22 DEC 2016
The Сompetitive Struggle for IP Protection in the Republic of BelarusLegal proceedings between two food manufactures resulted in precedent-setting decision, issued by the Judicial Panel on IP matters of the Supreme Court of the Republic of Belarus. The court decision is hopefully to start a new defensive practice for those companies who have been working on their reputation for years, and became victims of unfair competitors.
Even when the dishonesty is obvious, sometimes it is hard to protect your rights just by proving the lack of product’s similarity.
KAMAKO, the Belarusian manufacturer, launched its mayonnaise 'Provansal Stolichnyi' in 2014. This year the mayonnaise 'Stolichnyi' of ABC firm appeared on shelves, packaged with the design seemed to be questionable due to a probable similarity.
It took a long way to protect rights on the company’s product for KAMAKO. The packages of both products consist of elements, registered as trademarks, and the only fact of registration was not enough to protect the rights and block selling of mayonnaise under trademark of ABC.
During the court proceedings, the plaintiff claimed that the similarity of products was caused by the same composition and color of the appearance’s elements in general, that is why the consumers perceive both mayonnaises as of the same manufacturer.
KAMAKO not only applied to results of a social research on both products perception but also presented the expert opinion on a comparative analysis of composite design features of mayonnaise packages.
After consideration of all the information provided, the Judges panel pointed that all the elements of compared packages in their entirety have an evident similarity of their graphic design. Thus, the consumer, while choosing a product between the plaintiff’s and the defendant’s, in view of its interchangeability, perceiving the packaging as a whole, may be misled as to the product and its manufacturer.
The Court’s decision was to admit the actions of ABC firm, which lie in introduction of the circulation of a confusing product, as an act of unfair competition. Despite the defendant’s disagreement with such a decision, there is a little chance for successful appeal.
There is a hope the decision will help to exterminate practice of conscienceless copying and will give the efficient instruments for fighting IP infringements as to product's appearance in Belarus.