[Explanation] Recently, there have been media reports that the merchants of dozens of snack bars in Henan stated that they were sued by the Tongguan Roujiamo Association of Shaanxi Province for their meat dumplings with the words "Tongguan" and demanded compensation of 3 to 5 from them. If they want to continue to use the "Tongguan Roujiamo" trademark, they need to pay 99,800 yuan.
Merchants said that there are hundreds of snack bars across the country that have similar experiences with them.
According to public information from the Trademark Office of the State Intellectual Property Office, the Tongguan Roujiamo Association applied for the registration of the "Tongguan Roujiamo" trademark in April 2014, and its exclusive right period is from December 14, 2015 to December 13, 2025. , The type of trademark is a collective trademark.
Zhang Huizi, a lawyer from Beijing Jincheng Tongda (Xi'an) Law Firm, said that if the trademark is indeed a collective trademark protected by the Trademark Law, then there is a substantial infringement of the trademark by an infringer, and the rights can be protected reasonably.
However, the association's high membership fees and a large number of lawsuits still need to be considered comprehensively.
[Concurrent] Zhang Huizi, lawyer of Beijing Jincheng Tongda (Xi'an) Law Firm
So in this case, it achieves its purpose by suing for infringement, and it may even entrust a private company to operate the trademark, and then charge a high membership fee through the private company.
As a mediation mechanism, we believe that in fact, it may already have a legal basis that is out of the protection of trademark infringement. It may be more suspected of being involved, for example, the collective trademark with a public interest attribute. Seeking some improper personal gain or seeking some commercial monopoly for oneself is similar to this kind of behavior.
[Explanation] The reporter visited a number of snack bars in Xi'an with the name "Tongguan Roujiamo". Many shopkeepers expressed that they did not understand the association's behavior of charging high membership fees.
If the other party seeks compensation, the matter will be resolved through legal channels.
[Concurrent] He Shixi, owner of a Tongguan Roujiamo shop in Xi'an
Hot pot in Chongqing, hot dry noodle in Wuhan, roast duck in Beijing, smelly mandarin fish in Huangshan, etc.
Didn't that disrupt all the cusp of Chinese culture?
Can only one association control this?
I think this is unreasonable.
[Explanation] Attorney Zhang Huizi told reporters that according to Article 59 of the "Trademark Law": "The owner of the exclusive right to the registered trademark does not have the right to prohibit others from using the generic name of this product or the place name contained in the registered trademark." Therefore, "Roujiamo" is a generic name in the food industry, and "tongguan" is a place name. The trademark owner has no right to prohibit others from using it properly.
[Concurrent] Zhang Huizi, lawyer of Beijing Jincheng Tongda (Xi'an) Law Firm
In terms of nature or in terms of legal provisions, whether the accused infringers will eventually constitute infringement is not necessarily a definite result, that is, it is also possible that the court may finally determine that it is a legitimate use situation. Will not constitute infringement and so on.
We suggest that they still consult a professional lawyer, and then reasonably judge the nature of their use of the trademark, and at the same time respond to the suit with a positive attitude.
[Explanation] Attorney Zhang Huizi said that for companies or associations that may have undesirable purposes, using authorization to do some unreasonable competition methods similar to industry monopolies, or to request high membership fees, the parties can complain to the industry and commerce department, or to the judicial The administrative agency reports and other methods, through the mediation of the administrative agency to intervene in the handling of the matter, and through the collective force and the help of the society, to properly handle similar incidents.
Zhang Yichen's party field reports from Xi'an
Editor in charge: [Wang Kai]