After "Cha Yan Yue Se" was sued for trademark infringement, it counter sued "Cha Yan Guan Se" for unfair competition

　　Checking in a cup of "Tea Yanyue Color" milk tea is the standard for many consumers to Changsha.

However, there is also a milk tea shop brand in Changsha called "Tea Yan Guan Se". Both Cha Yan Yue Se and Cha Yan Guan Se are registered trademarks. Cha Yan Guan Se only opened stores in Changsha in 2019, but the trademark registration was first. .

　　In April 2020, Cha Yan Guan Se sued Cha Yan Yue Se for trademark infringement, but was rejected by the court.

The Paper (www.thepaper.cn) learned from the China Trial Open website that on January 4, 2021, Cha Yan Yue Se sued Cha Yan Guan Se on the grounds of unfair competition.

The case is still under trial.

　"Tea Beauty" and "Tea Beauty Appreciation"

　　Public information shows that since the opening of the first shop in Changsha in December 2013, the "Tea Yanyue Color" milk tea shop has nearly 200 branches.

In May 2019, a "Tea Yan Guan Se" milk tea shop, which is only one word away from "Tea Yan Yue Se", opened in Changsha.

Then the two sides fell into a protracted intellectual property and competition dispute.

　　According to China Trademark.com, the trademark "Tea Yanyue Color" was first registered on October 8, 2013 by Hunan Chayue Catering Management Co., Ltd. (hereinafter referred to as Hunan Chayue Company) on 35, 43, and 30 categories of goods and services.

　　The trademark "茶颜观色" was applied for on 43 categories of goods and services by Chai Zejun on September 22, 2004, and was registered on March 14, 2008. The validity period of the trademark is from March 14, 2008 to 2028 3. On the 13th, the approved use of goods/services included "teahouses", "cafes" and "restaurants".

In 2018, the trademark changed hands several times, and Guangzhou Luoqi Catering Management Co., Ltd. (hereinafter referred to as Guangzhou Luoqi Company) obtained the exclusive right to use the trademark.

From 2017 to 2019, Rocky Company successively opened a number of "Cha Yan Guan Se" milk tea shops in Changsha and Zhuzhou, and authorized relevant milk tea shops to use the "Cha Yan Guan Se" trademark.

　　In the previous trademark infringement litigation, Luoqi Company, as the plaintiff, believed that the trademark "茶颜观色" was registered as early as 2008. After years of operation, the number of its tea houses has reached more than 400, and it has entered the overseas market. .

The defendant Chayue Company used the plaintiff’s "茶颜观色" trademark in form, sound and meaning in many places such as the door, interior decoration, tea cups, packaging, receipts, paper towels, waiter's clothing, cushions, etc. The very similar words "Tea Yanyue Color" constitute trademark infringement.

　　The Yuelu District Court of Changsha City made a judgment on April 8, 2020, and determined that "tea Yanyue Se" did not constitute trademark infringement.

The main reasons are as follows: 1. The approved use of the registered trademark "茶颜悦色" is different from the approved use of the trademark "茶颜观色". The former store does not provide consumers with teahouse services such as refilling and refilling. Its trademark is mainly It is to identify the source of goods, not the source of services, and does not exceed the scope of its approved use.

Second, from the perspective of the similarity of the trademark itself, although the difference between "tea Yan Yue Se" and "茶 Yan Guan Se" is only one word, the pictures, pictures and pictures have the same overall structure in the combination of font, meaning and composition. There is a big difference.

3. "Tea Yanyue Color" was used in December 2013. After continuous promotion and promotion, the consumer market is expanding and the brand awareness is increasing. It has become a famous "net celebrity" milk tea in Changsha, Hunan and even the whole country.

However, "Tea Yan Guan Se" was promoted in 2017, and the distinctiveness and popularity of the trademark was obviously weaker.

4. Although "Tea Yan Yue Se" is composed of two parts: "Tea Yan" and "Yue Se", it is neither "Tea Yan" nor "Yue Se", but "Tea Yan Yue Se". This whole.

　　In summary, the two registered trademarks are not similar and not easy to be confused, and Cha Yan Yue Se is not infringing.

　Violation of the principle of good faith

　　The Paper noted that in demonstrating that Cha Yan Yue Se does not infringe Cha Yan Guan Se, the Yue Lu Court pointed out that although “Cha Yan Guan Se” was registered first, if the interests of the previous trademark registrant were absolutely the only Taking into account the factors, simply determining that the defendant’s use of the trademark "茶颜悦色" constituted trademark infringement would cause undue damage to the legitimate rights and interests and accumulated goodwill of the operators who continuously and honestly use the unique name and trademark. The principle of market fairness.

　　The Yuelu Court held that, in accordance with Article 7 of the "Trademark Law of the People's Republic of China," the application for registration and use of trademarks should follow the principle of good faith.

After investigation, the trademark image was first registered by the outsider, Chai, in March 2008, and transferred to another outsider by a Beijing Intellectual Property Agency Co., Ltd., and then transferred to Luoqi Company again.

Before the first transfer of the trademark, there was no evidence to prove the actual use of the trademark, and consumer awareness and market visibility were not high.

　　On the contrary, the "Tea Yanyue Se" store has been open for more than 6 years and has gradually developed into a chain brand store, which has been recognized by consumers and attracted many media reports.

The trademark "Tea Yanyue Se" has thus gained uniqueness and distinctiveness.

　　In addition, Luoqi Company used pictures similar to the registered trademark pictures in the similar milk tea shops it opened as shop signs, and used pictures similar to the registered trademark pictures in many decorations of the store and on the network platform, which caused a lot of consumption. People mistakenly think that "tea beauty and beauty" is "tea beauty and pleasure".

　　The Yuelu Court held that as a competitor in the same industry, Luoqi Company should be aware of the popularity of "茶颜悦色", but it was still assigned to use the registered trademark "茶颜观色", and used it as a right trademark against the registered trademark "茶颜悦色". "Yan Yuese" filed a trademark infringement lawsuit. The subjective malice was obvious and violated the principle of good faith. Therefore, Luoqi Company's claim should not be supported by the court.

　"Unfair Competition" Case

　　So, does tea beauty and beauty constitute an unfair competition for tea beauty and pleasure?

On January 4, 2021, Cha Yan Yue Se sued Cha Yan Guan Se for unfair competition, and the court opened in Tianxin District Court of Changsha City.

　　The plaintiff Cha Yanyue Se believes that she is a milk tea shop with national influence and is very popular. The longest queue time for newly opened stores is as long as 18 hours. It has been reported by well-known national media and even international media to confirm that the plaintiff has extremely high influence.

The defendant’s use of decorations similar to those of the plaintiff’s shop was confusing and constituted unfair competition.

　　The Chayan Guanse milk tea shop opened by the defendant in Changsha was opened after the plaintiff became well-known.

The defendant used the trademark later and was liable for avoidance, but the defendant completely failed to fulfill it.

　　The plaintiff Chayanyuese sued Chayanguansefang, the defendant one Guangzhou Luoqi Company, the second defendant Guangzhou Kaijun Shengpin Catering Management Co., Ltd. and the third defendant Liuqiong Beverage Shop (Chayanguanse South Gate Branch), Tianxin District, Changsha City, Request the court to rule that Defendant 1 and Defendant 2 should stop using the same or similar decorations as the plaintiff for advertising, franchise license investment, etc., and compensate the plaintiff for economic losses of 1.5 million yuan; request the three defendants to immediately stop using the same or similar decoration as the plaintiff in the Nanmenkou store Shop decoration and compensate the plaintiff for economic losses of 700,000 yuan.

　　Cha Yan Guanse replied that he did not use decorations similar to those of the plaintiff.

Even if there are similar elements in the decoration of the plaintiff, it still uses its own registered trademark, and the picture of the lady in the teahouse also has the basis of rights.

The defendant himself has also invested a lot of advertising, and tea looks and looks have the characteristics of distinguishing the plaintiff.

The investment promotion information on various platforms under the banner of tea beauty was not released by the defendant.

The defendant had commercial use before the plaintiff opened the first store in 2013, but only opened a few stores and left no traces on the Internet, which does not mean that it was not used.

　　In addition, the defendant also believes that “commodity decoration and service decoration are two concepts. In the previous trademark dispute case, the plaintiff believed that it provided goods, not services, and therefore did not constitute an infringement of the defendant’s 43 types of trademark rights. In this case However, they think that they are providing services and that the defendant has faked the service decoration of the plaintiff. This is completely contradictory. The plaintiff cannot account for all the benefits."

　　The cross-examination of both parties showed that Chayan Guanse South Gate Store had closed in September 2020.

The trial lasted more than 4 hours, and the court will choose a date to pronounce the verdict.