A handful of "green pepper" stirs the Sichuan catering industry
Chengdu merchants convicted of trademark infringement compensation and more than 30,000 Sichuan merchants sued
Sichuan Pepper Industry Development Promotion Association: Helping the accused company defend the rights
■ "When I received the subpoena, I thought it was a fraud."
Mr. Zou, the owner of a "green pepper fish" hot pot restaurant in Wenjiang, Chengdu, said so.
After working in catering for many years, they never expected that they would be sued like this: Shanghai Wancuitang Catering Management Co., Ltd. applied for multiple "green pepper" trademarks and sued Mr. Zou for trademark infringement.
■ "'Green pepper fish' is too common in Sichuan." In Mr. Zou's view, this infringement allegation was "unexplainable", but when he received the verdict on December 18, he was still stupefied: lost the lawsuit, compensated 30,000 yuan, and demolished it. The sign of the "Green Pepper" logo.
■ In fact, Shanghai Wancuitang Catering Management Co., Ltd. recently initiated lawsuits in many places in China, claiming that related restaurants infringed its "Qinghuajiao" trademark and demanded compensation for losses, including many merchants in Sichuan.
At present, some businesses are actively responding to the lawsuit, and some of the defendant businesses who have already judged the case are preparing to appeal, "(the lawsuit) is brought to the end."
■ The reporter learned that Sichuan Pepper Industry Development Promotion Association has begun to cooperate with chambers of commerce, scientific research institutes, and lawyers across the country to provide rights protection assistance to related pepper enterprises.
■ What do you think of the Shanghai company’s "green pepper" rights protection?
How can the defendant’s merchants claim their rights and safeguard their rights?
To this end, the reporter had a dialogue with many experts and industry figures.
Lawsuit /
"Green pepper fish" hot pot restaurant sued for infringement
Since 2019, Mr. Zou and his wife have been running the "Wenjiang Five Apo Green Pepper Fish Hot Pot Restaurant".
In October of this year, he received a subpoena from the Chengdu Intermediate People's Court.
"I thought I was scammed." Mr. Zou noticed that the cause of the case on the subpoena was "a dispute over trademark infringement" and felt even more "unexplainable."
Mr. Zou learned that the prosecutor was a company called "Shanghai Wancuitang Catering Management Co., Ltd." (hereinafter referred to as "Shanghai Wancuitang Catering").
He tried to contact the other party twice before the trial, but the other party did not respond to him.
On the afternoon of November 26, the case opened.
Along with Mr. Zou’s family as the defendant, there is also a "Gluttonous Cat Green Pepper Fish Hotpot Restaurant in Longquanyi District" in Chengdu.
In the indictment, Shanghai Wancuitang Catering alleged that Mr. Zou and Longquan’s hot pot restaurant “have repeatedly used the'green peppercorns' on the front plaque, fish ticket and Meituan platform of the shop without permission. "The word "misled the relevant public and violated the plaintiff’s exclusive right to use the registered trademark." Involving the company’s three "Green Huajiao" trademarks, it filed a claim of 50,000 yuan from each of the two stores.
Lose the case /
The court found a trademark infringement and awarded a compensation of 30,000 yuan
Mr. Zou and the others were very self-confident and did not hire a lawyer.
On December 18, when the two of them got the verdict, they were dumbfounded: they lost the case, and the court ruled that they should pay 30,000 yuan to Shanghai Wancuitang Catering for economic losses.
In the court's view, the alleged infringing logo was used by Longquan's hot pot restaurant for shop recruitment and Meituan shops, "and it was prominently used, and its use method and location used to identify the source of the goods, which belonged to trademark use. "In addition, the court held that the approved use category of the trademark involved is the same as the accused infringement service, and both are hotels.
The Chengdu Intermediate People’s Court wrote in its judgment: Comparing the alleged infringement mark "Qinghuajiao" with the trademark No. 12046607 involved in the case, both of which fully contained the three words "greenhuajiao", although it was before "greenhuajiao". The word "Chongqing" has been added, but the logo of "Qinghuajiao" is still the main identifying part of its shop sign. Its pronunciation and meaning are the same, which can easily make the relevant public mistakenly believe that the alleged infringing goods are related to The right holders of the trademark involved have certain connections, resulting in confusion and misidentification.
At the same time, there are similar statements in the judgment regarding the other two "Green Huajiao" trademarks that Shanghai Wancuitang Food & Beverages alleged to have been infringed.
The verdict also required that the two stores "immediately stop using the "green pepper" logo on store recruitment and Meituan within 30 days."
Rights protection /
Prepare to appeal: "Use it normally, accompany him to fight to the end"
"Our font is not the same as the other party's trademark." Mr. Zou said that he did not approve the judgment. In his opinion, the name and description composition of "Qinghuajiao" in Sichuan can be said to be "everywhere", "it is a plant." The common name of "Qingjiao" is also the seasoning." However, Mr. Zou and his wife temporarily dig out the word "青" which is "green pepper" in the shop.
Mr. Zhang, the person in charge of Glutton Green Pepper Fish Hotpot Restaurant in Longquanyi District, believes that, except for the reason why green pepper is a condiment and a common name, Shanghai Wancuitang Catering has not opened a store in Chengdu, nor has it promoted in Chengdu, and even Meituan The online shop on the platform will not affect the passenger flow of Shanghai Wancuitang catering.
"I have never caused any substantial economic loss to the plaintiff in production and operation." Mr. Zhang believed that he did not infringe. He did not cut out the word "green" on the signboard. "I used it in a reasonable and normal manner. What are you afraid of? Stay with him. ."
On December 24, both Mr. Zou and Mr. Zhang were ready to appeal to the Sichuan Provincial Higher Court.
The reporter also learned that at the same time they filed an appeal, many other shops involving "green pepper" in Chengdu were also waiting for the trial.
On the afternoon of the 24th, the reporter contacted Shanghai Wancuitang Catering Management Co., Ltd., and the staff member who answered the phone said: "We will not accept interviews on this matter, we know what it is."
Open the homepage of the company’s official website, and a "rights protection statement" will pop up, which mentions that some companies have infringed on the rights and interests of the "Qinghuajiao" brand (trademark registration number 12046607) under the name of Shanghai Wancuitang Catering Management Co., Ltd., including the door Header image, menu content, brand name, decoration image, etc.... The company has taken actions to protect the rights of the "Qinghuajiao" brand through legal channels.
According to Tianyancha’s statistics, 22 of the company’s 32 pieces of information related to litigation are related to “trademark infringement disputes” because the company listed as a defendant in the case involved multiple provinces and cities across the country, of which 10 Home is in Sichuan, involving Chengdu, Meishan, Guang'an, Suining and other places.
Deconstruction of "Green Pepper"
A
As a popular appellation and proprietary species name
Should not be applied for as a trademark
According to Gong Wei, a professor of Forestry College of Sichuan Agricultural University, the commonly known green pepper on the market is mainly Zanthoxylum bungeanum (Latin species name), which stems from the blue or green appearance of the fruit.
In Gong Wei's view, "green pepper" is a proprietary species name, and it is also a popular name for a certain type of pepper, and should not be applied for as a trademark; even if a trademark is applied for, it should be strict when claiming rights limits.
The reporter learned that after the "green pepper" trademark litigation aroused concern, the Sichuan pepper industry development promotion association held an emergency conference call with national pepper industry experts, national pepper associations, lawyers, and trademark agencies. "More colleagues proposed green pepper It is a kind of pepper, and it is also a common name. This is a malicious act of squatting a trademark."
Should be used as a public resource, "should not be monopolized"
According to Hu Yong, executive director of the Sichuan Provincial Geographical Indication and Trademark Committee, as a plant variety name, "green pepper" should be regarded as a public resource and should not be used as an exclusive trademark for monopoly applications.
Hu Yong stated that the Shanghai company, as a company, applied for "green pepper"-related trademarks, which belonged to private trademarks and should not be registered with private rights.
Du Shizhong, a partner of Beijing DeHeng (Chengdu) Law Firm, also believes that in specific cases, it should be used to describe the objective thing of green prickly ash, not to use green prickly ash as its own trademark and consumers will not see the green prickly ash. The relationship between Huajiao and Shanghai Wancuitang Catering Management Co., Ltd. has caused confusion.
"Green pepper is a common condiment, the name should be reserved for public use in catering services as a public domain resource, and should not be monopolized by any company."
Is it an abuse?
Such as "fair and fair use"
Enlarging the object of litigation involves abusing rights
Is the litigation of Shanghai Wancuitang Catering Management Co., Ltd. abusive?
Huang Chunhai, a senior partner and patent attorney at Taihetai Law Firm, said that legally, the "Qinghuajiao" trademark is different from the previous domestic incidents such as "Tongguan Roujiamo". The latter, as a collective trademark, has special features. According to administrative regulations, the exercise and protection of rights are different from ordinary trademarks.
Huang Chunhai introduced that green pepper is registered as a trademark in the catering industry, "I personally think there is no big problem." As long as the trademark belongs to the state of rights and there is an infringement, "then the protection of rights is legitimate."
However, Huang Chunhai believes that the usage similar to "Chongqing green pepper fish" and "green pepper fish hot pot" is only a descriptive use of processing methods, raw materials and flavors, not trademark use. "There is no infringement, and it is normal and reasonable use. "He explained that as a mark to distinguish the source of goods or services, trademarks "usually need to be prominently used." For example, ordinary consumers see "green pepper", "if they think of only a kind of dish, not Stores and brands are not trademarked use."
Huang Chunhai introduced that the large-scale protection of rights by right holders now seems to be a tendency in the field of domestic intellectual property rights.
"But it must be treated in detail-if the infringement is indeed infringement, then it cannot be considered as a problem because of the large number of infringements. On the contrary, if the matter in its suit does not constitute infringement and is a legitimate and reasonable use, then the trademark The behavior of the right owner goes beyond the scope of protection of laws and regulations related to trademark rights, expands the subject of litigation, and is considered an abuse of rights."
Chengdu Commercial Daily-Red Star News Correspondent Peng Liang
"Green pepper fish" provokes lawsuits, it's time to stop the wide-spreading net for rights protection
Recently, Ms. Tang, the owner of a hot pot restaurant in Chengdu, received a court summons and was told that the hot pot restaurant she had been operating for many years had infringed on the trademark “Qinghuajiao” of a Shanghai catering company.
In fact, not only Ms. Tang’s stores, but many catering companies in Chengdu, Suining, and Meishan have also become defendants for trademark infringement disputes. There are even restaurant owners and lawyers who negotiate price mediation in private.
A slight difference from the trademark litigation rights protection of "Xiaoyao Town Hu spicy soup" and "Tongguan Roujiamo" is that the owner of the Qinghuajiao trademark is a catering company, not a local industry association, and the Qinghuajiao restaurant trademark is not a collective trademark geographical indication. .
In this case, the Shanghai company obtained multiple valid trademarks in the 43rd category of "Green Huajiao" text from the State Intellectual Property Office. This category covers fast food restaurants, restaurants, restaurants, and company canteens for catering services.
In other words, the green prickly ash here is not for trademark registration as a seasoning product, but a cross-category trademark registration for generic names. This is not prohibited by law. As the legal owner of the green prickly ash brand, the company in Shanghai considers itself Prosecution for infringement of its trademark exclusive rights is itself its legitimate rights and interests.
However, from the perspective of ordinary self-employed catering businesses, with so many registered trademarks nationwide, it is difficult to know which ones have been registered, and there is a risk of infringement when used.
The key point is that Qinghuajiao is not a well-known restaurant brand such as Haidilao. The operator uses "green pepper fish" as the name of the store, emphasizing only the method of fish production, and there is no subjective intention to infringe and touch porcelain.
Moreover, it is not easy to mislead the average customer.
Prosecution and protection of rights are certainly the legitimate rights and interests of trademark owners, but my country’s "Trademark Law" also provides for a fair use system.
Green pepper is a common name for a seasoning and one of the main raw materials of green pepper fish. Whether the green pepper fish is used reasonably or is suspected of infringement, the court will definitely make a comprehensive judgment.
What needs to be emphasized is that if trademark registrants regard trademark rights protection as a profitable business, they will entrust lawyers to spread their rights across the country for vulnerable groups such as self-employed individuals who are not legally aware, and then the two parties will cooperate to "share" rights afterwards. The real intention of this type of behavior does not lie in the rights protection itself, but in an attempt to directly profit from it. This is actually suspected of another kind of "trademark-to-ceramic behavior."
It not only wastes judicial resources, but also increases the operating costs of small and micro market players such as small shop owners and small business owners.
In the name of trademark rights protection, if one after another litigation against self-employed individuals becomes a way of making money, it will definitely harm the normal market operation order.
Chengdu Commercial Daily-Red Star News Special Commentator Shu Shengxiang