Is it infringement to add Moutai wine to coffee hot pot without authorization? 【 After the "sauce latte" was out of the circle, many catering companies began to "rub" the heat】
□ Zhang Shoukun, reporter of this newspaper
"The sales volume of a single product exceeded 542.1 million cups on the first day, and the sales exceeded <> million yuan!"
On the morning of September 9, Luckin officially announced the results of the joint product "Sauce Latte" with Kweichow Moutai, and people also felt the charm and status of the "new top" again.
As the attention and discussion continue to rise, many catering companies have also begun to "rub" the popularity of Moutai wine and join this traffic carnival.
The reporter of "Rule of Law Daily" noticed that on the same day that "Sauce Citron Tai" was listed, a hot pot in Changsha, Hunan Province added a new "Sauce Lemon Maotai Hot Pot" priced at 128 yuan / serving, announcing that each hot pot contains 8ml of Kweichow Moutai wine, and will be added in person on the spot, fidelity.
Is such a high-profile launch of Moutai hotpot authorized by Moutai? The store staff said in an interview that they were only responsible for execution, and he did not know whether there was authorization from Moutai.
In addition to Moutai hot pot, "Moutai + coffee" and "Moutai + tea" are also popular choices in the current catering industry.
It is understood that as early as July this year, a tea shop in Guizhou used 7 degrees Feitian Moutai as raw materials to produce a version of "Guiyang Iced Tea Sauce Fragrant". In the promotion, the brand introduction is to divide 53ml Feitian Maotai into about 500 small cups, and the single-cup version uses 55 small cup mixed with drinks, and the product price is VIP1 yuan / cup, and ordinary customers 68 yuan / cup.
However, a hot search about #Moutai staff: Adding Moutai to coffee without authorization is infringement# broke this carnival: Moutai staff recently said in an interview that coffee shops adding Moutai wine to drinks without authorization, even if they do not use this as a selling point to advertise, is actually an infringement.
Many netizens wondered, "Which law says that after buying something, mixing with others is infringement?" "What about selling coffee and adding milk, is it unauthorized and infringing?"
According to public reports, in 2022, the Xintian Cosmetics Business Department of Wuxi City, Jiangsu Province, made its own "Moutai Coffee" without obtaining trademark authorization, and privately set up publicity boards such as "Exclusive Special Moutai Coffee 53°" and "Coffee Ceiling Jiu No. 53° Feitian Maoca" in the store without obtaining Moutai authorization. At the same time, promote the Moutai coffee products it sells on social software.
Up to the time of the case, the parties had sold a total of 53 cups of the nominal "Jiu No. 21° Feitian Cafe/Latte Raw Coconut Cafe", with an illegal business turnover of 2728,7 yuan. In the end, the illegal gains were confiscated and fined a total of more than <>,<> yuan.
Wuxi's Donggang Miyan Western Restaurant was also fined 2022 yuan by the Wuxi Xishan District Market Supervision Administration in 500 for storing "Moutai Latte" coffee cups in the bar shelves and lockers of its business premises, and the outer packaging was marked with "Moutai Latte" and icons, but could not provide relevant trademark authorization.
Without the authorization of Moutai, what actions of merchants may constitute infringement?
Faye Wong, a senior partner at Beijing Kyoto Law Firm and director of the China Intellectual Property Research Association, told reporters: "Exhaustion of trademark rights refers to the situation where goods that have been licensed by the trademark owner or otherwise legally placed on the market can be resold or otherwise provided to the public after purchase, including the use of trademarks in advertising for this purpose." ”
"However, in several cases, infringement may still be constituted." Faye Wong said that the Trademark Law stipulates that trademark users should be responsible for the quality of the goods for which they use trademarks, that is, trademark rights holders have the obligation to ensure quality. Due to its high requirements for storage conditions, alcoholic products are easy to lead to changes in the quality of the goods themselves, such as taste and concentration, during their packaging or processing. Such a change may trigger a quality assurance obligation clause for trademark owners. If Moutai liquor is added to the drink for sale without authorization, the relevant public may be dissatisfied with the taste, taste, price, service environment, etc. of the goods and services received, and the Moutai brand may have a negative evaluation of the Moutai brand, damage the reputation of the Moutai brand, and the principle of exhaustion of rights is not applied, which may constitute trademark infringement.
"If the user uses his trademark or trade name together with the Moutai trademark, even if it does not cause the relevant public to mistakenly believe that the product (beverage or hot pot) is produced by Moutai, it is very easy for the relevant public to mistakenly believe that there is some relationship between the user and Moutai. There are many factors for the relevant public to choose the goods or services because of the popularity of Moutai liquor or the goodwill of Moutai Company, and the user's promotion of his use of Moutai as raw material may be determined to be commercial attachment, mislead the relevant public, and profit from it, which constitutes trademark infringement. Faye Wong said.
In Faye Wong's view, if the difference between the publicity and packaging behavior of the user and the approved scope of the Moutai trademark, as well as the design concept and expression form of the goods, the unique correspondence between the Moutai trademark and the goods and the right holder is reduced, resulting in derogation of the commercial taste and goodwill carefully created by the Moutai platform, which may be found to constitute trademark infringement. If it is determined that trademark infringement occurs, the perpetrator may bear legal liabilities such as stopping the infringement, compensating for losses, and eliminating the impact. Among them, the standard of compensation amount can be calculated based on the profits of the infringer or the losses of the right holder, and according to the different brand value of the right holder, the infringement damages may be higher than the amount of profits made by the infringer.
The reporter noticed that some merchants just told customers that they could buy Moutai (by cup or bottle) from the store and added to the hot pot, so that it tasted special, but whether to choose to add it was up to the customer to decide.
In this regard, Xu Yaoming, a researcher at the Intellectual Property Research Center of the Central University of Finance and Economics, believes that consumers have the right to know and choose, and whether to add Moutai wine depends entirely on the independent choice of consumers. Such sales are not trademark uses and generally do not constitute infringement.
According to Chen Yao, a lawyer at Beijing DHH (Shanghai) Law Firm, the use of trademarks refers to the use of trademarks on goods, commodity packaging or containers and commodity transaction documents, or the use of trademarks in advertising, exhibitions and other commercial activities to identify the source of goods. If Moutai wine is only used as raw material and added to existing food products as a mash-and-match, and the merchant does not use "Moutai" as a trademark in the sense of trademark law when promoting it, it does not constitute infringement.
In the investigation, the reporter found that it is very common to add other goods as one of the raw materials to their own products, but do not indicate the brand, such as merchants launched "sauce fragrant hot pot" and "sauce fragrant tea" and so on without saying that the liquor brand mix-and-match sales products; In cake shops, it is also common to use various brands of biscuits as a top-up decoration or to make cake fillings with cookie crumbles.
Faye Wong believes that if the use of other brands of goods is legitimate and reasonable according to the use of the goods themselves, the principle of exhaustion of rights applies, and there is no need to inform the right holder, for example, restaurants using various finished seasonings to make dishes obviously do not need the permission of the seasoning manufacturer. However, for the use of the brand effect of the commodity beyond the use of the commodity itself to profit for one's own products, the permission of the right holder is often required.
The reporter noticed that in order to market their own products, some merchants sold goods of other brands as giveaways.
"Without derogating or diluting the goodwill of the gifted goods, it does not constitute trademark infringement." Derogation refers to situations such as reducing the value proposition of the trademark itself and reducing its recognition among the target audience. Dilution mainly refers to the reduction of the close or unique correspondence between the trademark and the goods using the trademark. A case-by-case analysis is required. Faye Wong said.
Xu Yaoming believes that tie-in gifts are a kind of commodity promotion strategy, the purpose is to achieve commercial profits through special business means, and this kind of tie-in gift is essentially a special sales behavior. However, if the gift is counterfeit or inferior goods that infringe the exclusive right to use a registered trademark, the merchant still needs to bear the corresponding infringement liability.
In Chen Yao's view, the boundary of infringement of the addition and mixing of multiple goods lies in whether the merchant has obtained the brand authorization of the partner, and whether the acts involved meet the constituent elements of using the partner's trademark as a trademark in the sense of trademark law. If the merchant does not obtain the authorization of the partner and uses the partner's trademark as a trademark within the meaning of trademark law, it constitutes infringement.
"In order to market and publicize their own goods or services, when choosing cooperation models such as product addition, mixed and matched sales, and gifts, merchants must not only obtain authorization from brand partners, but also pay attention to whether the goods or services added, bundled, or given away are infringing." Chen Yao reminded.