Trademark Law Case Law: BOSS Case, Showa 61 (Wa) 7518

In this case, it was indicated that even if goods bearing a registered trademark are distributed, if that act does not constitute 'use of a trademark,' it does not amount to trademark infringement.

A trademark is an identification mark applied to goods. Furthermore, 'goods' do not include 'packaging for goods' or 'advertisements for goods'. Consequently, a standard is needed to determine whether a certain item is 'goods,' 'packaging for goods,' or 'advertisements for goods.'

(For example, even a cardboard box can be an object of trade because it has value as waste paper.)

In this case, as a standard for determining whether something is goods, the criterion was established that it is determined by whether the item itself has exchange value and is independently treated as an object of commercial trade.

Therefore, even if there is a registered trademark 'BOSS' (No. 695865) designating clothing as goods, it does not constitute trademark infringement if a musical instrument manufacturing and sales company distributes T-shirts bearing the 'BOSS' logo to instrument purchasers for free. This is because, in this case, it constitutes use of the trademark 'BOSS' for the goods 'musical instruments,' but not for the goods 'clothing.'

Note that in practice, one should avoid unnecessary disputes, so before producing or distributing novelties, one should confirm that no third-party trademark rights exist regarding the novelties.

・Judgment text, etc.
Showa 61 (Wa) 7518 Trademark Right Civil Litigation
August 26, Showa 62 Osaka District Court
Full text of judgment: http://www.courts.go.jp/hanrei/pdf/C79CC817F5A3244449256A76002F8AEE.pdf

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