By Sun Juanjuan
Food imitation should not result in confusion between the imitation goods and the original one; otherwise, it may lead to unfair competition and infringe the right to exclusive use of a registered trademark.
For example, in the history of food regulation, the USA applied the imitation regulation to new food products which derogated from standards of identification with regard to a certain existing goods by adding some new additives. Such development was permitted by the progress of food technology but inconsistent with the requirement of authenticity at that time. In order to avoid confusion (since the imitation food might look like the original one) it was then required that the new developed food be labeled with the mention “imitation”, which meant that it was nutritionally inferior product.
Though food imitation can be regarded as a way to improve food quality, sometimes the malpractices that come with this practice not only break of Anti-Unfair Competition Law or Trademark Law but also give rise to food safety issues. In order to illustrate this concern, it is interesting to note certain cases of food imitation in China.
First of all, the food imitation may be no more than a show for public relation. Recently, a restaurant named “Obama Fried Chicken” opened in Beijing, China. Because of its short name OFC and its logo “Obama the Colonel”, it rapidly caught public attention.
Indeed, the restaurant’s image and logo bore a strong resemblance to KFC, which is a chain of fast food restaurants originated from the United States (with its famous fried chicken and vivid logo, “the Colonel”). As a response, the KFC Company made a statement to take legal action on the ground that it infringed on the brand trademark. Facing the risk to be sued, the Chinese restaurant was renamed to UFC. As a matter of fact, it is not the first time that KFC has fought against imitation (see the KFG case). It is however likely that the consumer would not be misled by those imitated brands considering the international renown of the true KFC brand.
Secondly, imitation of food products may cause confusion in such a way that the consumer may genuinely mistake them for the original goods. Nowadays, more and more imitated food products with a high degree of resemblance in their packaging with certain famous food products have accessed the markets. One example is the difference between康师傅 vs. 康帅傅 for convenient noodle or 雷碧 vs. 雪碧 for Sprite.
Here, they are taking advantage of the renown of the famous brand by playing the tricks on the Chinese characters in order to mislead consumers. Moreover, the selling places targeted by the manufacturers of such imitation goods are often stations or touristic places. The reason is that these are transit areas where people always come and go in a hurry and may only visit once. Therefore, they may not only have little time to distinguish but also have difficulties to turn against to when they find out the wrongdoing. As a result, the use of a trademark which is similar to a registered trademark on the same kind of commodities is an infringement upon the right to exclusive use of a registered trademark (Article 52, Paragraph 2).
In addition to Trademark Law, one can also resort to the Anti-Unfair Competition Law in order to fight against these malpractices. For example, the use of a similar name, package or decoration of a famous commodity which may confuse consumers falls under the area of unfair competition （Article 5, Paragraph 2). The purpose is not only to protect a trademark or to guarantee fair competition, but also to ensure food safety and thus to protect public health.
In most cases involving imitation, the aim is to take advantage of a famous brand. However in some situations, the purpose of the imitation may be harmless (for example in the case of the “Obama fried chicken” restaurant, the purpose was only to catch the public attention). Nevertheless, imitation food products may sometimes bring about food safety issues. They may be illegally produced, there may be an abuse or a misuse of additives or there may not always comply with standard sanitary considerations. Besides, the misbranding itself can constitute a violation under the Federal Food, Drug and Cosmetic Act of USA. Therefore, in the view of food safety, it is also necessary to take action to stop this kind of food imitation.
Additionally, the implementation of food safety regulations to fight against food imitation may also act as a strong deterrent. Taking China as an example, when there is a case of imitation of a food product which violates the Anti-Unfair Competition Law, the provision is that the supervisor shall order to stop the illegal activities, confiscate the illegal income and impose a fine equivalent to one to three times the illegal income. The supervisor may also revoke the business license if the facts are really serious ( Article 21). If adulterated goods are involved, an investigation can be carried out in accordance with Criminal Law, in which the punishment includes fine, prison sentence or even sentence to death in case of deadly products （Article 24）. Therefore, if targeted under the name of food safety, the legal liability is different and stricter than the requirement in the Anti-Unfair Competition Law or Trademark Law.