USA Duracell (the plaintiff) is the world leading manufacturer of high-performance alkaline batteries. It has used "DURACELL" trademark worldwide since 1964, and the copper and black colored graphic mark since 1973, and they are also registered in China as trademark and color combinations such as , and , designated for use in Class 9 batteries products.
The battery sold by the defendant used the combination of copper and black colors in its battery, and the length ratio of the colors, which is about one-third of copper, two-thirds of black, and the copper is on the side of anode, the black is on cathode; it’s almost the same as the color combination trademark of Duracell. In addition, the battery labeled with "POWERCELL" wording and the text is in white font in black shade, as shown below.
Entrusted by Duracell, Unitalen lawyers initiated litigation at Zhejiang Province Yiwu People’s Court.
After trail, the court held that Duracell and its color combination trademarks have enjoyed high distinctiveness and popularity, well-known to consumers and the consumers can identify Duracell by its color combination and distinguish it from the batteries produced by another brand. The alleged infringement battery uses similar color combination in similar ratio of length with a similar label “POWERCELL”, which can cause misidentification among consumers and mislead them to believe the two products are somehow related, therefore it has constituted infringement on Duracell’s exclusive right to use the cited trademarks.
A color combination trademark refers to a trademark composed of two or more colors in a certain proportion and in a certain sequence. The inherent distinctiveness of a trademark that only uses color as its constituent elements is relatively weak compared to other traditional types of trademarks. Normally, color combination trademarks need to be used for a long time to obtain distinctive features. In this case, Duracell Company has provided sufficient evidence to prove that its color combination trademarks have developed a unique connection with Duracell through long-term and extensive use, publicity and promotion. Therefore, the court did not accept the defendant's defense that the color combination has become a common packaging and decoration in the industry. This case provides reference to future color combination trademark right cases.