Liu Shen has recently obtained the final instance judgment from the Jiangsu High People's Court, securing a definitive win for our client, a world renowned biopharmaceutical enterprise, in its unfair competition action against a generic drug manufacturer for unauthorized use of identical or similar trade dress of a well known product.
The case concerns the proprietary trade dress of a prescription medicine that has been marketed in China for more than four decades and is widely prescribed for cardiovascular disease treatment. The complete visual identity consists of a fixed base color scheme, decorative colored stripes, specification specific identification color blocks, distinctive text layout and bespoke color combinations.
On appeal, the infringing party raised multiple contentions, challenging the distinctiveness of the subject trade dress, visual similarity between the competing packages, likelihood of confusion for prescription drug users, reliance on regulatory approvals, and the reasonableness of damages awarded at first instance. A key complexity stemmed from the fact that the asserted right derives from long term market use, while pharmaceutical packaging is subject to stringent drug regulatory requirements mandating standardized display of generic names, specifications, approval numbers, ingredient lists and other statutory information. Consequently, the core dispute centered on drawing the legal demarcation line between mandatory labelling obligations under pharmaceutical regulation and the protection of rights attaching to commercial identifiers.
Against the multi faceted appellate arguments advanced by the opposing party, the Liu Shen team systematically mapped the pharmaceutical industry landscape and the regulatory regime governing prescription drugs. Drawing on deep seated experience in trade dress protection, the team precisely defined the full scope of protection for the proprietary trade dress. We constructed rigorous, tiered responsive arguments supported by comprehensive evidence and legal reasoning to address each ground of appeal, and our submissions were fully adopted by the appellate court.
This ruling clarifies the legal boundaries for trade dress protection within the pharmaceutical sector. It confirms that statutorily mandated labelling contents under drug control rules do not bar protection for distinctive product trade dress. The judgment dispels prevalent misconceptions such as “no likelihood of packaging confusion for prescription only medicines” and “regulatory approval of drug labels absolves parties from liability for copying”. It also establishes jurisprudence supporting substantial damage awards in pharmaceutical trade dress litigation.
Through sustained circulation in the marketplace, distinctive pharmaceutical trade dress can acquire source identifying function, build consumer trust and accrue market goodwill. Safeguarding such rights is critical not only to corporate brand equity but also to safe medication identification by patients and medical practitioners, as well as fair competition within the pharmaceutical market. This final instance success underscores Liu Shen’s expertise in pharmaceutical unfair competition matters and commercial identifier brand protection. It delivers a replicable practical framework for pharmaceutical companies seeking to protect product trade dress under China’s Anti Unfair Competition Law.
The case was handled by Stephen ZOU, YAN Jiajia, LIU Zhijie and ZENG Yunpeng.
