IP "Impression Dahongpao" Trademark Infringement: Punitive Damages Apply! Compensation of 460,000 Yuan Awarded
By Wang Dianjun, Guangzhou Sailixun Market Research Company
In recent years, the cultural tourism market has been booming, with various cultural tourism IPs emerging, such as Harbin Ice and Snow World and Tang Dynasty Ever-bright City. However, this has also led to an increasing number of intellectual property protection issues.
Recently, the Fujian Provincial Higher People's Court concluded a trademark infringement case related to a cultural tourism IP and ruled that punitive damages should apply. The plaintiff was awarded 460,000 yuan in compensation.
Case Background
"Impression Dahongpao" is a trademark held by Impression Dahongpao Company. Founded in 2009, the company has spent years operating and promoting the "Impression Dahongpao" project, making it one of the top-ranked live performance projects nationwide. It has become a tourism calling card for Wuyishan and Fujian Province. The company has also been listed on the New Third Board and has received numerous honors.
The defendant in the trademark infringement lawsuit is Wuyishan Jingjing Brewing Co., Ltd. According to the Sailixun Litigation Database, the defendant had signed a cooperation agreement with the plaintiff, authorizing the use of the "Impression Dahongpao" live performance name, materials, and logo on beer and other products. The cooperation period was from January 1, 2021, to December 31, 2027.
However, in the second half of 2021, the two parties had a dispute over fee payments. Subsequently, the court ruled that the cooperation agreement was terminated on September 8, 2021.
Just a few days after the termination of the cooperation agreement, the defendant registered the trademark pattern as their own work with the copyright management department and obtained a copyright registration certificate. They continued to use the trademark on product packaging, in promotional materials, and on public channels such as Douyin stores.
First Instance
After noticing this situation, the plaintiff filed a lawsuit for trademark infringement in the Nanping Intermediate People's Court of Fujian Province, arguing that punitive damages should apply and demanding 460,000 yuan in compensation for economic losses.
The court ruled that the defendant, having had a previous cooperation with the plaintiff, was clearly aware that the "Impression Dahongpao" trademark belonged to the plaintiff and had been in use for years. After the cooperation ended, the defendant continued to use the trademark and maliciously registered the "Impression Dahongpao" logo as a copyright. This behavior was deemed to have the intent to infringe intellectual property rights and could easily cause consumer confusion and diminish the distinctiveness of the well-known trademark.
The court found that the defendant's actions constituted trademark infringement and applied punitive damages, fully supporting the plaintiff's claim for 460,000 yuan in compensation.
Dissatisfied with the first-instance judgment, the defendant appealed to the Fujian Higher Court.
Second Instance
In the appeal, Jingjing Company raised several arguments:
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The company holds a copyright certificate for "Impression Dahongpao," and its use of the copyright logo is legal and does not infringe on any rights.
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The trademark's fame is limited to Wuyishan City, with low recognition in other areas. Compared to similar performance projects, it does not have an advantage in market share, sales region, or profits. Therefore, it does not meet the criteria for a well-known trademark.
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Even if the trademark is considered well-known, its registered category is Class 41 for service trademarks, while the company's products are beer and other beverages. There are clear differences in product attributes and consumer groups, so consumers would not be confused.
The Fujian Higher Court ruled as follows:
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Although the "Impression Dahongpao" live performance is limited to Wuyishan City, evidence shows that its audience includes consumers from across the country and even worldwide. Thus, its influence and fame extend nationwide.
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Among tourism-related consumers, the "Impression Dahongpao" brand has gained high recognition and influence.
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The defendant's actions could easily lead to consumer confusion and mislead them into believing there is a specific connection between the two parties.
In conclusion, the Fujian Higher Court dismissed the defendant's appeal and upheld the first-instance judgment.
Summary
From the first and second-instance trials, it is evident that in determining trademark infringement, courts not only consider whether consumers are confused but also take into account the fame and influence of the trademark, as well as the potential to diminish its distinctiveness.
Therefore, in preparing evidence for trademark infringement cases, it is essential to conduct surveys on consumer confusion and provide proof of the trademark's market fame and influence.
