Big troubles: The trademarks of well-known companies are registered for free-riding, which is not uncommon
Tan Jun, chief reporter of The Paper
Today’s Toutiao’s prosecution of "Today's You Tiao" continues to ferment. Recently, "Guangming Daily" published a comment saying that "Sugar Daddy" will eventually run into the iron wall of justice.
Today Youtiao Catering Management Co., Ltd. in Henan was established on May 13 this year with a registered capital of 1 million yuan.
In addition to the "Today You Tiao" sign, the company has also applied for trademarks such as Today's Noodles, Bing Duoduo, Kuaishou Zhuang Bing, and Tomorrow You Tiao, but it has not been successfully registered.
The Paper (www.thepaper.cn) combed and found that the phenomenon of using the brands of well-known companies to register or use similar trademarks to solicit their own business often occurs.
Related intellectual property experts believe that a large number of disputed trademarks have flowed into the market, which has an adverse impact on business order and even causes social problems.
Well-known companies defend their trademark rights through litigation, which obviously increases their operating costs. Although court rulings often deny the validity of the trademark registration of "Pang Ming Brand", the review and approval of trademark registration should also be strengthened.
Fancy "free rider", cross-border "near famous brand"
Today's Youtiao Company in Henan has designed a store that is highly similar to the Toutiao LOGO and its App interface. It also has a slogan that is similar to Toutiao's "Toutiao is what you care about": "The best youtiao is the one who cares about you."
Not only that, in categories such as food, catering and accommodation, and convenience food, Today You Tiao Company has applied for 16 trademarks including Today Noodle, Bing Duoduo, Kuai Shou Zao Bing, and Tomorrow You Tiao.
On October 19, The Paper searched China Trademark Network and found that the above-mentioned trademark applications were all in the status of "waiting for substantive examination" and the registration was not successful.
In this regard, the person in charge of Today's Youtiao Company responded to the media very frankly, “I am a loyal user who brushes Today’s Toutiao App every day. The'Pangda Brand' is just fun." The company also issued an "open letter", saying that it will be headline. As an example, we will be the favorite breakfast brand of the common people.
However, the opening announcement of the Guangzhou Intellectual Property Court showed that Beijing Bytedance Technology Co., Ltd., to which Toutiao belongs, has taken "Today's You Tiao" to court.
In fact, it is not uncommon for well-known companies to be "besides famous brands".
The Paper Search China Trademark Network found various trademark applications for "Famous Brands", such as Mao Xiaotai, Tu Moutai, Moutai Fang, Ai Douyin, Wu Nongye, Pinxixi, Pinqiu Duodu, Duo Duo Pin and Duo Duo Pin Mutual assistance, a lot of help, a lot of bargaining, etc., are countless.
"Today's You Tiao"-style cross-border imitation has also happened to the world's top racing brand Ferrari.
In the 1990s, Italian Ferrari cars began to enter the Chinese market. Hunan businessman Leng Jun, a businessman with a keen business sense, applied to the Trademark Office for the “Ferrari” word mark on February 10, 2004, and was approved on January 28, 2007. The 33rd category "wine, liquor (drinks)" and other commodities were registered.
Subsequently, Leng Jun registered Changsha Ferrari Wine Trade Co., Ltd. (hereinafter referred to as "Changsha Ferrari") produced and sold a variety of "Ferrari" series wines.
However, applying for a registered trademark and taking the name of the "Ferrari" brand company cannot avoid the fact that it has rubbed off the fame of Italian Ferrari cars.
On April 15, 2020, the Changsha Intermediate People's Court pronounced against Ferrari in a lawsuit against Changsha Ferrari: it determined that Changsha Ferrari violated the principle of good faith and intended to cling to the goodwill of the Italian Ferrari trademark and ordered Changsha Ferrari to immediately stop producing and selling the logo "Ferrari" , "FALALI", wines with the Prancing Horse graphic trademark, and other alcoholic products, and compensate Ferrari Company 2 million yuan; at the same time, immediately stop using the "Ferrari" name in its corporate name.
So far, the Changsha Ferrari red wine brand that has been in business for more than ten years no longer exists.
In an interview with The Paper, Jun Leng once said: "Ferrari wants to enter the Chinese wine market. If he wants this trademark, I will give it to him. I have been in business for so many years, and a symbolic transfer fee of one yuan is given." In the end, Ferrari Italy still resorted to justice and won the case.
Pinduoduo succumbed to Gao Fang’s "Pixixi"
There has also been a very bad infringement incident among well-known Internet companies.
As a well-known e-commerce platform, Pinduoduo is often ridiculed as "Pin Xixi" in the market. On the China Trademark Online, as shown above, the intention of various fancy trademarks Pong Duoduo is also very obvious.
In November 2017, a Shanghai company named Shita registered the "Pixixi" trademark, and opened the Pixixix website, the "Pixixix Mall" WeChat public account and the "Pixixix" mobile phone software.
On the "Pinxixi Mall", there are also columns such as time-limited spikes, quality fruits, half-day delivery, spelling out love, 9 yuan and 9 sale, and even imitating the slogan of Pinduoduo: "Shopping for 100 million people App".
In 2018, Shanghai Xunmeng Technology Co., Ltd., a subsidiary of Pinduoduo, sued Pinxixi to the court for trademark infringement and unfair competition.
Pinduoduo believes that Pinxixi and Pinduoduo are similar, which can easily cause confusion among the relevant public. They believe that there is a specific connection between the two and infringe Pinduoduo’s trademark exclusive rights; Pinxixi’s website plagiarism Pinduoduo constitutes false propaganda, which is easy for the public to misunderstand and violate The anti-unfair competition law has caused losses of economic and goodwill to Pinduoduo.
Pinduoduo sued the court for a ruling that Sita would compensate it 200,000 yuan and reasonable expenses 5,500 yuan.
In the end, the court of first instance supported Pinduoduo’s petition and ruled that Sita would compensate 100,000 yuan for economic losses and a reasonable expenditure of 5,500 yuan.
Shita refused to accept the appeal.
The reasons for its appeal included that its "Pinxixi Mall" did not actually operate and was not profitable; its trademark involved in the case was clearly different from the logo in question, which did not constitute an infringement of Pinduoduo's trademark exclusive rights.
In addition, Sita has the exclusive right to use the trademark "Panxixi".
The user entered the platform involved in the case by entering "Pinxixi", which has nothing to do with "Pinduoduo".
On May 18, 2020, the Shanghai Intellectual Property Court pronounced a second instance against Pinduoduo against "Pinxixi".
The court held that although the trademarks "Pinxixi" and "Pinduoduo" were not the same, they were similar; in its business activities, Shita fully imitated the actions of Pinduoduo, with the intention of causing the relevant public to confuse the two. The malice was obvious and constituted infringement. The first instance verdict was upheld.
However, The Paper noticed that although Pinduoduo had won Pinxixi, the case entered the judicial process and it was inevitable that the lawsuit would be exhausted.
The second-instance appeal of Pinxixi also filed that it legally owned the registered trademark of "Pinxixi". Although Pinduoduo filed a trademark opposition application against "Pinxixi", it was also rejected by the Trademark Office.
However, the court held that the registered trademark held by Pinxixi was different from the infringement of Pinduoduo, and that it was still responsible for its actions.
Wuliangye’s worries: trademark lawsuits are lit up
In order to avoid the plagiarism and imitation of trademark subjects from all directions, many big-name companies conduct defensive registration of their trademarks.
Among these enterprises, Sichuan Yibin Wuliangye Group Co., Ltd. (hereinafter referred to as "Wuliangye") is quite representative.
In order to prevent others from squatting, Wuliangye has successively applied for registration of a number of protective trademarks such as "Digital + Liangye" with the State Administration for Industry and Commerce.
The Paper conducted a search on China Trademark Net with "Sichuan Yibin Wuliangye Group Co., Ltd.". As of October 15, 3,421 registered trademarks were retrieved, including "Yiliangye", "Erliangye", and "Sanliangye". "Ye", "Siliangye", "Wuliangye", "Liuliangye", "Qiliangye", "Baliangye", "Jiuliangye", "Shiliangye", "Qianliangye", etc.
But the trademarks of "Pong Ming Brand" are still emerging in endlessly.
According to the China Judgment Documents Network, Wuliangye has filed hundreds of lawsuits for trademark rights protection, and many cases have reached the Supreme Law. Many trademarks have been identified by the court as “famous brand” with obvious intentions, requiring the National Intellectual Property Administration or the Trademark Review and Adjudication Board to The trademark involved in the case made a new review ruling.
As early as July 2011, the trademark infringement lawsuit of "Wuliangye" sued "Qiliangye" for more than half a year came to an end.
The Second Intermediate People’s Court of Beijing ruled that the "Qiliangye" series of liquor produced and sold by Beijing Yinwubao Company violated the exclusive rights of Wuliangye's trademark, and requested Beijing Yinwubao to immediately stop the production and sale of Qiliangye liquor and pay compensation Wuliangye Company lost 50,000 yuan.
On May 28, 2019, Wuliangye sued Gansu Binhe Food Industry (Group) Co., Ltd. "Jiuliangye" and other trademark infringement cases. The lawsuit lasted for 6 years. The lawsuit was filed in the Supreme People's Court and eventually won the lawsuit and received widespread attention.
After a retrial by the Supreme People’s Court, Gansu Binhe Group highlighted the use of trademarks such as "Jiuliangye" and "Jiuliangchun" on the bottle and outer packaging of its products, especially the writing methods of "liquid" and "chun" and Wuliangye's The products are relatively similar.
This reflects that Binhe Group has a relatively obvious subjective intention to borrow the goodwill of others' trademarks.
The production and sale of products such as "Jiuliangye" and "Jiuliangchun" by Binhe Group was found to have violated Wuliangye's trademark exclusive rights for "Wuliangye" and "Wuliangchun".
The Supreme Law ruled that Binhe Group compensated Wuliangye for economic losses of 9 million yuan; immediately stopped production and sales of the words "Jiuliangchun" and "Jiuliangye" or highlighted the words "Jiuliangchun" and "Jiuliangye" Of liquor products.
In addition, Wuliangye also sued the State Intellectual Property Office and the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce on many occasions, requesting the cancellation of the registered trademarks suspected of rubbing its famous brands.
In 2016, Wuliangye used the trademarks "Wuyanzun" and "Wuliangchun" to be similar to the registered trademarks of "Wuliangzun" and "Wuliangchun". The Trademark Review and Adjudication Board of the State Administration for Industry and Commerce of the "Yan Zun" and "Wu Yan Chun" trademarks filed a lawsuit to the court. The Beijing Intellectual Property Court and the Beijing Higher People Wuliangye Company is a competitor in the wine industry. It still applies for the registration of a trademark similar to Wuliangye Company. It has failed to perform reasonable care and avoidance obligations, and has subjective malice of "free-riding".
In September 2018, the court ruled to revoke the ruling of the Trademark Review and Adjudication Board and requested a new ruling.
Not only that, Wuliangye is similar to "Sanlong Liuliangye" and its registered trademark of "Liuliangye", and "Wuliang" trademark is similar to its registered "Wuliangye", "五粮醇", and "Wuliangchun". The subjective maliciousness of "Pong Ming Brand" was obvious, and the National Trademark Review and Adjudication Board or the State Intellectual Property Office was sued to the court. In the end, the court also supported Wuliangye's litigation request.
Lawyer: The judicial system has the final effect, but the review ability should be strengthened
The Paper noted that the registration of free-rider and brand-name trademarks is one of the important reasons for frequent trademark infringement cases.
At the same time, in many cases, the final judgement effect of justice often overturns the previous registration determination of the Trademark Office.
Liu Kai, an attorney at the Intellectual Property and Entertainment Law of Hunan Wensheng Law Firm, believes that the different understandings and perceptions of everyone in the trademark field exist in different trademark reviews, and the different administrative and judicial identification standards of trademarks also lead to this. difference.
"In 2019, the "Trademark Law" revised some legal provisions to regulate the chaos of malicious registration and hoarding of trademarks. However, when it comes to trademark applications, sometimes the Trademark Office is relatively passive. In individual cases, the trademark is judged. Whether they belong to the same or similar trademarks, whether they are well-known to consumers, and whether they constitute clinging or free-riding, the judicial organs are different from the administrative departments for trademark review. The judicial organs will have a more comprehensive, cautious and careful consideration from various angles. The administrative confirmation of the trademark itself, in addition to the initial review, has a series of procedures such as announcements and re-examinations. If you are not satisfied, you can go through administrative litigation. The court can conduct judicial review of the TRAB's determination. Therefore, the judicial confirmation of trademarks is final. , The time cost of judicial settlement of trademark disputes is very high, and a large number of disputed trademarks flow into the market, which has an adverse impact on commercial order and even causes social problems.
In 2013, a company called Shenzhen Yibaidu Catering Management Co., Ltd. branded "Baidu Barbecue", which caused Baidu to defend its rights.
The company has exclusive rights to the registered trademark of "Yi Baidu", has established many branches across the country, and once more than 500 franchise stores of "Baidu Barbecue".
According to the China Judgment Document Network, in November 2018, the Shenzhen Intermediate People's Court determined that "Baidu Barbecue" constituted an infringement and requested Yibaidu to compensate Baidu with 3 million yuan.
On November 19, 2019, the second instance of the Guangdong High Court upheld the above judgment.
"The example of Baidu BBQ losing the lawsuit is very typical. Unknowing consumers may think that this BBQ is an extension of Baidu's products and will misidentify it. And the'misidentification' itself is exactly the reason why the business is willing to do this because it can drain traffic. . Compared with other brand names, obviously big names are more attractive." Liu Kai said.
In Liu Kai's view, the "Today You Tiao" incident is similar to "Baidu Barbecue". What is "exaggerated" is that Today's You Tiao Company also applied for trademarks such as Bian Duoduo and Kuai Shou Zao Bing.
"Some trademark subjects have very obvious intentions of rubbing famous brands. For the Trademark Office, when a trademark application is received, it can set up relevant search and other technical means to exclude obvious free-riding behavior. In addition, if the applicant applied for a trademark before In the presence of such behaviors involving famous brands, trademark review agencies can also reject their applications through big data analysis, etc., so as to effectively avoid this kind of'fishing in troubled waters' phenomenon."
Liu Kai believes that, in addition to public opinion denying free-riding behavior, and judicial intensification of punishments and ruining infringers, it is also necessary for the trademark administration department to strengthen its trademark registration review capabilities.
The Paper recently reported that China's Songshan Shaolin Temple applied for registration of 666 trademarks in 23 years, causing heated discussions.
According to a typical case published on the official website of the State Intellectual Property Office, Songshan Shaolin Temple applied for the registration of the No. 15647929 "South Shaolin" trademark as an alcoholic trademark, which was rejected by the Trademark Review and Adjudication Board as "may hurt the religious feelings of Buddhists".
However, information from China Trademark Network shows that the trademark office's review standards are not uniform, and there are still many Shaolin-related alcohol trademarks registered.
In response to the Shaolin trademark dispute, Xinhua News Agency's "Xinhua Daily Telegraph" published a commentary stating that the trademark "access" must be properly handled, and the trademark review methods and review standards should be more unified to avoid randomization, subjectivity, and ambiguity; The review process should also be more standardized, standard and transparent.