‘Shanzhai’ Michelin guide held to be infringing

In a case involving the MICHELIN mark, the Shanghai Number 2 Intermediate People’s Court has held that, even if the imitation of the mark was presented as a parody (or 'shanzhai'), it still constituted a violation of the trademark owner's rights and should be sanctioned.

The term 'shanzhai' designates fake products, such as mobile phones, which are assembled in China from genuine parts procured from various factories, and use famous (usually foreign) luxury brands. In China, there are still opinions voiced that such use of famous brands does not constitute trademark infringement, since the products in question do not pretend to be produced by the brand owners and, therefore, no confusion is possible.

A judgment rendered by the Shanghai Number 2 Intermediate People’s Court on November 23 2011 addressed this issue in a different context. Chinese company Shanghai He Zhou Advertising Co published in the That’s Shanghai magazine and its website at 'urbanatomy.com' an article imitating the famous Michelin guide of restaurants, which rated French restaurants in Shanghai. The only difference was that the name Michelin was spelt with a 'G' at the end (Micheling). The famous Bibendum device was also reproduced.

Michelin brought an action before the Shanghai Number 2 Intermediate People’s Court. 

The defendant’s arguments were somewhat contradictory. On the one hand, it admitted at the beginning of the article in the magazine that it had “introduced a copycat Micheling rating system”, but on the other hand, it claimed that the two trademarks were not similar. The court rejected the defendant’s argument with regard to the alleged lack of similarity, and also considered that the 'warning' given in the article, which alluded to the concept of 'shanzhai', was insufficient to avoid causing harm to the trademark owner.

The court concluded that the defendant’s acts constituted trademark infringement. The court ordered that the defendant cease publishing the magazine and, noting that 60,000 copies had already been circulated, awarded Michelin Rmb60,000 in damages.  

Paul Ranjard, Wan Hui Da Law Firm & Intellectual Property Agency, Beijing

The author's firm acted for Michelin in this case

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