The fortunes of Binggrae, which makes the ice cream 'Melona,' and Seojoo, which makes 'Melon Bar,' have diverged after about a year. On the 28th, according to the distribution industry, Binggrae won a lawsuit against Seojoo for packaging plagiarism on the 21st. This comes about a year after Binggrae lost in the first trial in September last year.
According to Binggrae, the Civil Division 5-2 of the Seoul High Court (presided over by Judge Kim Dae-hyun) made a ruling acknowledging the investment and efforts involved in the design of Melona's packaging. This means that the court recognized the causal relationship that consumers recognize the Melona brand upon seeing the packaging and subsequently purchase it.
This is an acceptance of the uniqueness of the design that Binggrae has continuously explained. Binggrae positioned melon images on both sides of the packaging and used a squared font to evoke the image of the Melona ice cream bar. Furthermore, the decision to use a deep green at both ends of the packaging with a lighter color in the middle is presented as the distinctive feature of Melona.
Last year, the court focused more on the notion that monopolizing colors for product packaging is not appropriate for public interest. According to the ruling at the time, it stated, 'Colors that can be used for product packaging are somewhat limited based on the type of product, and the principle is that colors should be freely selectable, especially for products made from fruit, as anyone should be able to use the inherent colors of fruit; monopolizing them for a specific person is not suitable for the public interest.' Also, 'It is very rare to identify the source of a product by its packaging color. Given the recognition of the product (Melona), it is judged that the product name itself will overwhelmingly attract consumers' attention over other aspects of the packaging.'
In the legal community, the significant factor influencing the changes in the first and second trial judgments is the presentation of research results by Binggrae and the company's attorneys, which showed that actual confusion occurred among consumers choosing between Melona and Melon Bar. An industry official noted, 'It is meaningful that Binggrae's reputation as a melon ice cream brand has been recognized by the court. There is a substantial difference in years of establishment between the products of Binggrae and Seojoo.' Binggrae first launched Melona in 1992, while Seojoo began selling Melon Bar in 2014.
The recent ruling has the food industry on alert regarding whether it will put a stop to the widespread 'me-too strategy.' The me-too strategy involves mimicking the ideas of successful products or services in the market and releasing similar products as a marketing strategy. This strategy is used by latecomers to quickly enter the market and secure competitiveness in a highly competitive environment.
A representative example of this is Choco Pie. After ORION's Choco Pie was released in 1974 and gained popularity, Lotte Confectionery (now LOTTE Wellfood) launched Lotte Cocoa Pie in 1978. It changed the name to Choco Pie within a year of its release. This led to legal battles in the late 1990s, where the court did not recognize the uniqueness of the Choco Pie brand name. At that time, ORION had registered the trademark for Choco Pie not just as Choco Pie, but as 'ORION Choco Pie.'
There are also cases where the situations of LOTTE Confectionery and ORION have reversed. In 2016, LOTTE Confectionery demanded the cessation of design use, claiming that ORION's 'The Xylitol' container, released after a renewal, was similar to LOTTE Confectionery's 'Xylitol' gum. This was a conflict over exchanged content certifications, with the white background and green lettering design being central to the dispute.
In the food industry, it is noted that due to the limited space in confectionery packaging and the nature of producing similar products from the same raw materials, it is challenging to come up with unique designs. An industry insider stated, 'If you utilized a banana as a raw material, you would need to use yellow packaging with a banana shape, which ultimately leads to similar designs.'
However, while it has been a war of stealing and being stolen confined to the domestic market, the recent dynamics are changing. This is due to the emergence of overseas companies imitating K-food as it expands abroad. A brand called 'Sanai' in China is imitating the design of Samyang Foods' Buldak Bokkeummyeon and selling it. In Southeast Asia, such as the Philippines, many cases exist where products are presented to resemble Korean soju by placing a similar logo on a green bottle like HiteJinro's soju.
A representative from the Korea Food Industry Association noted, 'Recognizing this issue, we are jointly forming a 'joint committee to eradicate counterfeit K-food' with food companies and have filed a trademark infringement lawsuit in Chinese courts.'
In the food industry, crossing between domestic and international markets, how much is considered me-too, and where does plagiarism begin? The plagiarism lawsuit involving Binggrae and Seojoo serves as an opportunity to rethink this multifaceted issue.