By China National Food Industry Corporation (hereinafter referred to as "China Food"), Shenzhen Zhonghao (Group) Co., Ltd. (hereinafter referred to as "Zhonghao") and (Thailand) Tencel Healthcare Co., Ltd. (hereinafter referred to as "Thailand Tencel" ) jointly established by the Sino-foreign joint venture Red Bull Vitamin Beverage Co., Ltd. (hereinafter referred to as "China Red Bull") and Thailand Tencel caused by the ownership and use of Red Bull's trademark rights, after a number of court judgments, not only in legal It has caused continuous controversy in the industry and practice circles, and the resulting adverse social impact has also caused great concern in the industry.
This concern stems from the impact and harm the judgment may have on the development of China's real economy.
Red Bull is not an isolated case. According to incomplete statistics, among the trademarks used by more than 4,000 listed companies across the country, more than 600 companies, like China Red Bull, are in a state of long-term separation of trademark use rights and ownership rights.
The trademark ownership of these listed companies is in the hands of the major shareholder group companies or others. Once the listed companies become stronger and bigger, and the trademarks become well-known or well-known, there will inevitably be a phenomenon of "big peaches attract the attention of capital."
The act of "picking peaches" is very likely to become a hidden danger to destroy these listed companies.
600,000 terminals, more than 4 million sales outlets and the entire industry chain are paying for capital to pursue profits
As a functional drink containing water, sugar, caffeine, inositol and vitamin B, Red Bull Beverage was first founded in Bangkok by Thai businessman Xu Shubiao, and its trademark rights in Thailand belong to Xu Shubiao, who is the actual controller ( Thailand) Tencel Healthcare Co., Ltd. is owned.
Its development in China has generally gone through three stages:
The first stage was when Xu Shubiao established Hainan Red Bull Beverage Co., Ltd. (hereinafter referred to as “Hainan Red Bull”) in 1993 to open up the Chinese market, but he encountered two key obstacles: Red Bull Beverage’s established product production standards failed to pass the China Sanitation Therefore, it does not meet the production standards of Red Bull vitamin functional beverages suitable for market circulation; Jinhua Bullfighting Amusement Center has obtained the registered trademark of Bullfight in 1994, so the Red Bull graphic trademark containing the bullfight pattern cannot be approved and registered in China.
Therefore, Hainan Red Bull can only engage in the sales of imported Red Bull beverages since its establishment, but cannot actually produce and sell Red Bull beverages.
In the second stage, after the first failure to develop the Chinese market, Chinese market leaders Yan Bin and Xu Shubiao took advantage of the opportunity of reform and opening up in the 1990s to establish a Sino-foreign joint venture, China Red Bull, through joint ventures with China Foods and Zhonghao. The Chinese side (China Food and Zhonghao) cooperated to eliminate two key obstacles affecting the production and trademark registration of Red Bull Beverage: First, China Food applied to the Ministry of Health to obtain a vitamin functional drink (the content of ingredients that meets the efficacy of Red Bull Beverage). Production license, the second is that Zhonghao buys out the ownership of the Bullfight trademark from Jinhua Bullfighting Amusement Center.
Since then, the Chinese side has cleared the obstacles for the production and operation of Red Bull Beverages in China (that is, the products can be produced and sold, and the trademarks can be registered and used). China Red Bull has gradually opened up the Chinese market and established a nationwide production and sales network. section climbs.
As of 2020, China Red Bull has more than 4 million sales outlets across the country, with a cumulative sales of more than 30 billion cans, of which the annual sales revenue in 2020 will exceed 20 billion yuan. The market value of the Red Bull brand in China has increased from 551 million yuan in 1996 to 50.68 billion yuan in 2015.
The third stage is the stage of disputes between the two parties.
In 2012, Mr. Xu Shubiao passed away, and his son Xu Xinxiong became the actual controller.
This incident became a watershed for the joint venture between China Red Bull and Thailand's Tencel from close cooperation to constant disputes.
On July 24, 2012, Thailand Tencel, together with some other Chinese investors, established a new company in Guangdong with the production of Red Bull Beverage as its business content - Guangzhou Yao Energy Drink Co., Ltd. (hereinafter referred to as "Guangzhou Yao Energy").
On September 7 of the same year, the Red Bull trademark, which had been used by China Red Bull for 18 years, was preemptively registered, and the trademark was licensed to Guangzhou Yao Energy on May 7, 2014 when the registration was approved; at the same time, the original joint venture company Some executives seized the sales channels, customers and employees of the joint venture by setting up companies of the same type; finally, they sued China Red Bull and its supporting production and sales manufacturers for trademark infringement, etc., to comprehensively block China Red Bull's production and business activities.
As a result, China Red Bull, a company that has accumulated tax payment of 32 billion yuan and solved the employment opportunities for more than 20,000 employees, will face the dilemma of suspending production and closing its business. The livelihoods of the millions of employees involved will pay for the profit-seeking capital.
The trademark right system is not only to protect possessive acquirers, but also use-type acquirers
In the dispute over the confirmation of the trademark right of Red Bull beverage, how should the ownership of the trademark right of Red Bull be determined?
Is the judgment standard based only on administrative registration (registration and change registration) as an objective basis, fair and reasonable?
In the author's opinion, in essence, such a determination not only violates the basic legal principles, but also violates the original intention of the establishment of the intellectual property system.
The main reasons are:
First, the legitimate basis for the existence of the trademark intellectual property system is to protect the effective and legitimate use of trademarks, and registration is not the only way to obtain trademark rights.
The purpose of the creation of the intellectual property system is to provide monopoly privileges for intangible labor results. The reason why this privilege can be obeyed is that this protection must be converted to the main body who really creates labor value.
Copyright law and patent law protect copyright or patent right in public acquisition or registration acquisition because the subject that is really worth protecting is the intellectual subject who has worked hard and painstakingly to create the result, so no matter whether it is recognized in the commercial market or not, it is applied or not. , without prejudice to the existence of its statutory rights.
However, trademarks are different. Simple trademark registration will not create any value for the society, and trademarks can only be presented through the use of their value.
In this sense, the subject worthy of protection of trademark rights should not only be limited to the subject of trademark registration (ie, the person who owns the trademark), and other subjects of fair use of trademarks should also be protected by law.
A typical example is: According to the provisions of my country's Trademark Law, even for a registered trademark, a trademark identical or similar to the registered trademark that has been used before the trademark registrant on the same commodity or similar commodities can still be used continuously.
Of course, this is not to say that the labor of the trademark designer is not worth protecting, but that for a well-known and highly valuable trademark brand, the initial inspiration of the trademark designer and the relevant legal confirmation procedures are of course important, but In comparison, its contribution to the formation of trademark value is very limited.
In other words, the registration of a trademark only confers rights to the trademark applicant, but it does not confer value to the trademark.
Labor is the real source of the value of a trademark and the legitimate basis for the protection of trademark rights.
The value of a trademark is not generated simply through registration. More importantly, it also depends on the creative management of the trademark and brand, careful maintenance and active promotion.
Therefore, when disputes arise over the acquisition of trademark rights, perhaps the operator of the trademark is the real laborer who is more worthy of protection in the trademark rights system.
That is to say, the trademark system is not only to protect the acquirer of possession, but also the acquirer of use.
It is in this sense that if a designed registered trademark is put on the shelf after registration and fails to be put into the market for effective use, operation and promotion, the value and use value of the trademark are almost negligible.
Although my country's Trademark Law adopts the mode of obtaining trademark rights by registration, it also conditionally recognizes the confrontational rights of trademark users against trademark owners, and clearly stipulates that malicious trademark registrations that are not intended for use will not be recognized.
According to this principle, the brand value of the Red Bull beverage trademark currently circulating in the Chinese market does not originate from the registration of the Red Bull trademark, but from the painstaking operation and fruitful market promotion of China Red Bull Company for decades.
According to statistics, during the legal use of the Red Bull trademark, China Red Bull spent a total of more than 18 billion yuan in advertising fees and brand promotion fees.
It can be said that without the continuous operation and promotion of the Red Bull trademark by China Red Bull, the Red Bull brand would not have the status it has today in the Chinese beverage industry.
Second, the definition of trademark ownership should comprehensively consider various formation factors of the trademark, and the original creation of the trademark should not be the only consideration for the confirmation of trademark rights.
There are two main reasons for claiming that the Chinese Red Bull trademark belongs to Thailand Tencel: First, the Red Bull trademark is a registered trademark of Thai Tencel in Thailand, so Thai Tencel is the original right subject of the Red Bull trademark; The Red Bull trademark that Silk applied for in China was registered by the State Trademark Office.
Such an understanding seems to be well-founded, but in fact it misunderstands the nature of the trademark system and can have adverse legal consequences.
It can be seen from the relevant information that the China Red Bull trademark is not a simple continuation of the Red Bull trademark registered in Thailand by Thai Tencel in the Chinese market, but a combination of the Thai Red Bull trademark, the Chinese bullfighting trademark and a variety of trademark elements. The brand new trademark is the result of the synergy between the Chinese shareholders in the joint venture company and Thailand's Tencel by taking advantage of their identity and policy advantages.
The Red Bull trademark owned by Thailand's Tencel undoubtedly made a significant contribution to the successful registration of China's Red Bull trademark, but only the application for the registration of the Red Bull trademark by Thailand's Tencel will not directly produce the effect of China's Red Bull trademark being approved for registration.
Because before Thailand Red Bull entered China, there was a registered trademark with the bullfight logo in the Chinese market. Under the circumstance that the trademark exists legally, Thailand Red Bull cannot obtain legal trademark rights in China. This is also the reason that Thailand Red Bull is entering the Chinese market. The main reason for the delay in obtaining trademark registration.
The Red Bull trademark, which has been circulating in the Chinese market for a long time, is a type of trademark with special significance. It is designed by Thai Tencel and the Chinese side to jointly design the graphics and related logos of the Red Bull trademark in Chinese and English.
Although the early Red Bull graphic and the later Red Bull trademark were provided by Thai Tencel, by constantly giving it new ideas and adding new elements in the business process, China Red Bull has transformed from a simple trademark to a new one. It is a complex combination of trademarks, and eventually it is gradually upgraded from a simple trademark to a brand that integrates many factors such as trademark, goodwill, word-of-mouth, and channels.
Although the Red Bull brand exists depending on the Red Bull trademark, its brand value is not entirely provided by the Red Bull trademark. The more important contributor should be the goodwill value of China Red Bull based on the market recognition of consumers.
Even if it is only used as a trademark, based on factors such as the public's awareness of the Red Bull trademark, the duration of the use of the trademark, the duration, degree and geographical scope of the trademark's promotion, it can be inferred that the China Red Bull trademark is already a trademark in China. Well-known trademarks that can be claimed for protection under the Trademark Law, and the protection of well-known trademarks by law is based on use rather than registration.
If the concept of obtaining trademark rights through single registration is adhered to in specific judicial precedents, it seems to clarify the ownership of the exclusive and exclusive values generated by the monopoly privilege based on trademark registration, but it deprives the actual brand value creator of the legitimate rights and interests. Not only fundamentally violates the basic principle of Marxist political economy that labor creates value, but also seriously curbs the enthusiasm of trademark users to expand the value of trademarks.
Not only goes against the original intention of the establishment of the trademark system, but also is not conducive to the sound development of the trademark system.
It is the flaws of China's trademark system itself and the mechanical protection of trademark registration in judicial practice that lead to the prevalence of malicious squatting in reality. Various abnormal phenomena such as the proliferation of useless trademarks have been repeatedly prohibited. The resulting false prosperity of registered trademarks not only fails to create more wealth for the society, but also creates information difficulties for trademark examination and increases social management costs.
Therefore, a reasonable system correction goal should be that the protection of trademarks should be based on the acquisition of registration and supplemented by the acquisition of use.
Based on this, the author believes that when judging the trademark ownership of China Red Bull, we should not simply rely on the trademark registration application, but should pay full attention to the comprehensive factors of trademark acquisition and trademark use.
Because only focusing on the application process of the Red Bull trademark and judging the attribution of the Red Bull trademark rights based on a purely technical path is not only too simple and rude, but also has adverse consequences of substantial injustice.
Enlightenment from the Red Bull trademark case: intellectual property protection is closely related to national industrial protection
Today, the Red Bull brand is not just a simple trademark, but an imprint with epochal and social significance at the spiritual level.
It has witnessed the glorious course of China's reform and opening up, and carried the dream and pursuit of reform and opening up.
First of all, since the 1980s, China has entered an era of joint ventures that promote local development by attracting investment. Among the many foreign brands, few have survived to this day.
Some of the secrets of its success are the strong radiation effect of well-known foreign brands, and some are by means of ingenious Chinese transformation, that is, implanting more Chinese elements after entering the Chinese market.
The Red Bull trademark is not only a typical representative of the Chineseization of foreign trademarks, but also the product of organic synthesis between foreign brands and Chinese traditional culture.
In a general sense, one of the key factors for a foreign brand to succeed in other countries is that the cultural connotation behind the trademark is highly compatible with the national characteristics of the country where it is located.
On the other hand, the well-known trademarks of any country are closely related to its national spirit and national culture.
Wahaha's trademark is successful because it fits the Chinese nation's optimistic outlook on life and family harmony.
The Chinese Red Bull trademark is no exception.
Although the inspiration for the Red Bull trademark was originated in Thailand by Xu Shubiao, a Chinese-Thai businessman from Hainan, whether in Thailand or other countries, it is difficult for the Red Bull trademark to generate such a strong brand value because it fails to give it enough cultural connotation.
When it entered China, because it conformed to the Chinese spirit of down-to-earth and willing to be a bull, it catered to the cultural mood of the Chinese nation, which has represented the hard work of cattle since the agricultural civilization, and was in line with the high-spirited fighting spirit of the Chinese society. Including the prosperous and arrogant spiritual pursuit of the public, it quickly won the recognition of the public. Coupled with the continuous brand promotion of China Red Bull, its annual sales have not only grown from more than 100 million yuan in the early days to Today's 20 billion yuan, and its brand awareness and brand influence are also rising rapidly.
Now, Red Bull is no longer purely a beverage, but an important part of the lifestyle of many Chinese people.
Just as Coca-Cola and McDonald's are not only necessities of life for many Americans, but also represent the spirit, culture and values of the United States to some extent, Red Bull beverages also have a deep imprint on Chinese culture.
Secondly, in terms of the significance of the era of China's Red Bull beverage trademark, it represented China's enterprising determination to dare to try and embrace the world in the 1990s. It not only witnessed the great achievements of China's reform and opening up, but also symbolized the achievements of China's reform and opening up.
The reason why the Red Bull beverage brand can achieve today's achievements is inseparable from the combination of opportunities in the era of China's reform and opening up, and the nourishment of China's huge consumer market.
The reason why China Red Bull was able to clear the market obstacles that Hainan Red Bull encountered at the beginning and achieve rapid development is precisely because the relevant state-owned enterprises have acted as the vanguard for the market development of foreign capital.
Finally, as far as the social significance of China's Red Bull beverage trademark is concerned, it represents a certain degree of social public interest, and it also represents the gradual transition of Chinese trademarks from brand reference to brand independence, and it also represents that China's trademark system should move from institutional transplantation to institutional awakening. development direction.
The development of the China Red Bull beverage trademark has already transformed China Red Bull from a privately-based joint venture into a public-based joint venture. Its huge development scale has enabled 600,000 core terminals, over 4 million sales outlets and The millions of employees involved in the entire industry chain share weal and woe, and the value of Red Bull Beverage's trademark is not just a simple matter of personal interest.
Moreover, the trademark of China Red Bull Beverage as a combined trademark is not just a reproduction and excerpt of the Thailand Red Bull trademark. It has made adaptive self-adjustment and careful local training for integrating into the Chinese market.
Based on the revelation from the encounter with China's Red Bull trademark, the trademark will also lay the foundation for China's independent reform of China's future trademark law.
It reminds us that the protection of intellectual property rights should be closely related to the protection of national industries, and that the intellectual property system is closely related to the public interests, national interests and national interests of a specific society.
Red Bull trademark ownership judgment is related to the construction of an honest market economy and society
The history of human social development is to some extent a process of seeking human civilization.
However, human beings have not reached a consensus on what is the civilization they pursue. Some people think that civilization is the cognition and persistence of freedom, equality and trustworthiness; some people think that civilization is the conscious maintenance impulse and action of justice and fairness. Some people think that civilization is the whipping of the evil and the assistance to the weak, and so on.
It seems that it is difficult for human beings to answer what civilization is, but fortunately, human beings are relatively clear about answering the question of what civilization should not pursue.
Because the civilization pursued by mankind has a certain benchmark, civilization and barbarism have diametrically opposite value orientations and social consequences. The process of civilization is the process of human beings constantly getting rid of barbarism. The greatest function of civilization is honesty and trustworthiness, sharing and win-win.
Therefore, through the benchmarking of the incident of the Red Bull trademark encounter in China, it can be seen that there are at least two points in a civilized human society that are beyond doubt.
First, the modern human society with the attributes of civilization will never allow the barbaric plundering carried out by commercial warfare, nor condone the unfair competition carried out by relying on the suit of litigation. In other words, the capital operation of a civilized society cannot destroy trust and morality.
Although it is difficult to expect capitalists to have conscience and gratitude in the face of capital’s pursuit of profit, the construction of a good business environment must at least be based on the integrity of capitalists.
The Chinese Trademark Law also declares in black and white that the registration and use of trademarks should be based on the principle of good faith. Therefore, in the China Red Bull trademark battle, the judiciary should not encourage perfidy.
If it is recognized and encouraged, then the future of the Chinese market will surely have more and more "Red Bull trademarks" falling down.
Second, what a civilized society needs is not just order, nor should it just stop at order, but also an order based on good faith. A civilized society does not only need the rule of law, but good law and good governance.
In other words, although the rule of law itself does not have a subjective color as a means, a civilized society takes a good rule of law as its goal. Therefore, the rule of law must be conducive to social progress, and this should be the supporting tool for a civilized society.
Therefore, judicial adjudication, as the last line of defense for good law and good governance, must guard and ensure the good implementation of the social effect, social influence and social orientation of the operation of the rule of law.
Therefore, its application to the legal system should not only fall into a superficial cycle of technical inclusion, but should go beyond the law to apply the law, otherwise the rigid application of mechanical provisions may prevent human beings from diligently, diligently, and persistently with conscience.
The construction of a socialist market economy with Chinese characteristics should not encourage the immorality of capital and the unkindness of the rule of law. The operation of capital should be carried out in a business environment with socialist values such as integrity, and the practice of the rule of law should also be based on human civilization. Stick to the bottom line of fairness and justice.
About the Author:
Zhao Wanyi: Professor of Southwest University of Political Science and Law, Deputy Director of Academic Committee of China Law Society Civil Law Research Society, Vice President of China Law Society Business Law Research Society, Vice President of China Law Society Law Journal Research Society
Su Zhimeng: PhD candidate in Civil and Commercial Law, Southwest University of Political Science and Law