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Jipyong Represented Aekyung Industrial Co., Ltd. In A Design Dispute Related To The Package Design For “Himalaya Pink Salt Toothpaste” Filed By LG Household & Health Care And Obtained A Non-Suspicion Decision

2020.05.11

Jipyong’s IP & Technology Team represented Aekyung Industrial Co., Ltd. in a brand and design dispute between LG Household & Health (the maker of Perio Toothpaste) Care and Aekyung Industrial Co., Ltd. (the maker of 2080 Toothpaste), which are No. 1 and No. 2 in the toothpaste market, respectively, and secured a complete victory by obtaining a non-suspicion decision.


In a case filed by LG Household & Health alleging that Aekyung imitated the package design including design drawings, etc., of “Himalaya Pink Salt Toothpaste”, Jipyong represented Aekyung Industrial Co., Ltd., et al, and obtained a non-prosecution decision (non-suspicion).


The design dispute was about the package drawing of LG’s Himalaya Pink Salt Toothpaste, which was released 2 weeks earlier than Aekyung’s product. LG filed a lawsuit against Aekyung, alleging that the package design of the two companies’ products are substantially similar. In response, the patent advisor of the Seoul central district prosecutors' office reviewed the investigation report and decided that it is presumed that Aekyung’s design is made based on LG’s design, and that Aekyung willfully imitated the design, since LG confirmed its draft design first, and the design drawings of the two products are almost identical. Based on the decision, the advisor gave the opinion indicating, “it constitutes a willful unfair trade conduct (breach of design rights)” to the prosecutor. In order to argue against the patent advisor’s opinion, Jipyong’s attorneys submitted evidence materials describing the actual process of draft design confirmation, and made lots of efforts to convince that there are domestic and overseas designs that Aekyung used as reference and benchmark, causing the prosecutor to investigate the evidence verifying the argument that the product design was independently developed.


In addition, The attorneys endeavored to convince the prosecutor from the point of view of legal principle by arguing that different criteria are required for verification of ‘whether to determine that the design is based on the plaintiff’s design’ in civil cases and ‘the intentionality of the act of imitation’ in criminal cases. Due to the efforts, the prosecutor accepted Aekyung’ defense that the product design was independently developed and there was no intention to imitate other designs, and finally held the non-suspicion decision.


This dispute gained lots of traction from the market insiders as it was an intellectual property dispute related to the newly released products of No. 1 and No. 2 companies in the household supplies industry. Besides, it is very rare to rebut the decision of the Korean Intellectual Property Trial and Appeal Board and the patent advisor’s legal opinion. In this regard, the victory in this dispute is highly meaningful.

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