parent company, Western Digital Corporation. Therefore, it can be determined that Nanning Big Whale and Shenzhen Big Whale, without the permission of SanDisk, used the logo "" identical to the decoration of SanDisk's MicroSD memory card that have a certain influence on SanDisk, constituting unfair competition.

At the same time, Nanning Big Whale and Shenzhen Big Whale used the exact same logo on the CK MicroSD memory card product that was identical as the blank memory card approved for use for SanDisk registered trademark "" with reg. no. 31557071, and sold the said product, infringed SanDisk's trademark right.