Deere & Co is first trademark owner to enforce rights in combination of two colours
Deere & Company, owner of the John Deere brand of agricultural machinery, is the first owner of a registered trademark in China to enforce its rights in a combination of two colours.
In January this year, the Beijing Second Intermediate Court held that sales by Jotec International Heavy Industry, Qingdao and Beijing, of green harvesters with yellow wheels, as well as the promotion of those products, infringed Deere’s registration.
Deere is one of the few companies which have successfully registered a colour combination in China. It registered the colours green and yellow for agricultural and harvesting machines in Class 7 of the Nice Classification. The application noted that the colour green is applied to the body and the colour yellow to the wheels of the machinery. The mark was accepted for registration because Deere was able to establish that it had extensively and exclusively sold green harvesting machines with yellow wheels in China since 1997. The colour combination as applied to the machines was well recognised by the relevant public in China and was associated exclusively with Deere.
Jotec argued in its defence that the colours were not the same shade of green and yellow as registered by Deere and, therefore, the public would not be confused as to the source of the products. However, the court held that the colours were similar and that they were applied to the machinery in a similar arrangement, which created a style very close to that of Deere’s machinery.
Jotec was ordered to pay Deere Rmb450,000 in compensation, the statutory limit on damages currently being Rmb500,000. It is expected that this limit will be increased to Rmb3 million when the changes to the trademark law take effect on May 1 2014.
Sandra Gibbons, Marks & Clerk Hong Kong, Hong Kong
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