On the morning of January 13, 2022, "Qinghuajiao" once again became the protagonist of the court and public opinion.
Previously, the "Wenjiang Wu-Apo Green Pepper Fish Hotpot Restaurant" operated by Mr. Zou in Chengdu was sued by Shanghai Wancuitang Catering Management Co., Ltd. (hereinafter referred to as "Shanghai Wancuitang") for infringing its "green pepper" trademark.
After the first instance was found to be infringing and awarded 30,000 yuan, he appealed.
At 9:30 a.m. on the 13th, the second instance of the case was publicly heard in the Sichuan Higher People's Court.
The case was presided over by a member of the Party Leadership Group of the Sichuan Provincial Higher Court and Vice President Liu Nan, and was broadcast live on platforms such as China Trial Open Network.
At the trial site, some representatives of the Provincial People's Congress, members of the Chinese People's Political Consultative Conference, the Provincial Market Supervision Bureau, the Provincial Intellectual Property Service Promotion Center, the Provincial Trademark Association, the Provincial Lawyers Association, and the Green Pepper Industry Association were also invited to observe the trial.
Whether the use of "green peppercorns" in the signboard of Mr. Zou's restaurant constitutes trademark infringement has become the focus of this trial.
Lost in the first instance:
Compensation of 30,000 yuan, Chengdu merchants appealed
Since 2019, Mr. Zou and his wife have started to operate "Wenjiang Wu Apo Qing Sichuan Pepper Fish Hotpot Restaurant".
In October 2021, he received a subpoena from the Chengdu Intermediate People's Court.
A company named Shanghai Wancuitang Catering Management Co., Ltd. sued, claiming that Mr. Zou's use of the word "green peppercorns" in many places such as store recruits and takeaway platforms infringed on its exclusive right to use its registered trademark, and claimed 50,000 yuan.
The case will go to trial on November 26, 2021.
On December 18, 2021, the Chengdu Intermediate Court made a judgment that the trademark infringement was established, and Mr. Zou was sentenced to pay 30,000 yuan.
Mr. Zou has since appealed.
In addition to Mr. Zou, since many "green pepper" restaurants in Sichuan were sued by Shanghai Wancuitang for infringement, the "green pepper" case aroused public attention.
Shanghai Wancuitang was accused of malicious abuse.
On the morning of this (13) day, the second instance of the "Qinghuajiao" case was held.
In the appeal, it requested the court to revoke the original judgment and dismiss all the claims of the Shanghai Wancuitang Catering Party.
He believes that the facts of the original judgment were unclear and the law was wrongly applied, and should be rescinded in accordance with the law.
Second instance hearing:
Appellant says "fair use is not infringing"
At the court, Mr. Zou and his agent believed that their use of the word "green pepper" was not a trademark use, and the "green pepper fish hotpot" logo used by the hot pot restaurant was not similar to the trademark involved.
In combination with the distinctiveness of the trademark involved, the region of use of the trademark involved, the appellant's specific use method, the regional characteristics of the catering industry, the usage habits of the Sichuan catering industry, and the identification habits of consumers, the use of "green peppercorns" in the shop sign The "Fish Hot Pot" logo is objectively the use of the name of the special dishes provided by itself, not the use of the logo to distinguish the restaurant service provider.
The use of the alleged infringing logo "Qinghuajiaoyu Hotpot" will not cause confusion or misunderstanding by the relevant public.
Mr. Zou said that their use of "green peppercorns" is a descriptive use of the main raw materials of their own specialty dishes and is a legitimate use.
At the same time, the appellee, Shanghai Wancuitang, did not suffer any losses, and its hot pot restaurant did not have intentional infringement, its business scale was small, and it was severely affected by the epidemic. and legal basis.
"The determination of the use of trademarks in the law needs to be combined with the cognition and subjective malice of small and medium-sized catering operations and ordinary consumers. In the case of infringement caused by relevant subjects because they do not have professional knowledge of trademarks, the purpose of legal judgment should be to popularize legal knowledge and persuade relevant subjects to standardize Use behavior, rather than punishment through compensation, so as to match the social status quo and the level of public awareness, prevent relevant subjects from conducting large-scale commercial rights protection, and also comply with the filling-in principle of trademark infringement and avoid wasting judicial resources." Mr. Zou's party Express.
Shanghai Wancuitang:
Infringement of the exclusive right to use a trademark should be compensated
On April 6, 2016, Shanghai Wancuitang Catering Management Co., Ltd. acquired the registered trademark No. 12046607. The content of the trademark is the words "green pepper" arranged from top to bottom.
On September 7, 2016, the registered trademark No. 17320763 was obtained. The content of the trademark is the words "green peppercorns" arranged horizontally, with a cloud-shaped peppercorn pattern on the left side.
On June 21, 2018, Shanghai Wancuitang Catering Management Co., Ltd. registered and obtained the registered trademark No. 23986528. The content of the trademark is the words "green pepper" arranged horizontally, with a cloud-shaped pepper pattern on the top.
At the first trial, the Shanghai Wancuitang party believed that through publicity and promotion, the above-mentioned trademarks enjoyed a relatively high reputation nationwide, and Mr. Zou’s Qinghuajiaoyu hotpot restaurant was not authorized by Wancuitang Company to sell at the door and Meituan without authorization. The platform used the word "green pepper" to mislead the relevant public and infringed the exclusive right to the registered trademark of Wancuitang Company.
In the second instance, the attorney representing Shanghai Wancuitang stated that Shanghai Wancuitang had the rights to the relevant trademark involved in accordance with the law and should be protected by law.
The first-instance judge applied the law correctly, and the company has the right to defend its rights nationwide. Green pepper is a common name for condiments, but it is not a common name for catering services in catering services, and it is distinctive in catering services.
The attorney also pointed out that the use of "green peppercorn" in Mr. Zou's shop is a trademark, and the word "green peppercorn" is prominently used, which has the same pronunciation and meaning as the trademark "green peppercorn" involved in the relevant case, which is easy to confuse the public. Confusion and misunderstanding; Mr. Zou's store uses "green peppercorns" for store signs, not just descriptive use in the menu, which will mislead the public.
The attorney said that "green pepper" is the name of the plant seed seasoning, but it is not a matter that cannot be registered under the Trademark Law.
Therefore, Shanghai Wancuitang Catering's right to the trademark "Qinghuajiao" involved in the case should be protected.
At the court, the attorney of Shanghai Wancuitang Catering also showed the registration certificate and transfer certificate of the trademark involved in the relevant case.
In the end, Wan Cui Tang's attorney believed that Mr. Zou's shop should stop using the "green pepper" logo on the shop sign and compensate for the loss, and believed that the judgment of the court of first instance was legal and reasonable.
Shanghai Wancuitang Catering has received overwhelming criticism for suing and defending its rights. The pressure is very high, but it also has positive significance. It has raised the legal awareness of Sichuan and Sichuan’s catering industry and the public’s trademark law, and promoted the development of related fields.
Currently, the trial is still in progress.