Plaintiff, Co-medical Co., Ltd., has launched the sale of brassiere for use at home under the trademark of “Funwari Room-Bra” on September 12, 2016. By virtue of comfort to wear and elegant design of non-wired bra with adjustable breast support band under the cups and longline lace frill (see below left), the bra was a huge hit, ranked No. 1 on Amazon Japan. Total sales over three year period exceeded 1.4 million bras.   

In October 2018, the defendant began to sell non-wired bras under the trademark of “Moriage” (see above right) that has substantially the same configuration as P’s “Funwari Room Bra.” Sales of D’s bra reached 30 million JP Yen by the time D terminated the sale in September 2019.

Co-medical filed a lawsuit at the Tokyo District Court in May 2019, and argued the configuration of D’s bras constitute an act of unfair competition under Article 2(1)(iii) of the Unfair Competition Prevention Law that prohibits “commercial act to assign goods that imitates the configuration of another person’s goods unrelated to achieve a technical function before the lapse of three years from the date of release in Japan.” If so, given substantial resemblance in shape and design between two bras, D shall be liable for 202 million JP Yen damages caused by their act under Article 5(2) and attorney fee.

The court found D’s bra constitutes an unfair competition act prohibited under Article 2(1)(iii) and awarded damages of 200 million JP Yen over a dead copy of bra design by stating as follows.

• There is a slight difference in details between the two bras. However, since it would not affect a whole configuration, in fact, D’s bra shall be deemed practically identical with P’s bra in shape.
• In view of the recent popularity and advertisement of P’s bra, there is reasonable doubt that D in the same trade would have been aware of and knowingly relied on P’s bra to manufacture their bra.
• Under Article 5(2), D’s profit gaiend by their unfair act shall be construed marginal profit, calculated by deducting direct costs incurred to manufacture and sell D’s bras from the sales. Therefore, D is liable for 184 milliom JP Yen damages. Besides, the court has a good reason to believe that 18 million JP Yen shall be awarded as damages to recover P’s attorney fees.