Summary of the case
Recently, Dao Ge Ka Te (Beijing) Media & Culture Development Co., Ltd. (“DGKT“) sued ABInBev (China) Sales Co., Ltd. (“ABInBev“) claiming that ABInBev’s newly launched cocktail products with the brand name “MIXXTAIL” have infringed its trademark rights towards “Mojito” which was registered by DGKT as a trademark in China.
DGKT asked ABInBev to stop using the word “Mojito” on its cocktail products and pay RMB 1.32 million to DGKT as a compensation of its economic loss. The court in Haidian District, Beijing has accepted this case.
DGKT claimed that it was the owner of the Chinese registered trademark “Mojito” in Class 33 (registration No. 12467908) and had been using such registered trademark on cocktail products since its registration.
DGKT also claimed that since April 2015, ABInBev had been selling its “MIXXTAIL” branded cocktail products bearing the word “Mojito” in China knowing that DGKT owned the trademark rights towards “Mojito”. In order to prove this, DGKT had purchased a sample of the alleged infringing products in a supermarket in Beijing and had notarised the purchase.
DGKT believed that ABInBev had infringed its trademark right towards “Mojito” by selling cocktail products with its registered trademark “Mojito”. Such action was for profit and had caused economic loss to DGKT.
Accordingly, DGKT sued ABInBev for trademark infringement and requested the court to order ABInBev to stop selling products which infringe DGKT’s trademark rights towards “Mojito” and stop using “Mojito” on all promotion materials. DGKT also claimed for RMB 1,320,750 as a compensation of its economic loss.
This case is now in the process of court trial.
Comments from China Filing
ABInBev just launched its “MIXXTAIL” branded cocktail products in November 2015. Now it being sued for trademark infringement will undoubtedly affect its sale of the cocktail products in China.
However, it seems that ABInBev may have a good chance to win this case because “Mojito” should have become a generic name for a certain kind of cocktail after long term use, which disqualifies it to be trademarked according to Chinese laws. As such, ABInBev should have good chance to invalidate such trademark, which will render the trademark infringement case filed by DGKT groundless.
That said, if DGKT applies for an injunction and is able to provide sufficient guarantee in support of the injunction, it is still able to stop ABInBev from selling the products in dispute in China. This surely will have great impact to ABInBev’s business in China.
Take-away
Big companies should actively monitor the registered trademarks in China and if any generic name is gazetted or registered as a trademark in China, the concerned companies should work together to oppose or invalidate such trademark before it causes them any substantial trouble.