Rule of Law Class | Xiaoyao Town Hula Soup Association's "Trademark Rights Protection" was suspended, what's the reason?

  Recently, the trademark rights protection storm triggered by the "Xiaoyao Town Hu spicy soup" has been repeatedly searched.

Many vendors who have been operating "Xiaoyao Town Hu La Tang" for more than ten years were suddenly sued by the Hu La Tang Association of Xihua County, Henan Province for infringing on the trademark rights of "Xiaoyao Town". This was suspected of "ripping up" and "harvesting" after becoming famous. .

  On the evening of November 21, this hot discussion on the Internet "stopped boiling" due to a notice.

Xihua County Hu spicy soup Industry Development Center issued a statement stating that it has ordered the "Xiaoyao Town Hu spicy soup Association" to suspend the work currently being carried out.

  In the face of the dispute, the secretary-general of the Xiaoyao Town Hu La Tang Association said in an interview with the media that the purpose of the prosecution is to maintain the authenticity through legal channels.

Another person from the association also said, "Through the unified management of the association, it is hoped that Xiaoyao Town Hu spicy soup will be made bigger and stronger, and spread to the whole country."

  The Xiaoyao Town Hu La Tang Association does own the trademark right of "Xiaoyao Town Hu La Tang", so why does its rights protection cause controversy?

In the field of trademarks, where are the boundaries of reasonable and legal rights, and what are the value orientations that people agree with?

The Paper (www.thepaper.cn) comprehensively sorted out the incident and interviewed relevant experts in the intellectual property field to analyze the matter.

  Some experts believe that the "Xiaoyao Town" held by the Xiaoyao Town Hula Tang Association is not a certifying and collective "geographical trademark", but a "general trademark" generally registered by specific businesses. "Ordinary trademarks" are not appropriate for trademark rights protection.

Some experts also believe that the Hu Latang Association’s practice of using trademarks to protect rights is “not protecting trademarks (the association is not registering geographic trademarks), but it is suspected of'collecting protection fees'."

Reported on "Trademark Rights Protection" of Hula Tang in Xiaoyao Town.

Screenshot of Henan Satellite TV's People's Livelihood Channel

Controversy 1: Is it legal or illegal to protect rights in "herding sheep-style" litigation?

  According to Henan Minsheng Channel, on November 16, more than 50 merchants in the Hulatang shop in Xiaoyao Town, Jiaozuo City, Henan Province claimed that they were accused of infringement because of the use of "Xiaoyao Town" in the name of the store, and received a court summons.

"Xiaoyao Town" is a registered trademark of "Xiaoyao Town Hu Latang Association of Xihua County" (hereinafter referred to as the Association).

The association sued the merchants, demanding either pay 1,000 yuan per year for membership, accept the unified management of the association, or compensate 30,000 to 50,000 yuan.

  Subsequently, many media in Henan reported that nearly a hundred Hula soup restaurants in Xiaoyao Town, such as Jiaozuo, Anyang, and Puyang, were being sued.

  In interviews with the media, many businessmen expressed their incomprehension. Some said, “I have been using this name for 30 years and I’ve been fine, why are you looking for us to'cut the leeks'”, “I have been working for seven or eight years, but somehow received the court’s advice. Subpoenas." Others believe that they have been promoting Xiaoyao Town Hu spicy soup over the years, "Now that they are well-known, they all know that Xiaoyao Town Hu spicy soup is already available, so they came back to sue us for trademark infringement." "I didn't notify us before. I, if you don’t say anything, you just need to ask for money, which is equivalent to blackmailing."

  The Paper inquired about China Trademark Network and found that Xiaoyao Town Hu La Tang Association has the "Xiao Yao Town" trademark in the 29th category of the trademark classification, and the corresponding product is 2905 "Hu La Tang", followed by the 43rd category of goods and services. , The association also applied for the registration of the trademark.

The registration announcement of the 29-category "Xiaoyao Town" trademark was announced on June 21, 2004. After a renewal, the exclusive authority is from June 21, 2014 to June 20, 2024.

  In an interview with Henan Minsheng Channel, Gao Peng, vice chairman of the Hulatang Association of Xiaoyao Town, Xihua County, said, "The trademark of Xiaoyao Town has already been registered by the association in 2003. The management of, let everyone use this name, there is no de-standardized operation, but this year, we will start to protect rights in a unified way."

  After this matter triggered controversy, many people questioned that the association deliberately "herd sheep" for eighteen years after registering the "Xiaoyao Town" trademark, and then "harvested" until the "Xiaoyao Town" trademark became more famous.

  Is it legal to treat infringements with a lazy attitude of "herding sheep" first, and then defend rights in a seemingly "harvesting" manner?

In this regard, Ma Dongxiao, a well-known intellectual property lawyer who represented the Jordan Sports trademark case, believes that “from a legal perspective, right holders can claim rights at any time.”

  "Flying" Jordan sued Jordan Sports for 8 years. The case attracted much attention because the plaintiff, American basketball superstar Michael Jordan, had not claimed rights for many years, and was sued when the Jordan Sports Company went public.

The case ended in the victory of "flying man" Jordan and was selected as a guiding case of the Supreme Court.

  However, Ma Dongxiao pointed out that the focus of the Hulatang incident is not the way the association involved prosecutes, but the basis of its rights, that is, the trademark right itself.

"Does the Xiaoyao Town Hu La Tang Association legally own the Xiaoyao Town Hu La Tang trademark?"

  The source of the notification from the Xihua County Hu spicy soup Industry Development Center: Xihua Rong Media Center's WeChat public account "Xihua Rong Media".

Controversy 2: Is it justified or unreasonable for the Hu Spicy Soup Association to register as "Xiaoyao Town"?

  Was there the "Xiaoyao Town" Hu spicy soup brand first, or the Xiaoyao Town Hu spicy soup association first?

  According to the Dahe Daily, the Xiaoyao Town Hula Soup Association was established in 2003, and its supervisory unit is the Xiaoyao Town Government.

However, the data from Tianyan Check showed that the registration date of the association was November 8, 2004.

  According to China Trademark.com, the trademark application of "Xiaoyao Town" Hulatang was filed on January 15, 2003, and the registration announcement was made on June 21, 2004.

  The relevant person in charge of Xiaoyao Town previously told the media that the association had experienced a "rights protection storm" as early as its establishment.

At that time, the trademark of "Xiaoyao Town" was preemptively registered by a citizen of Zhengzhou City.

After discovering this situation, in order to protect the golden signboard of "Xiaoyao Town", the Xiaoyao Town Government and the Xiaoyao Town Hu La Tang Association tried their best to report the matter to the relevant departments.

In the end, after running around, Xiaoyao Town paid 150,000 yuan to the other party, and the "Xiaoyao Town" trademark belonged to Xiaoyao Town.

  According to Liu Kai, a lawyer from Beijing Zhongwen (Changsha) Law Firm, the nature of the trademark "Xiaoyao Town" is the crux of this conflict of rights protection.

  "At present, trademarks in my country can be divided into several types, including ordinary trademarks, collective trademarks and certification trademarks. Geographical trademarks are a collective trademark or certification trademark. Under normal circumstances, the association as an organization should register geographical indication trademarks to authorize the association Used by a member, it means that the business is from the association collective, and its products and services are from a certain place of origin, with a certain quality, reputation or other characteristics. For example, the famous Hunan "Liuyang Firecracker" and "Liling Porcelain" are all registered geographical indication trademarks. However, the Hu La Soup Association did not register a “geographical trademark”, but obtained a “general trademark.” The function of a common trademark is to indicate that a certain product or service originates from a specific merchant. The association is not a specific merchant and will not I went to open a restaurant by myself, but now I use a "common trademark" to authorize other businesses to use it for trademark rights protection. I think it's very inappropriate." Liu Kai said.

  The Paper noted that, in fact, if Xiaoyao Town is registered as a "geographical trademark", there is no legal obstacle.

my country's Trademark Law stipulates that geographical names of administrative divisions at or above the county level or foreign geographical names known to the public shall not be used as trademarks, but "except for geographical names that have other meanings or are part of collective trademarks or certification trademarks." There are no restrictions on township geographical names.

  In Ma Dongxiao's view, apart from the difference between geographic trademarks and ordinary trademarks, "Xiaoyao Town" as a geographical name was originally registered by an individual, and it is suspected of preemptive registration.

Because the applicant "obviously claimed a public place name as his own."

The Hu La Soup Association obtained the trademark through transfer, and the same cannot avoid suspicion.

  Ma Dongxiao also introduced that according to the Trademark Law and Article 11 of the Trademark Law, the following signs may not be registered as trademarks: (1) Only the generic name, graphics, and model of the product; Raw materials, functions, uses, weight, quantity and other characteristics; (3) Other lack of distinctive characteristics.

Controversy 3: Is the restaurant's use of "Xiaoyao Town" wrong or correct?

  At present, the "Xiaoyao Town" trademark is still legally owned by the Xiaoyao Town Hula Soup Association. Why did it encounter such a big backlash against the business in its prosecution?

  According to Chinanews.com, Xiaoyao’s hot and spicy soup originated in the Northern Song Dynasty and has a history of more than 1,000 years.

Gan Yuanchun, a lawyer from the Hunan Jinzhou Law Firm, believes that “Xiaoyao Town Hula Soup, as a traditional soup in Henan, has a history of over a thousand years and has become a generic name for the category. Hu spicy soup. Since it is a method of making soup, it means that the Hu spicy soup made by this inheritance method can be called'Xiaoyao Town Hu spicy soup', and it does not necessarily mean that people in Xiaoyao Town should make it. This is Xiaoyao Town’s spicy soup."

  "Xiaoyao Town Hu spicy soup industry has existed first, and trademark registration has occurred later. The association will sue for rights protection under the exclusive name of ordinary trademarks, and request to join the association, and pay annual membership fees. It is not protecting trademarks (the association registered is not a geographic trademark) , On the contrary, there is suspicion of collecting protection fees." Gan Yuanchun said.

  Attorney Liu Kai also believes that the accused merchants used the name "Xiaoyao Town" to sell Hu spicy soup, "maybe the name was used more as a snack name or place name, rather than using "Xiaoyao Town Hu spicy soup" as a common trademark. Use. Therefore, there is no problem of trademark infringement. This is similar to that of businesses like'Shaxian Snacks' as they use it as a geographic name, while'Shaxian Snacks' is indeed a geographic trademark, and the trademark'Xiaoyao Town' is a common trademark. "

  Ma Dongxiao also believes that the merchants who use the name "Xiaoyao Town" Hula Tang are likely to be "good faith descriptive use" and do not constitute trademark infringement.

  Ma Dongxiao said that, first of all, the trademark law provides for the "prior use right."

That is, before the registration of the disputed trademark, the fact that it was used by others already exists, and the continuous and good faith use of the trademark by the ancestors does not infringe.

  Secondly, according to Article 9 of the "Opinions on Several Issues in the Administrative Enforcement of Trademarks" issued in December 1999, use one's own name or address in good faith and state the quality, purpose, geographical origin and type of goods or services in good faith , Value and date of provision are not trademark infringements.

  Article 49 of the "Regulations for the Implementation of the Trademark Law of the People's Republic of China" also stipulates that "the general name, graphics, and model of the product contained in the registered trademark, or directly indicate the quality, main raw material, function, purpose, weight, quantity and other The owner of the right to exclusive use of a registered trademark has no right to prohibit others from using it properly."

Controversy 4: Is it pros or cons for the association to sue restaurants?

  On November 19, Yao Huaidong, deputy secretary of the party committee of Xiaoyao Town, said in an interview with Dahe News that the establishment of the Xiaoyao Hu spicy soup association is to unify and standardize the development of the Xiaoyao Hu spicy soup industry and better maintain the development of Xiaoyao Hu spicy soup. reputation.

As early as a few years ago, they discovered that the hot and spicy soup restaurant with the sign of "Xiaoyao Town" had mixed good and bad and lacked uniform technical standards.

Quite a few Hula soup shops with the sign of "Xiaoyao Town" have no relationship with Xiaoyao Town. The owner is not Xiaoyao, and the soup is not Xiaoyao.

  In an interview with the media, Wang Leihua, secretary-general of the Xiaoyao Hu spicy soup Association, stated that the purpose of the prosecution is to protect the authenticity through legal channels.

In response to the Beijing Youth Daily’s interview, Mr. Gao from the association also said, “Through the unified management of the association, it is hoped that Xiaoyao Town Hula Tang will be bigger and stronger, and spread across the country.”

  The Paper noted that in recent years, it is not uncommon for industry associations to conduct trademark rights protection events in the name of regulating industrial development.

For example, in recent years, the Pepper Industry Association of Zhangshu Town, Xiangyin County, Hunan Province successively sued more than 100 restaurants in Changsha for the use of the special trademark "Zhangshugang Pepper" in the names of their dishes.

  Zhangshu Town Pepper Industry Association Secretary-General Wang Changxi introduced in an interview with The Paper that Zhangshugang pepper was registered as a geographical trademark in 2013. In 2019, based on the large number of counterfeit Zhangshugang peppers on the market, trademark rights were defended to maintain the brand’s historical heritage and reputation. .

At present, the thinking of rights protection is becoming more and more mature, "divided into three paths: civil litigation, administrative law enforcement and criminal litigation."

  Wang Changxi also said that Zhangshugang pepper is a "geographical trademark", and local pepper farmers can join the association for free and obtain anti-counterfeiting trademark labels for free.

This is completely different from the "common trademark" used by the Xiaoyao Town Hu spicy soup association.

In addition, the restaurant that the association sued did indeed sell non-Zhangshugang chili peppers.

  However, in the opinion of Mr. Gan Yuanchun, although the Zhangshu Port Chili Association’s prosecution was legally correct and most of the cases were won, "The Zhangshu Port Chili Association did not consider the value of catering activities in the establishment of the Zhangshu Port Chili Brand. , There is no industry mutual benefit and common development plan, this kind of confrontation game approach is not an ideal model."

  Wang Changxi also felt deeply about this.

He believes that the practice of mass prosecution by the Xiaoyao Town Hu spicy soup association "may not be optimistic."

"Which channel do you use to sell this product? What is the position of the product in the same industry and how is it accepted by the market? This is a very systematic project. If it is not systematically considered, it may be like some companies in history, like some companies in history, fighting counterfeit Beat yourself up."

  Amidst the dispute, on the evening of November 21, the competent department for the development of the spicy soup industry in Xihua County and the Xihua County Hu spicy soup industry development center issued a notice stating that “the “Xiaoyao Town Hu spicy soup Association” has been ordered to suspend the current operation. work."

  The center stated in the statement that in April this year, the "Xiaoyao Town Hula Soup Association" commissioned a third-party company to carry out brand protection.

In docking with business operators in Jiaozuo and other places, “due to insufficient communication, simple and eager methods, and poor operability of the service training process, some business operators cannot understand and support, and emotionally it is difficult to accept them, which in turn arouses the attention of netizens.”

  The center stated, “We will stand in the national market, fully respect the opinions of business owners and colleagues in the industry, improve the introduction of technical guidance, industry standards, legal operation and other standard systems, unify the brand promotion mechanism, regulate market operations, improve the quality of training services, and enhance The benefits of operating households have become favorites across the country and recognized by merchants in various regions. Win-win, win-win, mutual win, and long-term win-win situation."

  This response instantly cooled the boiling public opinion of "Xiaoyao Town Hu Spicy Soup".

  However, Ma Dongxiao believes that it is not necessarily a good thing for the government to stop it, as an ongoing trademark dispute case.

Now that the lawsuit has been brought to the court, it is necessary to believe that the judiciary will make a fair judgment and the professionalism and impartiality of the court.