For years of business operation, Yihai Kerry, a food products processing enterprise in China, has utilized the trademark No. 3863827 (黄金比例) and its patterns on packaging of the Arawana (金龙鱼 Jin Long Yu, a best seller in the Chinese cooking oil market) blend oil product, and has invest much of its advertising resources to secure popularity of the trademark. The afore-mentioned trademark was registered by Wilmar Trading (China) Pte. Ltd. on Class 29 product (cooking oil and so on) and shall remain effective until January 6, 2026, but was later found to be infringed by Tianjin Fengmei Edible Oil Co., Ltd. (hereinafter referred to as Fengmei Company) for its usage on the outer packaging of its own product. Therefore, Yihai Kerry Company sued Fengmei Company to Tianjin No.1 Intermediate Court, claiming an immediately cease of infringement on its exclusive right to use the registered trademark No.3863827, as well as an apology statement in the local newspaper, and a compensation for the economic losses and the reasonable expenses paid to stop the infringement, totaling RMB300,000. 

According to the court of first instance, Fengmei's mentioning of 黄金比例 (namely, golden ratio) on its product does not constitute the use of sign as trademark. Such use is established only when the word 黄金比例 has certain connections with the trademark owner to prevent public from confusing or misunderstanding products or services with different origins. The word 黄金比例 is a description of the characteristics of blend oil produced by Fengmei Company, which demonstrates that the ratio of various raw materials is reasonable and appropriate, hence the word 黄金比例 is not used as a trademark. Also, Fengmei Company uses its registered trademark "香美来" in a prominent position of its products, and Yihai Kerry Company also uses its trademark "Arowana" in a prominent position of its products. The obvious difference between the trademarks of Yihai Kerry Company and Fengmei Company will not cause confusion among the consumers about the sources of the related products. On such ground, the court of first instance rejected the claims of Yihai Kerry Company. 

Unsatisfied with the court's decision, Yihai Kerry Company filed an appeal with the Tianjin Higher Court. 

The court of second instance held that: the exclusive right to use the registered trademark No.3863827 "黄金比例" should be protected by law within the validity period. Fengmei Company highlighted the use of "黄金比例", and marked it in the prominent position of the product, which obviously exceeds the form of general description. Fengmei Company failed to provide sufficient evidence to prove that there are national standards, industry standards or industry practices to identify the "黄金比例" as a certain characteristic of edible oil products. The trademark "黄金比例" involved in this case has gained certain popularity after being publicized and used by the oblige, while Fengmei Company, as an enterprise engaged in edible oil production for many years, should have apprehended this fact. Fengmei Company highlights the use of "黄金比例" with the fonts almost identical with those of the registered trademarks involved. Also, the location of the word "黄金比例" (i.e. between the "trademark" and "edible plant blend oil") and two semi-circular curves surrounding the word "黄金比例" fully resemble the decoration on the same kind of goods of Yihai Kerry Company. Should Fengmei Company use the "黄金比例" in good faith for the sake of clearly describing the ratio of its edible oil ingredients, the sued infringement logo would not have contained the two semi-circular curves which, though not included in the trademark involved, caused the disputed logo to be more similar to the trademark and the decoration thereof actually used by the obligee. Therefore, the use behavior of Fengmei Company can be hardly deemed as good faith. Fengmei Company uses the "黄金比例" logo on edible oil, which is only slightly different from the registered trademark involved, which belongs to the case of using the same trademark as the registered trademark on the same commodity. Although Fengmei Company highlighted the use of the "香美来" trademark on the alleged infringing goods, it did not submit evidence to prove the popularity of the "香美来" trademark, and when consumers purchase the goods, they usually choose by virtue of their overall impression of trademarks. According to the cognitive habits of ordinary consumers, the "黄金比例" logo itself will be recognized as a trademark. As a result, ordinary consumers may confuse or misunderstand the source of goods. To sum up, Fengmei Company's use of "黄金比例" is not legitimate. Without the permission of Yihai Kerry Company, Fengmei Company uses the same trademark as the registered trademark involved in the case on the same goods, which infringes the exclusive right to use the registered trademark involved in the case of Yihai Kerry Company. The court of second instance hence corrected the ruling of first instance, ordering Fengmei Company to immediately stop infringing the exclusive right to use the registered trademark No.3863827 of Yihai Kerry Company, and compensate for economic losses and reasonable rights protection expenses of RMB 100,000. The court rejected other claims of Yihai Kerry Company. 

This case has certain reference significance for standardizing trademark use behavior according to law and clarifying descriptive use from the use of sign as trademark by focusing on the inherent role of trademark in identifying the source and preventing confusion. According to the use behavior, one should investigate whether there is a corresponding general consensus or general cognition in the industry standards or norms in related fields; in view of the trademark involved, one should investigate its use mode and scope in social life, and judge its descriptive element degree and generalization level. The use mode, location, environment and collocation elements of the alleged infringement are included in the evaluation factors under the consumer identification standard for overall identification, and whether the use behavior has objective confusion possibility and subjective intentional attachment shall also be taken into an overall consideration.