Even if the imitation is presented as a “parody” (or “shanzhai”), it constitutes a violation of trademark rights and should be sanctioned: such is the decision of the Shanghai No. 2 Intermediate People’s Court.

“Shanzhai” is a term that designates products such as “fake” mobile phones, assembled in China from genuine parts procured from various factories, and using famous (usually foreign) luxury brands. There are still in China opinions voiced to claim that such use of famous brands does not constitute an act of infringement, since the phones in question do not even pretend to be produced by the brand owners and no confusion is possible.

A judgement rendered by the Shanghai No. 2 Intermediate People’s Court on November 23, 2011, seems to address this issue, in a different context.

A Chinese company, Shanghai  He Zhou Advertising Co., published in the That’s Shanghai magazine and its website www.urbanatomy.com, an article imitating the famous “Michelin guide” of restaurants, with a description and rating of French restaurants in Shanghai. The only difference was that the name was spelt with a G at the end: ‘Micheling”. The famous “Bibendum device” was reproduced as well. So, Wan Hui Da brought an action on behalf of Michelin before the Shanghai No. 2 Intermediate People’s Court.

After hearing, the court held that the defendant’s acts constituted trademark infringement. The Court ordered the defendant to cease publishing such magazine, and noting that 60,000 copies of the magazine had been circulated, awarded an amount of 60,000 Yuan as damages.

Comment

The Defendant’s arguments were somewhat contradictory. On the one hand, it admitted in a declaration at the beginning of the article that it had “introduced a copycat Micheling rating system”, and on the other hand, it claimed that the two trademarks were not similar…

The Court rejected the defendant’s arguments on the alleged lack of similarity, and also considered that the “warning” given in the article, which was an allusion to the particular concept of “shanzhai”, was insufficient to avoid harm to be caused to the trademark owner.