Sentencing in court!

On January 13, 2022, the Higher People's Court of Sichuan Province held a public hearing on the trademark the appellant Wenjiang Wu Apo Qinghuajiaoyu Hotpot Restaurant and the appellee Shanghai Wancuitang Catering Management Co.
, Ltd.
Second-instance judgment: The first-instance judgment is revoked, all the claims of Shanghai Wancuitang Catering Management Co.
, Ltd.
are dismissed, and the first-instance and second-instance case acceptance fees are borne .

 

Court hearing to find out

 

On April 6, 2016, Shanghai Wancuitang Catering Management Co.
, Ltd.
acquired the registered trademark No.
12046607.
The content of the trademark is the words "green pepper" arranged from top to bottom
.
On September 7, 2016, Shanghai Wancuitang Catering Management Co.
, Ltd.
registered and obtained 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, Shanghai Wancuitang Catering Management Co.
, Ltd.
registered and obtained the registered trademark No.
23986528.
The content of the trademark is the words "green pepper" arranged horizontally, with a cloud-shaped pepper 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
.

 

　　On May 21, 2021, Shanghai Wancuitang Catering Management Co.
, Ltd.
found that Wenjiang Wu Apo Qing Sichuan Pepper Fish Hot Pot Restaurant used the words "Zou Yu Jiang Qing Sichuan Pepper Fish Hot Pot" on the store sign
.
On October 21, 2021, Zou Liyong, the operator of Wenjiang Wu A Po Qing Sichuan Pepper Fish Hotpot Restaurant, registered and obtained the registered trademark No.
54776844.
The content of the trademark is the words "Zou Yu Jiang" arranged horizontally.
The trademark is valid until October 20, 2031.
The registrant is Zou Liyong, the approved service item is Category 43, including restaurants, mobile food supply,
etc.

 

　　The court held that

 

　　1.
Legally registered trademarks are protected by law
.
Shanghai Wancuitang Catering Management Co.
, Ltd.
is the owner of the exclusive right to the registered trademark involved in the case.
The registered trademarks involved in the case are all within the validity period.
The legal rights of Shanghai Wancuitang Catering Management Co.
, Ltd.
shall be protected by law
.
Without the permission of the right holder, others may not use it illegally
.

 

　　2.
The scope of protection of the exclusive right to a registered trademark is consistent with its distinctiveness
.
The role of a trademark is to identify the source of goods and services, so it should be distinctive
.
Article 48 of the "Trademark Law of the People's Republic of China" stipulates that the use of a trademark as mentioned in this law refers to the use of a trademark on commodities, commodity packaging or containers, and commercial transaction documents, or the use of trademarks in advertising, exhibition and In other commercial activities, the act of identifying the source of goods
.
Generally, the distinctiveness of a trademark is positively correlated with the identification function of the trademark.
The stronger the distinctiveness of the trademark, the higher the effect of identifying the source of goods or services, the greater the possibility of the relevant public being confused about the source, and the greater the protection scope of the exclusive right to use a trademark.
On the other hand, a trademark with relatively weak distinctiveness has a low role in identifying the source of goods or services, the possibility of confusion among the relevant public is small, and the protection scope of the exclusive right to use a trademark is relatively small
.
Green prickly ash is the name of a plant fruit and the seasoning made from it.
It has a long history of planting in the Sichuan-Chongqing region.
It has been widely known as a seasoning for Sichuan cuisine, and has become an indispensable element of Sichuan cuisine and a unique mark of Sichuan cuisine
.
Shanghai Wancuitang Catering Management Co.
, Ltd.
applied for the registration of "Qinghuajiao" in the 43rd category of services, which can be considered to have a certain significance and can play a role in distinguishing service sources
.
However, due to the natural connection between catering services and dish seasonings, the distinction between the service mark logo and the special dishes with the words green peppercorns is subtle and confusing, which greatly reduces the distinctiveness of their registered trademarks, and it is almost difficult to pass The role of the trademark to identify the source of the service
.
Shanghai Wancuitang Catering Management Co.
, Ltd.
used the "green pepper casserole fish & signature green pepper flavor" on its official website, in fact, it also emphasized that "green pepper" is the taste and characteristics of its dishes, and the evidence it submitted in the lawsuit It also cannot be proved that the registered trademark involved has achieved a high degree of recognition through use, and it can be clearly distinguished from the "green pepper" as a seasoning
.
The first paragraph of Article 59 of the "Trademark Law of the People's Republic of China" stipulates that the general name, figure, model of the product contained in the registered trademark, or directly indicates the quality, main raw materials, functions, uses, weight, quantity and quality of the product.
The owner of the exclusive right to use the registered trademark has no right to prohibit others from using it properly. .
After the registered trademark involved is authorized, its weak distinctiveness determines that its protection scope should not be too wide, otherwise it will hinder the legitimate use of other market players and affect the market order of fair competition
.

 

　　3.
The use of the word "green pepper" by Wenjiang Wu Apo Green Pepper Fish Hotpot Restaurant is a legitimate use
.
Item 2, Article 57 of the "Trademark Law of the People's Republic of China" stipulates that, without the permission of the trademark registrant, a trademark similar to its registered trademark is used on the same commodity, or the same or the same registered trademark is used on similar commodities.
Similar trademarks, which are likely to cause confusion, constitute an infringement of the exclusive right to use a registered trademark
.
The registered trademarks of Shanghai Wancuitang Catering Management Co.
, Ltd.
are the characters of "green pepper" arranged in vertical rows, and the characters and patterns of "green pepper"
.
The sign on the shop sign of Wenjiang Wu Apo’s Green Pepper Fish Hotpot Restaurant is “Zou Yujiang Blue Pepper Fish Hotpot”, although the sign of “Green Pepper Fish” contained in the shop sign is the same as that contained in the registered trademark of Shanghai Wancuitang Catering Management Co.
, Ltd.
The text and call of "Qinghuajiao" are the same, but Wenjiang Wupo Qinghuajiao Fish Hotpot Restaurant has attached its own registered trademark "Zou Yujiang" logo in front of the word "Qinghuajiao", followed by the three words "fish hotpot", and "Qinghuajiao" is the same as "Fish Hot Pot" is consistent in font, font size, color, height, word spacing, etc.
It is not used in a stand-alone manner, but is used together with "Zou Yu Jiang" and "Fish Hot Pot".
There are significant differences in registered trademarks
.
Wenjiang Wu Apo Qing Sichuan Pepper Fish Hotpot Restaurant uses "Zou Yujiao Qing Sichuan Pepper Fish Hot Pot" on the store sign.
"Blue Sichuan pepper" is an important seasoning for fish hot pot.
The signature dish provided to consumers is green pepper fish hotpot, and the "green peppercorn" contained in the logo is an objective description of the green pepper seasoning contained in the fish hotpot, which is a special dish provided by them, and is not a trademark use
.
Wenjiang Wu Apo Qinghuajiaoyu Hotpot Restaurant has registered the "Zouyujiao" trademark to sell green peppercorn-flavored hotpot.
It has no intention of attaching the registered trademark involved, and will not cause misunderstanding and confusion among the relevant public.
Its use does not constitute infringement and should not be held responsible.
tort liability
.
It is a common practice in the catering industry to mark the name of the 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 of the store or the use of the word "green pepper" on the menu, the relevant public are accustomed to it.
Understand 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 Sichuan Higher People's Court made the above judgment in accordance with the law
.