■ "Li Bai and Xue Tao have become the names of teahouses and restaurants, which is a bit inappropriate." Recently, some Chengdu residents saw shops with signs such as "Xue Tao Tea House", "Xue Tao Fish Fresh Restaurant" and "Li Bai Dian Sang Zi Rice Noodles" on the street. I later reflected that it was too arbitrary to use the names of historical celebrities for restaurant names.
■ A reporter from Chengdu Business Daily-Red Star News later found out that the law does not expressly prohibit the names of historical celebrities from being used for trademark registration.
All over the country, many historical celebrities have been squatted with trademarks, and a total of 1,258 trademark applications related to "Li Bai" were retrieved.
■ Is the name of a historical celebrity eligible for trademark registration?
What are the specifications for the scope of use of trademarks?
Is it infringing?
Chengdu Business Daily-Red Star News reporters conducted an investigation to understand this.
Historical celebrities have become the names of teahouses and restaurants
According to the guidance of citizens, the reporter came to the intersection of Jiuyan Bridge and Wangjiang Road, and found a signboard with the words "Xue Tao Tea Art Building" and "Xue Tao Fish Fresh Museum" hanging on a commercial building. There is a plaque with the word "Xue Tao".
The interior of the store is decorated with antique flavors and is divided into a tea art area and a dining area. You can overlook the Jinjiang River through the windows, and the eyes are full of green. About 800 meters away is the cemetery of the Tang Dynasty poet Xue Tao and the location of the Xue Tao Memorial Hall.
It can be seen from the advertisements placed by the merchant that the store also has branches under the name of "Xue Tao" in Sichuan Division, Sansheng Township and other places.
In Yingjia Plaza, Chunxi Road, a shop called "Li Baidian Saozi Rice Noodles" is very conspicuous. The three characters "Li Baidian" in the shop sign are in the center, and the "Saozi Rice Noodles" are smaller in size at the bottom.
It is understood that the store is a chain brand with many branches.
Advertisements on its website also feature cartoon heads of ancient figures in Tang Dynasty-style hats eating rice noodles.
"The first impression is not to think of the poet Li Bai, but after combining the cartoon characters, I feel connected with Li Bai." A customer said that the most important thing in catering is the food itself. It's a bit of a gimmick.
Merchant response: registered trademark
"We have a trademark and authorized it." On October 18, the reporter contacted the staff of Chengdu Xue Tao Catering Co., Ltd. The staff said that the company's Xue Tao (Jiuyanqiao store), Xue Tao (Chuanshi store), Xue Tao's yard and others are all operated by them, and the store name "Xue Tao" has been registered as a trademark many years ago.
Why use "Xue Tao" as the store name?
"At that time, I also wanted to promote Xue Tao's culture." The staff told reporters that Xue Tao is a historical celebrity in Chengdu, but her publicity and popularity are much smaller than those of Li Bai and Du Fu. The location of the store is just near Xue Tao's tomb. The owner grew up nearby, so he thought of using the name of Xue Tao as a business card for restaurants in Chengdu.
After obtaining the trademark certificate according to law, it has been in use since 2014.
During use, some customers did not know who Xue Tao was, and mistakenly thought Xue Tao was the name of the boss. However, they also encountered complaints from citizens who questioned their use of the names of historical celebrities. The company also defended this and presented relevant certificates. .
At present, the company has registered the trademark "Xue Tao" mainly in the business scope of catering, wine, tea, utensils, etc., and it has been in normal use.
"We have applied for registration of the trademark." The relevant staff of Li Baidian rice noodles also gave a similar answer, saying that the "Li Baidian" on the shop sign applied for the registration of the trademark corresponding to the business scope and obtained authorization.
The staff explained that the brand mainly deals in rice noodles. Mianyang’s rice noodles are very famous. Li Bai is from Jiangyou in Mianyang. Yunnan’s rice noodles are also famous. Dian is the abbreviation of Yunnan. This name is only used because the person's name is related to the place name, and the place name is related to the food and beverage category.
"Our trademark application has been filed, and it is legal and compliant from a legal perspective."
The reporter inquired on the website of the Trademark Office of the State Intellectual Property Office that the brand name "Li Baidian" was applied for registration by Chengdu Maodaxian Catering Management Co., Ltd. in 2021, and obtained trademarks in 35 categories of advertising sales and 30 categories of convenience foods. exclusive rights, while trademark applications in the 43 categories of food and beverage accommodation are shown to be in trademark opposition.
Lawyer Analysis
Not expressly prohibited by law, but strictly censored
Is the name of a historical celebrity eligible for trademark registration?
What are the specifications for the scope of use of trademarks?
Is it infringing?
In this regard, the reporter consulted lawyers related to intellectual property law.
"The Trademark Law does not expressly prohibit the trademark registration and use of the names of historical celebrities." Zhou Haiyang, senior partner of Sichuan Discovery Law Firm and deputy director of the Intellectual Property Committee of Sichuan Lawyers Association, said that the Trademark Law of the People's Republic of China (2019 Article 10, Article 11 and Article 12 of the “Amendment” stipulate the scope of use and registration as a trademark, and the names of historical celebrities are not included.
That is to say, the names of historical celebrities can apply for trademark registration and can also be authorized, but whether to obtain authorization is judged by professional institutions.
After the trademark is authorized, the exclusive owner of the trademark has obtained the exclusive right to use the trademark, and can use, license and transfer the goods or services it produces, manufactures, processes, selects or distributes according to law.
After the registration of the name trademark of historical celebrity, is there any limit to the scope of use?
"No." Zhou Haiyang said that my country's trademark registration is divided into 45 categories. The names of historical celebrities do not involve related industries, nor do they involve special terms. Therefore, as long as they are used legally and reasonably, there are no restrictions.
In theory, there may be situations similar to Li Bai Jewelry and Dongpo Restaurant.
However, Zhou Haiyang added that relevant departments have also further strengthened the examination and trial of celebrity name trademarks, and it is now more difficult to obtain authorization for registered trademarks with celebrity names.
Zhou Yan, a lawyer from Tahota Law Firm, said that my country's "Trademark Law" does not prohibit the registration of names of historical celebrities as trademarks, so the use of registered trademarks with names of historical celebrities does not infringe.
However, if the trademark is related to the name of a historical celebrity when it is used commercially, it is enough to cause consumers to associate with it, and mistakenly believe that the registrant or user of these trademarks has some relationship with the celebrity, thereby causing damage; or When vilification, malicious misinterpretation, insults, etc. hurt national sentiments, may affect public order, good customs, and have adverse effects on society, the state can use public power to restrain them.
If it is a contemporary public figure and celebrity, it can protect its rights through the law. For example, Gu Ailing’s name and trademark have been squatted in large numbers, which has a negative impact on the relevant stakeholders. Gu Ailing can defend their rights.
In addition, trademark application is a voluntary act, and there is no prohibition on the scope and category of historical celebrity name applications.
Zhou Yan believes that historical and cultural celebrities are the precious wealth of a nation, and we need to carry forward and inherit them. For some abuses of historical celebrities' names, or use them for illegitimate interests or malicious misinterpretation, further guidance and management are needed.
more news
According to media reports, many historical celebrities have been squatted with trademarks in recent years, such as Li Bai, Wang Xizhi, Han Gaozu, Wang Yangming, Zhou Yu, Cao Cao, etc. are all "sweet pastries" of trademark squatting, resulting in "Qu Yuan" becoming a pig Feed, "Han Gaozu" reduced to cakes and so on.
The reporter searched the website of the Trademark Office of the State Intellectual Property Office for the keyword "Li Bai", which showed that 1,258 trademarks were retrieved, including Li Bai's drunk love, Li Bai's shoes washing, Li Bai's poems, Li Bai's fat intestines and other trademark names, some of which have been Registration, some pending review, some rejected.
In April 2019, the Standing Committee of the National People's Congress decided to revise the Trademark Law, adding the provision that "applications for malicious trademark registration not for the purpose of use shall be rejected" in the first paragraph of Article 4.
In addition, the Trademark Office of the State Intellectual Property Office has formulated the "Guidelines for Trademark Examination and Trial", which clarifies the examination and trial standards for "bad faith trademark registration applications that are not intended for use".
The Trademark Office of the State Intellectual Property Office explained that there is no definition of "bad faith" in the legal provisions of my country's "Trademark Law".
It is generally believed that malicious registration of trademarks can be roughly divided into two types according to the interests infringed. The trademark registration application behavior with the core features of others' goodwill, civil rights and legitimate rights and interests; the other type is the behavior of "bad faith application for trademark registration not for the purpose of use", that is, "batch application" and "occupation of resources" to disrupt or impact The trademark registration application behavior with trademark registration and management order as the core feature.
Chengdu Business Daily-Red Star News reporter Zhang Zhaoting
(Chengdu Commercial Daily)