[author: Hongdan LI]

With regards to popular or unique quality clothing styles, imitation often occurs. For such imitation, it is difficult to regulate from the perspective of trademark infringement, and when claiming copyright infringement, it will also face difficulties as to whether the clothing style constitutes a work.

Recently, Guangzhou Internet Court rendered the judgment of (2021) Yue No. 0192 Civil First Instance No. 11888, finding that the defendant Lai Zhe Company's imitations of 99 clothing styles of the plaintiff Ai Bo Company constituted unfair competition, and also provided an idea for the handling of such clothing style imitation cases. This article will discuss the possibilities and requirements for clothing styles to be protected by the Anti-Unfair Competition Law in conjunction with this case.

1. The Legal Basis for Imitation of Clothing Styles Constitutes Unfair Competition
2. Article 6 of the Anti-Unfair Competition Laws stipulates that

Business operators shall not carry out the following confusing acts, causing people to mistakenly believe that they are other people's goods or have specific connections with others:

......

(4) Other confusing act that is sufficient to cause people to mistakenly believe that it is other people’s goods or has a specific connection with others.

Since clothing styles do not belong to the types of commercial signs listed in Article 6, Items 1 to 3 of the Anti-Unfair Competition Law, Guangzhou Internet Court mentioned the following two reasons when reasoning why the plaintiff could claim the provisions of Article 6, Item 4 of the Anti-Unfair Competition Law.

1. Article 6 of the Anti-Unfair Competition Law is derived from Article 10-2 of the Paris Convention for the Protection of Industrial Property to which China is a party, prohibiting “all acts that cause confusion to competitors’ business entities, commodities or industrial and commercial activities by any means”. This means that it is not limited to any means, including imitation of commercial marks, as long as it causes confusion about the business entities, commodities or industrial and commercial activities of other business operators, it should fall in the scope of evaluation in Article 6.

(2) Article 13 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Anti-Unfair Competition Law of the People's Republic of China (hereinafter referred to as the “Anti-Unfair Competition Interpretation”) clearly explains the confusing behavior identified in Item 4, the catch-all clause, of Article 6 of the Anti-Unfair Competition Law, that is, where “unauthorized use of signs ‘with certain influence’ other than those provided for in Items 1, 2 and 3 of Article 6 of the Anti-Unfair Competition Law” is sufficient to cause people to mistakenly believe that they are other people’s goods or have a specific connection with others, the people’s court may make a determination pursuant to in Article 6, Item 4 of the Anti-Unfair Competition Law. In this case, Guangzhou Internet Court held that Article 13 of the Anti-Unfair Competition Interpretation did not explicitly exclude overall confusion, so the catch-all clause of Article 6 of the Anti-Unfair Competition Law not only included the marks “with very influence”, but also the combination of multiple elements to constitute the overall counterfeiting and confusion. Therefore, the court accepted the plaintiff's legal basis for asserting its claim on the basis of Article 6, Item 4 of the Anti-Unfair Competition Law.

2. Article 12 of the Anti-Unfair Competition Interpretation provides:

If the people's court finds that it is identical or similar to a mark that “has a certain influence” as provided for in Article 6 of the Anti-Unfair Competition Law, it may refer to the principles and methods for determining whether trademarks are identical or similar.

“Causing people to mistakenly believe that it is another person's goods or have a specific connection with another person” stipulated in Article 6 of the Anti-Unfair Competition Law includes mistaking it to have a specific connection with another person such as commercial association, licensed use, commercial title, advertising endorsement, etc. ”

Article 12 of the Anti-Unfair Competition Interpretation clearly lists the acts “causing people to mistakenly believe that there is a specific connection with others”, which include the misconception that there is commercial association with others, licensed use, commercial titles, advertising endorsements, etc. In this case, Guangzhou Internet Court found that the confusion that incorporated the affiliation, accreditation relationship, etc. indicating a commercial connection was also the confusion regulated by Article 6 of the Anti-Unfair Competition Law. The conduct carried out by the defendant may easily cause consumers to mistakenly believe that the defendant’s same clothing has basically the same quality guarantee as the plaintiff, and the defendant has not provided evidence that the quality of its clothing is not lower than that of the plaintiff, and some consumers' misidentification of the clothing quality recognition relationship is also subject to the second paragraph of Article 12 of the Anti-Unfair Competition Interpretation.

2. Requirements for the Application of Law where the Imitation of Clothing Styles Constitutes Unfair Competition

When evaluating whether the defendant's conduct constituted unfair competition, Guangzhou Internet Court held that the conduct regulated by Article 6, Item 4 of the Anti-Unfair Competition Law must meet the three requirements of “the defendant constitutes unauthorized use”, “the clothing involved in the case has a certain influence” and “it is likely to cause confusion”. The specific comments in this case are set out below.

1. The defendant constitutes unauthorized use.

In this case, the plaintiff adduced evidence that the defendant's 99 clothing styles imitated or copied the plaintiff to varying degrees, and in the case of large-scaled similarity, the defendant did not prove that the relevant clothing styles were their original designs, nor did they provide the source of the design. The defendant's imitation or copying of the plaintiff's clothing styles had reached a high degree of certainty, so the court found that the defendant constituted unauthorized use.

2. The clothing style involved in the case has a certain degree of identification and influence.

First of all, the plaintiff’s MO&CO clothing brand has a unique style, and its clothing styles have a certain degree of identification in the market.

Secondly, in the Tmall store operated by the defendant, a number of consumers compared and evaluated MO&CO and Hua Yi. For example, “Does this store focus on imitating MO&CO?” These consumer comments show that the plaintiff’s clothing style design has been well known to some consumers in the clothing field as a whole, and can be considered to have a certain influence.

Thirdly, the plaintiff’s official flagship store has a high reputation in terms of the number of followers, sales ranking, total number of customers, total number of orders, total number of pieces consumed, and total payment amount.

3. The defendant’s counterfeiting behavior is sufficient to cause confusion among consumers.

Regarding the requirement that it is likely to cause confusion, Guangzhou Internet Court believes that the following three aspects should be considered.

First of all, consumers can search for and find the clothing of the defendant which is the same as the plaintiff through the “search for the same style” function provided by various e-commerce platforms. In the meanwhile, its clothing advertising slogans, model poses, and clothing matching are similar to the plaintiff, which is likely to cause consumers to mistakenly believe that the same clothing of the defendant has the same quality assurance as the plaintiff, and enhance the identification of the defendant’s clothing.

Second, in the circumstance that the defendant failed to prove that the quality of its clothing is substantially equivalent to that of the plaintiff, the defendant’s counterfeiting behavior will cause confusion among consumers about the quality of the clothing of both parties.

Finally, the defendant’s identical clothing was introduced to the market relatively close to the plaintiff’s clothing, and there was overlap in market between the two parties. In addition, as the clothing style is the same, there is a clear overlap in consumer groups. Since the defendant’s counterfeiting behavior of copying the plaintiff’s clothing as they are will cause consumers to be unable to accurately search for the plaintiff's clothing they wanted to buy, it will thereby increase the search cost of consumers and disrupt the market order. Therefore, the defendant’s conduct is the objective condition for consumer confusion.

Based on the above, Guangzhou Internet Court found that the defendant’s imitation of the plaintiff’s 99 clothing styles violated the provisions of Article 6, Item 4 of the Anti-Unfair Competition Law, and constituted unfair competition.

3. Conclusion

It can be seen from the above cases that in the circumstances that the plaintiff’s clothing style has a certain influence, if the defendant imitates the plaintiff’s clothing style to varying degrees, this kind of counterfeiting may be determined to constitute unfair competition. Guangzhou Internet Court also mentioned that if three or five pieces of clothing lacking originality are similar, it may not be ruled out that their respective designs are purely coincidental. Therefore, the protection of clothing styles is closely related to factors such as the popularity of clothing brands, originality, and whether it causes consumer confusion.