Successful Representation of a Client in the Unfair Competition Dispute
Client Kangaroo Co., Ltd. (South Korea)
Kangaroo Co., Ltd. (South Korea) is a well-known supplier to the Russian market of car care chemical goods and car care cosmetics and one of the leading South Korean manufacturers of household and car care chemistry.
At least since 2003, the purifiers of the PROFOAM series produced by Kangaroo Co., Ltd. were actively promoted and sold in Russia. Meanwhile, on September 25, 2009, Premiere, LLC (Russia) registered a combined trademark "Profitom 2000" for the goods of Class 03 (bleach preparations and other substances for washing, preparations for cleaning, polishing, degreasing and abrasive processing, soaps), which was confusingly similar to the designation "Profoam 2000" placed on the products of Kangaroo Co., Ltd.
In addition, the purifiers under the name "Profitom" whose appearance had a high degree of similarity with the goods "Profoam" produced by Kangaroo Co., Ltd. began to appear on the Russian market.
It caused confusion among the consumers of “Profoam” and “Profitom” purifiers, the reallocation of consumer demand caused by the outflow of consumers misled by the external similarity of the products and, accordingly, the unreasonable advantages for the competitor in business activities. On Nov. 11,.2014, the Russian company AvtoBiz, LLC, which was the distributor of the purifiers “Profitom”, acquired the exclusive rights to the aforementioned trademark.
Kangaroo Co., Ltd. applied to Gorodissky & Partners for assistance in protection of their rights.
After reviewing the case materials the lawyers of Gorodissky & Partners established the presence of evidence of unfair competition in the actions of AvtoBiz, LLC, and developed a strategy for protecting the rights of Kangaroo Co., Ltd.
In particular, the Client was recommended to carry out a sociological survey, the results of which showed that the majority of the respondents (65.7%) considered being similar packages of "Profoam" and "Profitom" purifiers, and 73.5% could perceive the purifiers "Profoam" and "Profitom" as a product line of the same manufacturer. Furthermore, the majority of the respondents interviewed confirmed the high degree of similarity between the trademark “Protifom” and the designation "Profoam 2000," placed on the label of the purifier .
In addition, during the consideration of the case of unfair competition, the “fourth antimonopoly package” entered into force, which introduced new provisions on unfair competition and the actions of AutoBiz, LLC, could be recognized as unfair competition for two reasons at once (unfair acquisition and use of the trademark and unfair competition associated with creation of confusion).
The Administration of the Federal Antimonopoly Service for the Primorsky Territory stated that the purifiers of the “Profitom” series sold by AvtoBiz, LLC, copied and simulated the appearance of the purifiers of the “Profoam” series produced and sold by the Client, which caused confusion of these goods by consumers.
As a result of consideration of this case by the Primorsky Administration of the Federal Antimonopoly Service, a decision was made to recognize actions of AvtoBiz as unfair competition and violation of paragraph 2 of article 14.6. of the Federal Law "On Protection of Competition," which prohibits activities capable of causing confusion with the goods introduced by a business entity - competitor on the market on the territory of the Russian Federation, namely the copying or imitation of the appearance of goods, the packaging of such goods, the name, label, color scale, corporate style in general.
Furthermore, Primorsky Administration of the Federal Antimonopoly Service issued an order obliging AvtoBiz, LLC, to stop marketing in the Russian Federation of the goods "Profitom," whose appearance copied and mimicked the appearance of the goods "Profoam.”
The legality and validity of the decision and the order of the Primorsky Administration of the Federal Antimonopoly Service were confirmed by the Commercial Court of the Primorsky territory and by the Fifth Commercial Appeal Court.