(Economic Observer) Three trademark disputes: how to avoid the next "injury person"?
China News Service, Beijing, November 30th, title: Three trademark disputes: how to avoid the next "injury person"?
China News Agency reporter Liu Liang
Recently, following the trademark rights disputes caused by "Xiaoyao Town Hu spicy soup" and "Tongguan Roujiamo", fruit merchants in Henan, Sichuan and other places once again triggered public opinion due to the trademark dispute of "Korla Xiangli".
How to judge whether the "trademark infringement charges" of similar incidents are reasonable and avoid the next "injury"?
The key to solving doubts lies in distinguishing the types of trademarks.
"General Trademarks" and "Collective Trademarks"
The above three incidents seem to be caused by trademark disputes, but the specific circumstances are different.
In response to the "Xiaoyao Town Hu spicy soup" incident, the State Intellectual Property Office of China pointed out that the registrant of "Xiaoyao Town" is a common trademark, and its registrant cannot collect the so-called "membership fee."
At the same time, "Tongguan Roujiamo" is a geographical indication registered as a collective trademark, and its registrant has no right to license the use of the collective trademark of this geographical indication to merchants outside the specific area of Tongguan and charge a franchise fee, nor does it have the right to prohibit the use of the geographical indication in a specific area of Tongguan. The business legitimately uses the place name in the geographical indication collective mark.
What is the difference between "general trademark" and "collective trademark"?
Chang Sha, a partner of Beijing Jingdu Law Firm, pointed out in an interview with a reporter from China News Agency that as the subject of the application, collective trademarks can only be registered by a certain organization; ordinary trademarks can be registered by a certain organization or an individual operator. Apply for registration.
In terms of the scope of use, collective trademarks cannot be used by members outside the organization; ordinary trademarks can be used by members outside the organization.
Chang Sha said that according to the relevant provisions of the Trademark Law, a trademark license fee may be charged for the foreign license to use a trademark.
However, "trademark license fee" is different from "conference fee". The trademark license fee is negotiated by both parties and requires terms such as the license period and scope of use; membership fee generally refers to the fee charged by a group to its members, and the membership fee standard is generally set by the group itself .
Therefore, as a common trademark "Xiaoyao Town Hula Tang", its trademark owner has no right to collect membership fees from others, and as long as the other person is using it properly, it is clearly distinguished from the registered trademark and does not cause consumer confusion. Bear tort liability.
Regarding the "Tongguan Roujiamo" registered with a geographical indication as a collective trademark, Chang Sha analyzed that its trademark registrant can charge a certain membership fee to members who voluntarily join the association in a specific area of Tongguan. If the word "roujiamo" is used as the store's signboard, as long as it is properly used, is clearly distinguished from the registered trademark, and does not cause confusion among consumers, foreign restaurants shall not be liable for infringement."
"Certification mark"
In the "Korla Fragrant Pears" incident, the fruit merchant used the word "Korla" in the sales of Fragrant Pears and was sued by the Korla Fragrant Pear Association of Xinjiang Bayingoleng Mongolian Autonomous Prefecture on the grounds of infringement.
However, it should be pointed out that "Korla Fragrant Pear" is a "certification trademark", which is different from the aforementioned two trademarks.
Chang Sha said that China's certification trademarks are mainly of two types: origin and quality.
"For this kind of certification trademark, the origin of the product will have a greater impact on the quality of the product. Therefore, the origin certification trademark is mainly related to agricultural products, such as Korla fragrant pear, Huili pomegranate, Anxi Tieguanyin, Jinhua ham, etc. But Hu spicy Soups and steamed buns are processed foods, and their quality will have a certain relationship with the place of production, but the influence of the place of production is smaller than that of agricultural products."
Chang Sha said that if a market entity using the "Korla Fragrant Pear" trademark does meet the requirements for registration of geographical indications such as the origin and quality of the "Korla Fragrant Pear", the market entity has the right to legally use the geographical indication.
However, if the product sold by the market entity is inconsistent with the origin and quality required by the geographical indication of "Korla Fragrant Pear", and uses the same or similar mark as "Korla Fragrant Pear", then it will be suspected of constituting trademark infringement and may also be due to Misleading consumers and was found to constitute unfair competition.
Don't let trademark rights deteriorating
There is nothing wrong with the legitimate rights protection of trademark registrants, which is conducive to cracking down on illegal businesses that "sell dog meat" and allow more consumers to buy "genuine" goods.
“However, without a detailed understanding of the scope of protection of trademark rights, blindly safeguarding rights will be counterproductive.” Chang Sha said that the scope of rights of different trademarks is relatively clear. Before applying for a geographical indication trademark, you can learn more about the protection of different trademarks. Scope, apply for different trademarks according to their own claims.
At the same time, for each store owner, before opening a store to use the name, they should also actively screen whether there is a risk of infringing on the trademarks of others, so as to avoid unnecessary losses.
Xu Haoran, vice president of the China Association of Small and Medium Enterprises, pointed out that the original intention of protecting local characteristic products is good, but it is necessary to balance exclusive rights and public interests to avoid the emergence of a "dominant family" that harms the legitimate rights and interests of the majority of merchants or even damages the brand. The image of the situation.
"If rights protection changes, even if there is a legal basis for support, but the method is not recognized by consumers, it will be detrimental to the development of the brand." Chang Sha said.
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