Chanel's N° 5 iconic eau de perfume was released in 1921 and has become quickly synonymous with sophistication and luxury. Since then, it has suffered many attempts of imitation and today we will go through one of the last of these attempts, N° 9 Flower of Story.
Presumably the inspiration for Chinese fragrance producer Yiwu Story of Love Cosmetics Co., Ltd. (hereinafter "Defendant"), who's N°9 perfume looked surprisingly similar in both its packaging and branding.
In 2019, Chanel filed a lawsuit against Yiwu Story of Love Cosmetics Co., Ltd. (hereinafter "Defendant") in front of the Shaanxi Intermediate People's Court citing unfair competition under Art. 6 of PRC AUCL, claiming Defendant's perfume being similar to Chanel's iconic fragrance was enough to cause consumers' confusion.
In 2020, Shaanxi intermediate people's court ruled that the trademark design of the two perfumes had obvious similarities, so that consumers could mistakenly connect Defendant's perfume with Chanel. Therefore, the court decided that Defendant shall immediately stop selling N°9 perfume and pay Chanel RMB 600 thousand for compensation.
Chanel N°5 vs Flower of Story N°9
The 1st instance court found that the evidence provided by CHANEL proved that the CHANEL No. 5 perfume has acquired certain influence in Chinese market, and both the product bottle and outer packaging box are distinctive in their designs. Also, the product bottle and packaging boxes of the Defendant are very similar to the CHANEL No. 5 perfume.
The court explained that: "The letters on the outer box of the infringing goods are not consistent with Chanel No. 5 perfume, but their color scheme and black lines outline are at the same position, the position of the text markings, the size of the text ratio is highly consistent, and the letters are less visually distinct for domestic consumers who are native speakers of Chinese characters, and the box of Chanel No. 5 perfume constitutes a close resemblance; in addition, it is sold together with the perfume bottle contained in the box, which is more likely to cause the relevant public to misidentify."
In 2021, the Defendant appealed to the Shanxi Province High People's Court. Arguments as below:
- Consumers used the trademark "N°5" and "CHANEL" used on the perfume packaging to distinguish source of products, instead of perfume bottle or its design itself.
- The perfume bottle of CHANEL is not distinctive. The Defendant provided evidence on the design of similar outer packaging box with black outlines and white based color, trying to prove CHANEL's outer package is not distinctive.
- The relevant public will not be misled due to the differences on the price of products and the wordings used on the package.
Interestingly, the 2nd instance court supported the Defendant's argument on the non-distinctiveness of the outer packaging. On the one hand, the main identifying part of the packaging and decoration is the black frame on a white background and the arrangement of the text content on it. According to the evidence provided by the Defendant, the outer packaging boxes of Gucci, Luthan's and other brands of perfume are rectangular cartons, and the decoration on the boxes also adopts the design of a black frame on a white background, with the black lines outlined in the same position, indicating that the design of the black frame on a white background is a common decoration for the outer packaging of perfume.
On the other hand, the evidence provided by CHANEL mostly focused on the perfume bottle instead of the outer package. Though CHANEL provided a photo proving the outer package was displayed in New York Museum of Modern Art in 1959, such evidence only proved the outer package has certain level of artistic in 1959 and therefore cannot support CHANEL's claim on Art. 6 protection.
In the meantime, the 2nd Instance Court upheld 1st instance court decision on the protection for bottle design. The court subsequently reasoned that: "Though the packaging and decoration is the inner packaging and decoration of Chanel perfume, but based on the special nature of perfume, and its publicity and sales, the promotion will generally accompanied by the promotion of perfume bottle, and the sales will also display the perfume bottle in the booth, the consumer's first impression of a perfume are from the perfume bottle, it can be determined that the inner packaging and decoration has had a certain influence and protectable under Art. 6".
Eventually, the court ruled that there are no visual differences on the bottle design between both parties' product, and therefore the identicality is enough for relevant public to be misled on the source of goods, and also mistakenly believed there's certain connection between the parties. Though Defendant argued on the price differences, the court determined it is not a standard on whether there's confusion since the confusion already happened prior to the purchase.
The court subsequently reasoned that: "Especially for the perfume as a luxury product, the bottle containing perfume itself is a commercial mark to distinguish the source of goods, some copycat products try to attract customers by deliberately imitating the pattern of luxury packaging, but its production costs are low and with high profits, there is a disturbance of the market order, and also damage to the image of large brands together with other hazards, such behavior should be regulated".
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