Charleston Co., Ltd. imported and sold “Three-Year Erguo Liquor” and “38-Year Old Special Erguotou”, in imitation of the symbols (trade dress) of the “Special Kaoliang Liquor” and “Kinmen 38 Special Kiaoliang Liquor” products of the Kinmen Distillery in violation of the Fair Trade Act

Chinese Taipei

Charleston Co., Ltd. imported and sold “Three-Year Erguo Liquor” and “38-Year Old Special Erguotou”, in imitation of the symbols (trade dress) of the “Special Kaoliang Liquor” and “Kinmen 38 Special Kiaoliang Liquor” products of the Kinmen Distillery in violation of the Fair Trade Act

Key Words:

Charleston Co., Ltd., Kinmen, Kaoliang liquor, product symbol (trade dress)

Reference:

Fair Trade Commission Decision of May 15, 2003 (the 601st Commissioners' Meeting); Disposition (92) Kung Chu Tzu No. 64

Industry:

Wholesale of Tobacco Products and Alcoholic Beverages（4423）

Relevant Law:

Article 24 of the Fair Trade Act

Summary:

1. The Kinmen Distillery filed a complain alleging as follows:
Charleston Co., Ltd. (Charleston) had been ordered by a disposition of the Fair Trade Commission (FTC) to cease importing and selling Three-Year Erguo (Double-Pot) Liquor, which imitated the Special Kaoliang (Sorghum) Liquor produced by the Kinmen Distillery. However, the Three-Year Erguo Liquor is still available for purchase on the market. What is more important, after the complainant launched its “Kinmen 38。Special Kaoliang Liquor”, the respondent went so far as to follow suit and launch an “Old 38。Special Erguotou Liquor” and use on it product symbols (trade dress) nearly identical to the container appearance, color scheme, and twin dragon design of the complainant's product, in violation of Article 20(1), and Article 24 of the Fair Trade Act. The complainant therefore asked the FTC to render a disposition ordering the respondent to cease its unlawful actions.

2. The twin dragon design product labeling used by the Special Kaoliang Liquor produced by the respondent is a “symbol (trade dress) commonly known to relevant enterprises or consumers” as set out in Article 20(1)(i) of the Fair Trade Act. All the trademarks of the gold colored labeling “Kinmen 38。Special Kaoliang Liquor” produced by the complainant and the “Kin 38。Men” and “Kinmen 38。Do” (means degree in Chinese language) applied for by the complainant have been granted approval by the Intellectual Property Office of the Ministry of Economic Affairs. Although these products differ slightly from the Special Kaoliang Liquor in their coloration, “twin dragon design,” and wording “38,” all belong to the series of Kinmen Kaoliang liquor and bear a twin dragon design, so all can be deemed “symbols (trade dress) commonly known to relevant enterprises or consumers.”

3. Though slightly different in name, in terms of labeling and appearance, both the “Old 38。Special Erguotou Liquor” imported by Charleston and the Complainant's Special Kaoliang Liquor are long-necked round-bellied transparent glass bottles with twin dragon design labels. Charleston is in the business of selling liquor products such as Kaoliang liquor, so it should be well aware that the twin dragon design is used on the “Special Kaoliang Liquor” and “Kinmen 38。Special Kaoliang Liquor” produced by the complainant. Charleston has admitted that it used symmetrical adjacent “triple fishes” [resembling the twin dragons] on the “Old 38。Special Erguotou” it imported in 2001, following the complainant's launching of its “Kinmen 38。Special Kaoliang”, which the complainant had applied to market on 23 December 1999 and formally begun selling in January 2000.
Rather than making the effort to develop a brand of its own, Charleston used on its containers the product name “Old 38。Special Erguotou,” which closely resembles the colloquial generic market name for Kaoliang liquor and fails to distinguish the product in any way. It furthermore used labeling and a container appearance, color scheme, and design that closely resemble those of “Special Kaoliang Liquor” and “Kinmen 38。Special Kaoliang Liquor”. So it clearly imitated symbols (trade dress) of another person. Based on the above evidence, Charleston obviously imitated the labeling design and the appearance of another person's product, and free-rode on and exploited the complainant's reputation, in violation of Article 24 of the Fair Trade Act.

Appendix:
Charleston Co., Ltd.'s Uniform Invoice Number: 97096889

Summarized by Chiang, Kuo-Lun; Supervised by Wu, Ting-Hung