"Green pepper" signboard defense battle
The court of second instance held that the use of the word "green pepper" by Zou Liyong's Qinghuajiao fish hotpot restaurant was legitimate and did not constitute infringement
Zou Liyong's green pepper fish hotpot, stir-fried green peppercorns embellish the center of the red soup hotpot.
At 10:00 p.m. on January 12, after the hot pot restaurant closed, Zou Liyong's family and the waiter could sit down for dinner.
On January 13, the case was held in the second instance of the Sichuan Higher People's Court.
On January 12, the night before the second-instance trial, Zou Liyong's hot pot restaurant was still in business, and he removed the green word "green peppercorn" on the shop sign.
A08-09 edition photography / Beijing News reporter Li Zhao
The low-key dark green cyan pepper is the finishing touch for the hot pot fish that is about to be cooked.
A pinch of dry and wet green peppercorns and hot peppers stir-fried with hot oil poured onto the bright red hot pot soup base, which is the centerpiece of the vision and enriches the taste-related layers of the palate.
For a long time, green pepper was a wild game that could not be on the table. Its numbness was short and fragrant, until Sichuan people found the best partner for it - river fresh fish dishes.
41-year-old Zou Liyong has been making fish hotpot for ten years. He never thought that this very familiar condiment would lead to a high-profile lawsuit.
In November 2021, Shanghai Wancuitang Catering Management Company filed a lawsuit against Zou Liyong’s Qinghuajiao fish hotpot restaurant, claiming that the word “green peppercorns” in Zou Liyong’s restaurant’s sign infringed the company’s trademark rights.
Similar to Zou Liyong's situation, dozens of restaurants in Sichuan with the words "green peppercorns" are involved in the lawsuit, covering Chengdu, Ya'an, Suining, Guang'an and other cities.
On November 26, 2021, the first instance of the case was held in the Chengdu Intermediate People's Court. The court ruled that Zou Liyong's Qinghuajiaoyu hot pot restaurant infringed Wancuitang's trademark rights.
Zou Liyong refused to accept and appealed.
On the morning of January 13, the second-instance trial of the case was held, and the "green pepper" that stirred up the Chinese catering industry was on the court of the Sichuan Provincial High Court.
Zou Liyong waited for the result he wanted: the court determined that his hotpot restaurant's use of the word "green pepper" was a legitimate use and did not constitute infringement.
"A lawsuit"
On January 13, Zou Liyong and his wife Yang Bin got up early, and they had to drive to the Sichuan Higher People's Court.
Yang Bin, who was sitting in the co-pilot seat, sent a WeChat Moments, "I have mixed feelings early in the morning. Today the High Court is in court, and I look forward to a good result."
More than two months ago, a court summons was sent to Zou Liyong's hot pot restaurant, breaking the peaceful life: their green pepper fish hot pot restaurant was sued for trademark infringement.
"We thought it was fraudulent information at first." Zou Liyong said that he has been doing fish hotpot for ten years. "It's all a small business that is honest and responsible, and I didn't provoke any of them. How can I expect a lawsuit?"
Zou Liyong is a native of Leshan, Sichuan. After dropping out of school at the age of 16, he worked in a restaurant in the county seat.
He started washing dishes, and after staying in the back kitchen for a long time, he began to learn how to cook. Stir-frying hot pot ingredients and ordering bean curd are his specialties.
In 2011, Zou Liyong and Yang Bin came to Chengdu to make a living, and partnered with friends to open a beancurd fish shop.
After getting up early all day and working in the dark to save some hard money, the couple decided to go it alone.
In October 2019, Zou Liyong and his wife's Wu Apo Qing Sichuan Pepper Fish Hotpot Restaurant opened in Wenjiang District, Chengdu.
However, the name "Wu Granny" could not be registered as a trademark, because a restaurant in Wenjiang District of Chengdu registered the trademark "Wu Granny" first.
It was not until March 2021 that Zou Liyong changed "Five Granny" to "Zou Yujiang" and applied for a trademark.
On October 21, 2021, "Zou Yujiang" was successfully registered as a trademark for catering and accommodation.
Zou Liyong couldn't figure out how the blue pepper fish of "Zou Yujiang" violated the rights and interests of a catering company in Shanghai thousands of miles away?
Not long after Zou Liyong received the summons, Tang Huachun, the owner of a green pepper fish hotpot restaurant in Qingyang District, approached Zou Liyong and told him that he had found several "green pepper fish" restaurants on the Internet that were "bad".
Tang Huachun's green pepper fish shop was sued twice.
Before and after the first prosecution, the lawyer representing the other party approached her, hoping to "private" at a price of 15,000 to 30,000, but Tang Huachun did not agree.
Three hours before the trial, the court suddenly informed Tang Huachun that the other party had withdrawn the lawsuit without paying the legal fees.
After the lawsuit was withdrawn, the other party found Tang Huachun again to discuss a private settlement.
After the negotiation failed, the lawsuit was filed again on December 6, 2021, and the court date was set for February 25.
Zou Liyong decided to set up a WeChat group for the merchants involved in the lawsuit to defend their rights.
In this WeChat group called "Trademark Infringement Group", most of the members are named after "XX Diqing Zanthoxylum Fish".
According to Zou Liyong's statistics, the stores involved in the lawsuit are small husband-and-wife stores with small profits, and the operators have no culture and do not understand trademark rights.
Among the accused merchants, a store owner in Meishan couldn't bear the pressure and paid 10,000 yuan for "private".
On November 26, 2021, the first instance of the case was heard in the Chengdu Intermediate People's Court. Zou Liyong and the owner of the "Ganmaoyu Hotpot Restaurant" in Longquanyi District stood in the dock at the same time.
Zou Liyong, who had filed a lawsuit for the first time, chose to respond alone.
On the one hand, he firmly believed that he did not infringe, on the other hand, the lawyer fee of several thousand yuan was also a lot of money for him.
In court, Zou Liyong argued that Wancuitang's trademark was in the process of being invalidated and its rights were unstable; secondly, the font "green pepper" used by Wu Apo Hotpot was inconsistent with the font of Wancuitang's trademark, which did not constitute infringement; , green pepper is the common name.
The Chengdu Intermediate People's Court held that the accused infringing logo was used by Wu Apo Hotpot in store signage, etc., and was prominently used.
Wu Po Hot Pot Restaurant claimed that the accused infringing logo "Qinghuajiao" was a common name. The court held that Wu Po Hotpot Restaurant failed to provide evidence to prove that "Qinghuajiao" was the statutory or conventional common name for the service category of "restaurant". The relevant claims of Apo Hotpot Restaurant were not supported by the court in accordance with the law.
The first-instance judgment of the Chengdu Intermediate People's Court shows that the defendant Wenjiang Wu Apo Qinghuajiaoyu Hotpot Restaurant shall compensate the plaintiff Shanghai Wancuitang Catering Management Co., Ltd. for economic losses of 25,000 yuan and reasonable expenses of 5,000 yuan within 15 days from the date when this judgment takes effect, totaling 5,000 yuan. 30,000 yuan.
Covered "green pepper"
"Paying 30,000 yuan is equivalent to four months' worth of work!" After the first trial, Zou Liyong and his wife were both distressed and regretful, regretting that they did not hire a lawyer.
They refused to accept the verdict and appealed to the Sichuan Higher People's Court.
"Our family really makes things worse." Yang Bin's words have always been straightforward.
In 2019, Wu Apo Qing Sichuan Pepper Fish Hotpot Restaurant caught up with the outbreak of the new crown just two months after its opening.
This store is a source of income for a family of six.
Yang Bin told the Beijing News reporter that there are two elderly people above them, and a pair of children below them. The daughter is in the second year of junior high this year, and the youngest son has not yet gone to primary school.
In order to cut costs, the store hired only one helper.
Zou Liyong is in charge of killing fish and frying ingredients to make hot pot, Yang Bin is in charge of the cashier at the front desk and running the hall, and Zou Liyong's 70-year-old father also wants to clean the shop.
They can only sit down for dinner after closing at ten o'clock in the evening.
After losing the first trial, Zou Liyong took out the word "green" on the "Qinghuajiao fish hotpot" in the shop, and took a new photo and uploaded his WeChat avatar.
All the "green" characters that appear in the store with the word "green pepper" are covered with paper.
The news that dozens of Qinghuajiao restaurants in Sichuan were accused of infringement spread and attracted attention.
The center of the dispute is whether a well-known condiment ingredient can be registered as a trademark, and whether the large-scale rights protection lawsuit initiated is suspected of "malicious touching of porcelain"?
Wang Mingyu, executive chairman of Sichuan Pepper Industry Development Promotion Association, also paid attention to this matter.
On December 24 and 25, 2021, Sichuan Pepper Association held an emergency conference call with national pepper industry experts, Sichuan pepper associations, lawyers, and trademark agencies across the country to discuss the trademark infringement in this case.
So far, the "Qinghuajiao" case has become more than just a case of rights protection.
"'Qinghuajiao' as the unique seasoning name of our Sichuan cuisine, if it is used exclusively by a foreign enterprise, our Sichuan green peppercorn planting and production enterprises will not agree first." Wang Mingyu said.
In China's taste map, spicy is considered to be the representative taste of Sichuan cuisine, but the history of "numbing" is much earlier than "spicy".
Chili peppers were imported from the Ming Dynasty, while peppercorns have been grown in China for 2,600 years.
According to Wang Mingyu, Sichuan is a large province of Chinese prickly ash, with a planting area of more than 5 million mu of prickly ash, and more than 2 to 3 million mu of green prickly ash.
Red pepper grows in high-altitude areas, while green pepper grows in low-altitude areas. For a long time, red pepper has played the leading role in the pepper camp. It was not until the 1990s that green pepper officially entered the field of Sichuan cuisine. Green pepper can effectively remove fishy smell. Flavor, Sichuan Jinyang and Chongqing Youyang are the main producing areas.
Wan Cui Tang, on the other side of the public opinion turmoil, was also controversial.
According to public information, Shanghai Wancuitang Catering Management Co., Ltd. was established on June 24, 2013. Its main business scope is small restaurants (excluding cooked food and lo-mei), restaurants, and catering management. The legal representative is Zuo Zhengfei.
According to Tianyancha information, the company has more than ten lawsuits involving trademark infringement, and some of the lawsuits have received compensation ranging from 15,000 to 200,000 yuan.
Zuo Zhengfei previously responded to the media that all lawsuits were initiated by a third party, Zhengshang Luhe (Beijing) Intellectual Property Service Co., Ltd.
On the evening of December 27, 2021, some media visited the site according to his registered address and found that Zheng Shanglu and others had gone to the building empty.
According to the Sichuan Legal News, Zuo Zhengfei said that during the actual rights protection process, after the rights protection company found the object of the "Qinghuajiao" lawsuit, it would issue a certificate of entrustment and hand it to the staff of Wancuitang for confirmation. Does not participate.
"After verification, we have received 2 compensations for rights protection, totaling 35,000 yuan. We have not received a cent, and all of them have been given to Zhengshang Luhe."
"90% of our employees are from Sichuan. The green pepper fish is also developed in cooperation with Sichuan chefs. I myself go to Sichuan several times a year. I like Sichuan and Sichuan cuisine very much, and I didn't expect to encounter it at all. Such a thing." Afterwards, Zuo Zhengfei tried to draw a clear line with this rights defense.
In the aforementioned media interview, Zuo Zhengfei announced that all the lawsuits were withdrawn, and many businesses received notices of withdrawal.
However, the case of Zou Liyong and another restaurant has entered the appeal process.
The Beijing News reporter repeatedly called Zuo Zhengfei and Zheng Shang Luhe, but received no response.
Second trial reversal
Zuo Zhengfei did not appear in court at the second-instance trial on the morning of January 13.
The attorneys representing the plaintiff and the defendant debated their respective views.
The court of second instance held that the focus of the second instance in this case was whether Wu Apo Hotpot Restaurant's use of the word "green peppercorn" on the shop sign infringed the exclusive right to use the registered trademark of Wancuitang Company, and assumed corresponding responsibilities.
Zou Liyong's attorney Feng Jiankun stated in his opinion that "green pepper fish" is a well-known dish in Sichuan, and the appellant did not use the name prominently. Whether subjectively or objectively, it is not a trademark used to identify the source of restaurant services. constitute trademark use.
In addition, in terms of shape, the alleged infringing “Qinghuajiaoyu hotpot” logo is not similar to the trademark involved, considering 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, Due to factors such as the usage habits of the Sichuan catering industry and the identification habits of consumers, the use of the alleged infringing logo will not cause confusion or misunderstanding by the relevant public.
Feng Jiankun believed that the appellant's use of "green peppercorns" was a descriptive use of the main raw materials of its own specialty dish "green peppercorn fish hotpot", and it was a legitimate use.
The appellee had no loss, and at the same time, the appellant had no intention to infringe, the business scale was small, and it was severely affected by the epidemic, and there was no profit arising from the alleged infringement.
At the court, attorney Wan Cui Tang Fang presented several trademark materials. On April 6, 2016, the registered trademark No. 12046607, the content of which was the words "green pepper" arranged from top to bottom.
On September 7, 2016, the registered trademark No. 17320763, the content of the trademark is the words "green pepper" arranged horizontally, with a cloud-shaped pepper pattern on the left; on June 21, 2018, the registered trademark No. 23986528, the content of the trademark It is the word "green peppercorns" arranged horizontally, with a cloud-shaped peppercorn pattern on the top.
The approved service items of the above registered trademarks are all in Class 43, including restaurants, restaurants, etc., and they are all within the validity period.
Wan Cui Tang Fang’s attorney said that although the label of green peppercorns on condiments has been regarded as a common name by the public, the use of green peppercorns in catering services is indeed not a common name for catering services, and its use in catering services has certain significant “Just like the millet trademark is definitely a generic name when used on food, but when it is used on computers, mobile phones and TV products, it has strong distinctiveness.”
Wan Cui Tang also stated that Qinghuajiao itself is not a matter stipulated by my country's Trademark Law and cannot be registered, but it still has the identification and distinctiveness of distinguishing goods or services.
Under the circumstance that the green pepper trademark has been legally registered, the legitimate rights and interests of the respondent should be protected.
"Because our registered trademarks are not registered condiment raw materials, but registered on catering related services, just like millet and apples are not registered on food or fruit, but on mobile phones, computers and other electronic products. As the owner of the green pepper trademark, the respondent has the right to safeguard its own trademark exclusive right and demand compensation from the infringer."
Wan Cui Tang Fang’s attorney also stated that the appellant used green pepper for store recruitment, not just the description and explanation of the main raw materials of its own special dishes, and the use of green pepper in a prominent position, with a large font, constituted prominent use.
It is indicated that the raw materials of these vegetables are obviously intended to identify the source of the product or service, which may easily cause confusion or misunderstanding of the source of the product or service by the relevant public.
In the end, the court of second instance held that it is a common practice in the catering industry to mark the names of special dishes on the restaurant sign, especially in the operation of many restaurants featuring Sichuan cuisine in the Sichuan-Chongqing area, whether it is the sign or the menu to use "green pepper". The relevant public are accustomed to interpret its meaning as a special dish containing green pepper seasoning.
As an operator in the catering industry, Shanghai Wancuitang Catering Management Co., Ltd. should follow the principle of good faith in registration and use of trademarks, and it has no right to use and honestly operate the word "Qinghuajiao" for Wenjiang Wupo Qinghuajiaoyu Hotpot Restaurant. Intervention and prohibition.
Accordingly, the court determined that Wenjiang Wu Apo Qinghuajiaoyu Hotpot Restaurant's use of the word "Qinghuajiao" was legitimate and did not have the function of identifying the source of goods and services. Its use did not constitute infringement and should not be liable for infringement.
The court of first instance found that the facts were wrong and should be corrected.
the boundaries of rights
"Simple moral intuition is often more direct to the essence of things than various reasoning skills." Deng Hongguang, a professor at the School of Civil and Commercial Law of Southwest University of Political Science and Law, commented on the second-instance judgment of the "Qinghuajiao" case.
"In the second instance of the 'Qinghuajiao' trademark case, the Sichuan High Court rejected all the claims of the trademark owner, and made a good balance between the legal protection of trademark rights and the legitimate use of specific words by other operators. While applying the Trademark Law, it reflects and respects the common sense, common sense and common sense of the people, demonstrates the legal literacy and humanistic care of judges, conveys the warmth of the judiciary, and is a very vivid legal publicity class."
Can "green pepper" become a trademark and be registered?
Hu Yong, executive director of the Sichuan Geographical Indication Trademark Committee, pointed out that this depends on the registration classification of the trademark, "If it is registered in the traditional food seasoning category, or the agricultural food category, it must be an inherent and public thing, we think It should not be registered, but in other categories, because there are many different categories in the trademark law, such as the IT industry or some other industries, green pepper cannot be said to be an exclusive term.”
my country's "Trademark Law" stipulates that the trademark applied for registration should have distinctive features, easy to identify, and must not conflict with the legal rights first obtained by others.
Article 59 also stipulates that the general name, figure, model of the commodity contained in the registered trademark, or the quality, main raw material, function, use, weight, quantity and other characteristics of the commodity, or the place name contained in the registered trademark shall be registered. The owner of the exclusive right to use a trademark has no right to prohibit the legitimate use of others.
Hu Yong said that when examining whether a trademark can be registered, the State Trademark Office will consider whether it is representative in the industry, whether it is an exclusive term, whether there is ambiguity and other factors, "because trademark registration itself is a private right, if A trademark that does not have a distinctive representation in this industry field will not be registered as a trademark.”
This is also the reason why Hu Yong believes that the "Qinghuajiao" case is fundamentally different from the previously reported Tongguan Roujiamo and Xiaoyao Town Hu spicy soup.
In Hu Yong's view, "Tongguan Roujia Mo" and "Xiaoyao Town Hu Spicy Soup" are collective trademarks, which are authorized to be used by the management organization in accordance with the designated use management methods, while green peppercorns are used as a plant variety name in the catering industry for private use. It is inappropriate to register a trademark.
Ma Yanfei, deputy chief lawyer of Sichuan Zeshi Law Firm, told the Beijing News reporter, "Trademark registration is not a panacea, and it is not necessarily unconditionally protected by law. Before rights protection, necessary assessments are also required. Reduce or avoid improper rights protection and improper rights protection. The Tongguan Roujiamo and Qinghuajiao cases fully demonstrate that rights protection must be legitimate, legal and appropriate.”
Ma Yanfei believes that "green pepper" should not be registered as a catering trademark, and its distinctiveness is very weak.
If the defendant merchant can invalidate the trademark "Qinghuajiao" with appropriate evidence and reasons, it is the fundamental way to solve the problem.
"We are now in the process of applying to relevant agencies for invalidation of the trademark." Yan Long, executive chairman of the Sichuan Hotpot Association, told the Beijing News that in December last year, they submitted several complaints to the "Sichuan Hotpot Association" in the name of "Sichuan Hotpot Association". The application for invalidation of "Zanjiao" and its related trademarks has not yet received a reply.
Zhao Mei, director of the Trademark Supervision Department of the Sichuan Provincial Market Supervision Bureau, said that the right to register a trademark and the exclusive right to use a registered trademark are two concepts. If you cannot use the right to register a trademark, you can apply for rights protection indefinitely through the exclusive right to use a registered trademark.
"In this case, many of the companies involved are small catering companies. I hope everyone can enhance their awareness of the protection of our trademark rights through this case."
"The legal awareness of small businesses is relatively weak," Yan Long told the Beijing News reporter that the Hot Pot Association is currently planning to establish an intellectual property rights protection center to provide training for catering companies, especially small business operators, to assist in the protection of rights in such incidents.
At noon on January 13, just after the trial ended, dozens of new messages flooded into Zou Liyong's WeChat group.
The friends of Qinghuajiaoyu watched the live broadcast of the trial online simultaneously, and when the verdict was announced, everyone breathed a sigh of relief.
On January 14, the owner of the "Kanmaoyu Hotpot Restaurant" in Longquanyi District, who was indicted at the same time as Zou Liyong, also participated in the second-instance trial in the Sichuan Provincial High Court.
According to the store owner, before the trial, the attorney representing Wancuitang Fang expressed his wish to withdraw the lawsuit, but he was unwilling and insisted on holding a trial to discuss an argument.
The case was not pronounced in court, but the group felt that there was a precedent for the previous day's judgment, and the result was "stable".
Because of this turmoil, Tang Huachun also removed the word "green" from the "green pepper fish" in the old shop.
Later, she simply closed the old store and opened a new store in a new location, but she was too slow to name it.
On the afternoon of January 14, she also received a notice of withdrawal from the other party.
"When I go back, I'll make up the sign of the green pepper fish." Zou Liyong was very satisfied with the verdict, with a smile he couldn't hide on his face.
A group friend in the WeChat group said, "The opening of the word 'green' this time requires a sense of ceremony to cut the ribbon, in order to reflect our pride!"
Beijing News reporter Li Zhao