Chinanews Finance, January 13 (Reporter Song Yusheng) Can restaurant recruits use the word "green pepper"?
On the 13th, the judgment of the Sichuan Higher People's Court gave a clear answer to this - the use of the word "green pepper" by the restaurant is legitimate use.
Reports at the end of 2021 showed that many catering companies became defendants for using the word "green peppercorns".
The reason is that they used the "green pepper" trademark, which was accused of infringing.
The plaintiff, Shanghai Wancuitang Catering Management Co., Ltd., has registered a number of trademark names of "Qinghuajiao" and the words "Qinghuajiao".
Data map: Diners enjoy hot pot.
Photo by Zhang Lang
It is understood that green pepper is a common condiment in Sichuan, and green pepper fish hot pot is also a Sichuan feature.
In this case, Wenjiang Wu Apo Qinghuajiaoyu Hotpot Restaurant, which was suspected of infringement, lost the first instance.
However, the second-instance judgment of the Sichuan Higher People's Court showed that the first-instance judgment was revoked, all the claims of Shanghai Wancuitang Catering Management Co., Ltd. were rejected, and the first-instance and second-instance case acceptance fees were borne.
Why did the court of second instance make such a judgment?
The Sichuan Higher People's Court held that Shanghai Wancuitang Catering Management Co., Ltd., as an operator in the catering industry, should follow the principle of good faith in the registration and use of trademarks, and the legitimate use of the word "green pepper" by Wenjiang Wu Apo Qinghuajiaoyu Hotpot Restaurant and operate honestly, and it has no right to intervene and prohibit.
The Sichuan Higher Court also stated in its WeChat public account that Shanghai Wancuitang Catering Management Co., Ltd. applied for the registration of "Qinghuajiao" in the 43rd category of services, which can be considered to be significant and can play a role in distinguishing service sources. .
However, due to the natural connection between catering services and dish seasonings, the distinction between the service mark logo and the special dishes with the words green peppercorns is subtle and confusing, which greatly reduces the distinctiveness of their registered trademarks, and it is almost difficult to pass The role of the trademark to identify the source of the service.
The court said that the "green pepper casserole fish & signature green pepper flavor" used by Shanghai Wancuitang Catering Management Co., Ltd. in its official website promotion actually emphasized that "green pepper" is the taste and characteristics of its dishes, and it was in the lawsuit. The evidence submitted also cannot prove that the registered trademark involved has achieved a high degree of recognition through use, and it can be clearly distinguished from the "green peppercorn" used as a seasoning.
The first paragraph of Article 59 of the "Trademark Law of the People's Republic of China" stipulates that the general name, graphics and model of the product contained in the registered trademark, or directly represent the quality, main raw materials, functions, uses, weight, quantity and The owner of the exclusive right to use the registered trademark has no right to prohibit others from using it properly.
The court pointed out that after the registered trademark involved is authorized, its weak distinctiveness determines that its protection scope should not be too wide, otherwise it will hinder the legitimate use of other market players and affect the market order of fair competition.
"It is a common practice in the catering industry to mark the names of special dishes on the restaurant menu, especially in the operation of many restaurants featuring Sichuan cuisine in the Sichuan-Chongqing area. It is customary to interpret its meaning as a special dish containing green pepper seasoning."
The court held that Shanghai Wancuitang Catering Management Co., Ltd., as an operator in the catering industry, should follow the principle of good faith in the registration and use of trademarks, and the fair use and honest operation of the word "Qinghuajiao" by Wenjiang Wu Apo Qinghuajiaoyu Hot Pot Restaurant, It has no right to intervene and prohibit.
It is worth noting that such trademark disputes also occurred in "Xiaoyao Town" and "Tongguan Roujiamo" last year.
The reporter noticed that the State Intellectual Property Office had responded that "Xiaoyao Town" is an ordinary trademark, and its registrant cannot charge the so-called "membership fee" accordingly.
"Tongguan Roujiamo" is a geographical indication registered as a collective trademark, and its registrant has no right to license the use of this geographical indication collective trademark to merchants outside the specific area of Tongguan and collect franchise fees.
At the same time, there is no right to prohibit the merchants in the specific area of Tongguan from using the place names in the collective trademark of the geographical indication.
The State Intellectual Property Office emphasized at the time that it is necessary to protect intellectual property rights in accordance with the law, and to prevent the abuse of intellectual property rights, and not to charge arbitrarily.
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