Dozens of restaurants in Sichuan were sued, only because the name of the store with "green peppercorns"

Dozens of restaurants in Sichuan were sued, only because the name of the store with "green peppercorns". Recently, a netizen posted on the Internet that because the signboard has the words "green peppercorns", a number of restaurants in Sichuan have been sued. Dozens of restaurants in Sichuan were sued just because the name of the store with "green pepper".

dozens of restaurants in sichuan defendant, only because the name of the store with "green pepper" 1

Recently, a netizen posted on the Internet that because the signboard has "green pepper" a few words, sichuan restaurants by a Shanghai catering company to sue. In the post released by the netizen shows that Shanghai, a company named: Shanghai Wan Cui Tang Catering Management Limited, in November, December sued dozens of restaurants in Sichuan Province.

Why is the company in Shanghai to sue the restaurant in Sichuan Province? Originally, Shanghai Wan Cui Tang Catering Management Co., Ltd. obtained the "green pepper" trademark in 2014. In the opinion of Shanghai Wan Cui Tang Catering Management Co., Ltd, some Sichuan restaurants in the case of unauthorized, unauthorized use of the trademark containing the three words "green pepper" for the operation of the store's head, plaque, billboards, menu, store background wall, etc., infringing on its trademark.

Is the use of the trademark containing the three words "green pepper" suspected of infringement? Shanghai Wan Cui Tang Catering Management Co., Ltd. behavior is suspected of malicious litigation? In the face of prosecution, Sichuan restaurant and how to deal with?December 23, Sichuan Online reporter interviewed on this.

The accused enterprise: feel very wronged

I did not think that "green pepper" can be registered as a trademark

"When I received the phone call from the court, my first feeling was shock. , my first feeling is shock, the second feeling is wronged." Guang'an District, Guang'an City, Yu Xuan green peppercorns fish restaurant responsible person Zhu Paixuan told Sichuan Online reporter, Shanghai Wan Cui Tang Catering Management Co. The case was heard on November 25, 2021, and the case of Shanghai Wan Cui Tang Catering Management Co., Ltd. against Yu Xuan Green Pepper Fish Farm has become the first case of its trademark disputes to be heard in Sichuan.

As a native of Sichuan, Zhu Paixuan said, green peppercorns as a plant, seasoning in Sichuan household name. Suddenly a Shanghai business to the court, said the Sichuan store with "green pepper" store name infringement, they are completely unexpected. What is even more unexpected is that "green peppercorns" can actually be registered as a trademark.

The information shows that Shanghai Wan Cui Tang Catering Management Co., Ltd. of green pepper trademarks have more than one group: "green pepper" pattern trademark; green pepper casserole fish and its English labeling. Sichuan Online reporter checked the State Intellectual Property Office Trademark Office website and found that the registration time of the above trademarks from 2013, every once in a while will be registered by Shanghai Wan Cui Tang Catering Management Co. According to the official website of the Trademark Office of the State Intellectual Property Office, as of July 21, 2021, Shanghai Wan Cui Tang Catering Management Co., Ltd. has registered 97 trademarks, many of which contain the words "green pepper".

A civil ruling from the Guang'an Intermediate People's Court shows that on November 26, 2021, Shanghai Wan Cui Tang Catering Management Co. withdrew its lawsuit to the court. "In my opinion, it is Shanghai Wan Cui Tang Catering Management Co. that has a weak heart." Zhu Paixuan told Sichuan Online reporter, their own industrial and commercial business license on the use of the trademark time is March 29, 2011, more than two years earlier than that company in Shanghai, the reason is certainly on their side. "Although the Shanghai company withdrew the lawsuit, but their behavior is unethical." Zhu Paixuan said.

Interviewee photo

Also sued was Tangji Qinghua Hot Pot Restaurant in Qingyang District, Chengdu.

On December 6, 2021, the Intermediate People's Court of Chengdu City filed a case against Shanghai Wan Cui Tang Catering Management Co. v. Tang Ji Qing Hua Hot Pot Restaurant of Qingyang District, Chengdu City, in a dispute over infringement of trademark rights. "At present, the trial time of our case has not yet been finalized." Tang Hua Chun, Tang Ji Qing Hua Hot Pot Shop, told reporters that she felt wronged. In her opinion, the name of the restaurant only contains the word "green flower". Green pepper" is a generic name, is a specialty of Sichuan and Chongqing. Moreover, her family sells hot pot containing green peppercorns, which is a kind of dish. "Just like back to the pot meat is a dish, all the stores are selling, can not say that there are back to the pot meat business are infringing ah?"

In response to this matter, Shanghai Wan Cui Tang Catering Management Co., Ltd. responded in an interview with the media: its trademark is reasonable and legitimate, someone infringes on the law, they naturally have to take relevant countermeasures.

This is puzzled and angry many Sichuan netizens. Netizen @ Donald Duck loves to eat fish said, green pepper has been a specialty of Sichuan, Sichuan people eat the necessary spices. If the three words "green pepper" are registered by the Shanghai business, then as Sichuan people go to restaurants to eat green pepper is not to support the business ` illegal behavior? In addition, if the three words "green pepper" can be registered as a trademark, then in the future, Sichuan's ma po tofu, back to the pot meat and other well-known dish name is not to be taken by others to register?

Legal experts: Shanghai company suspected of malicious prosecution

Sichuan business can be used to apply for a joint revocation of the "green pepper" trademark and other ways to protect their rights

Eye of the sky website shows that the Shanghai Wan Cui Tang Food and Beverage Management Co. June 24, 2013, the registered capital of 562,493,000 yuan. In Tianyecha website, Sichuan Online reporter also found that Shanghai Wan Cui Tang Catering Management Company Limited faces 62 pieces of its own risk information. Among them, the lawsuit information is 16, many of which are infringement of trademark disputes.

Image source: Tianyecha

"The behavior of this company in Shanghai may be suspected of malicious prosecution." For the above incident, Wang Jianping, a professor at Sichuan University Law School, introduced that the merchant may have taken advantage of the loophole of negative examination when applying for a trademark. The so-called negative examination means that after a merchant files a trademark application, the Trademark Office of the State Intellectual Property Office (SIPO) will publicize it through its website and paper version of the magazine. If no one files an objection, it means that the application is approved. However, since the general merchants will not deliberately pay attention to the relevant circulars and information of the Trademark Office of the State Intellectual Property Office, very few objections are filed.

"In this case, the Shanghai merchant may have taken advantage of the aforementioned loophole to obtain trademark registration." Wang Jianping said, Shanghai merchants after obtaining trademark registration, widely to all over the word containing "green pepper" merchants to file a trademark lawsuit, there is a suspicion of malicious prosecution.

On the "green pepper" three words can be registered as a trademark, Wang Jianping think it can be worth exploring. In Wang Jianping, according to China's "Trademark Law", pepper, ma po tofu, these are generic names, can not be registered as a trademark. However, like "green pepper" such a name, "pepper" in front of the addition of a "green", may have certain characteristics, in order to obtain the authorization of the trademark.

China's Trademark Law, Article 11 provides that the following signs shall not be registered as trademarks: (a) only the common name of the goods, graphics, models; (b) only directly expresses the quality of the goods, the main raw materials, functions, uses, weight, quantity and other characteristics; (c) other lack of distinctive features. The signs listed in the preceding paragraph after the use of distinctive features, and easy to identify, can be registered as a trademark.

In this regard, Beijing Tongshang (Chengdu) Law Firm partner Chen Jun that, "green pepper" as a raw material, generally not as a trademark, unless the applicant after the use of distinctive features, in order to facilitate the identification of can be registered as a trademark.

"However, it is worth noting that, in Shanghai Wan Cui Tang Catering Management Co., Ltd. has been used before the application of the trademark restaurant can be used legally within the original scope. At the same time, because 'green pepper' is a raw material, Shanghai Wan Cui Tang Catering Management Co. has no right to prohibit others from using it legitimately." Chen Jun said, in addition, if Shanghai Wan Cui Tang Catering Management Co., Ltd. registered "green peppercorns" is not for the purpose of use, but maliciously registered trademark, then any individual or unit can request the Trademark Review and Adjudication Board to declare the registered trademark is invalid.

After being sued, how can Sichuan merchants protect their legal rights?

Wang Jianping suggests two ways to defend your rights. First of all, the province of Sichuan trademarks containing the word "green pepper" business can be united to the State Intellectual Property Office Trademark Office to object to the application for the revocation of the word "green pepper" trademark. It is understood that there are 18 restaurants in Sichuan has built a WeChat group, ready to jointly defend rights.

In addition to joint rights, Wang Jianping also gave advice. "Secondly, the merchants can also join together to choose the way of judicial litigation, suing Shanghai Wan Cui Tang Catering Management Co. violated the Sichuan merchants' prior rights." The so-called prior right, refers to whether it is a brand or a trademark, as long as I use it first, I have acquired a right, this right is called prior right."

Wang Jianping's statement, also recognized by the Sichuan Academy of Social Sciences researcher, Beijing Deheng (Chengdu) law firm lawyer Xia Liangtian. In Xia Liangtian's view, green pepper as a commonly grown, a large number of food flavoring the main raw material, itself shall not be registered as a trademark. Sichuan as a large province of green pepper production, you can hire a lawyer specializing in intellectual property rights.

dozens of restaurants in sichuan accused, just because the store name with "green pepper" 2

Recently, a netizen in the online posting, because the signboard has "green pepper" several words, sichuan a number of restaurants by a Shanghai catering company to the lawsuit. The netizen's post shows that a Shanghai company called Shanghai Wan Cui Tang Catering Management Limited sued dozens of Sichuan restaurants in November and December.


Is the use of trademarks containing the word "green pepper" suspected of infringement?

It turns out that Shanghai Wan Cui Tang Catering Management Company Limited obtained the trademark "青花椒" in 2014. Because some restaurants in Sichuan without authorization, without authorization will contain "green pepper" three words of the trademark used in the operation of the store's door, plaque, billboards, point menu, store background wall, etc., infringement of its trademark.

The court's decision that the green pepper is not the common name of the restaurant, the court's statement is correct, the green pepper registered trademark is not a problem, and does not violate the trademark law. Apple, millet can be registered as a trademark, green peppercorns can certainly be. However, green peppercorns is the name of a seasoning, which means that no matter who has registered the trademark of green peppercorns, they have no right to interfere with the use of green peppercorns as a seasoning.

Green peppercorns are just the seasoning and cooking method indicated

In fact, the green peppercorns in the store name Green Peppercorns Fish Shop and Green Peppercorns Hot Pot Shop are just the seasoning indicated and the cooking method of the dish indicated, which does not belong to the trademarked use, and therefore does not constitute infringement. The store owners did not raise this key point, and the judge did not take the initiative to consider this point, the judge maintains a neutral attitude and does not take the initiative to explain the understandable, in fact, this is the trademark field of legal common sense, do not understand?

Article 11 of China's Trademark Law provides that the following signs shall not be registered as trademarks: (a) only the common name of the goods, graphics, models; (b) only directly express the quality of the goods, the main raw materials, functionality, use, weight, quantity and other characteristics; (c) other lack of distinctive features. The signs listed in the preceding paragraph after the use of distinctive features, and easy to identify, can be registered as a trademark.

Green peppercorns in the end belong to the common name of the goods and use a wide range of geographical areas?

The dispute over the name is that if the trademark is a commonly used generic name for goods and is used in a wide range of geographic areas, a trademark dispute can be resolved by requesting the TRAB to revoke the plaintiff's trademark. And as a trademark component of the generic name, anyone who constitutes a legitimate use of the generic name of goods was applied for a registered trademark or a part of the registered trademark, the trademark owner, although the trademark enjoys the exclusive right, but shall not restrict the use of the generic name of the goods by others.

According to the Supreme People's Court until the case, due to historical traditions, customs, geographic environment and other reasons for the formation of the relevant market is relatively fixed goods, its common name in the relevant market can be recognized as a common name; registered trademark owner can not be claimed because of its contribution to the promotion of the goods market of the common name of the goods enjoy the right to a trademark, no right to prohibit others from using the common name to indicate the source of the variety of goods. From this level of green peppercorns as a kind of widespread cultivation, a large number of food seasoning main raw materials, itself shall not be registered as a trademark. Sichuan as a large province of green pepper production, but Shanghai Wan Cui Tang catering management Co., Ltd. registered "green pepper" not for the purpose of use, but maliciously registered trademark, then any person or unit can request the Trademark Review and Adjudication Board to declare the registered trademark invalid.

If you don't use the trademark for the purpose of suing for infringement to make money, you are suspected of malicious prosecution

As of July 21, 2021, Shanghai Wancui Tang Catering Management Company Limited has registered 97 trademarks, many of which contain the words "青花椒" and other words, and the trademark is registered in the name of the company.

Besides, it is understood that there are two lawsuits, the plaintiff withdrew in court, because the defendant found containing the word "green pepper" store name has been used for more than 10 years, than the plaintiff registered the green pepper trademark of the time much earlier, according to the principle of prior use, means that in any case is not considered to be an infringement!

dozens of restaurants in sichuan were accused, just because the name of the store with "green pepper" 3

Following the "hot soup" "meat bun", sichuan's green pepper was also "stared at". "staring".

December 22, a netizen in the spicy community posting, because the store signs contain "green pepper" three words, Sichuan has a number of restaurants, was a Shanghai catering company sued. Netizens questioned, as a condiment, "green pepper" is registered as a trademark itself is unreasonable, worried about such a lawsuit, will bring a huge blow to the restaurant business.

December 23, Cover News reporter contacted one of the businesses being sued, "Shehong County, Wang Kee green peppercorns fish village" owner Mr. Wang. Mr. Wang said, in order to respond to the lawsuit, he prepared for more than a month before and after, did not expect November 25 before the court, the prosecution Shanghai Wan Cui Tang Catering Management Company Limited in the materials he prepared, the court withdrew the case.

Store name with "green pepper" infringement?

Many restaurants in Sichuan were sued by a Shanghai company

In the post that raised concerns, netizens claimed that many restaurants in Sichuan were being sued by a Shanghai-based catering company because of the words "green peppercorns" on their signboards.

The company that sued the Sichuan restaurants is Shanghai Wan Cui Tang Catering Management Company Limited, which sued dozens of Sichuan restaurants in November and December 2021.

The reason for the lawsuit was that Shanghai Wan Cui Tang Catering Management Co., Ltd. had obtained the trademark of "Green Pepper", and without authorization, these restaurants used it on the front of their stores, plaques, billboards, order menus, and the back wall of their stores, which infringed on their trademark rights, and caused them to suffer significant economic losses.

The netizen listed some of the businesses being sued

In this regard, the netizen on the one hand felt that this matter is "very outrageous", "Sichuan as the production and consumption of peppercorns in large provinces, never thought that because of the peppercorns were sued in court! ".

On the other hand, the netizen believes that the ingredient condiment "green pepper" is registered as a trademark itself is unreasonable, and is worried that this "play with the law", the purpose of the "malicious lawsuit", will give a chance to the already existing "green pepper".

These are the first time I've seen a trademark registration for the "green pepper", and I'm worried that it's a "play on the law" and a "malicious lawsuit" with a clear purpose.

Appealed by the merchants:

The other party withdrew after the court hearing, questioning "the purpose of the prosecution is not pure"

"I feel that they this is completely extortion, is specifically in the name of copyright infringement to find money!" The afternoon of December 23, mentioning this matter, one of the businesses being sued "Shehong County Wang Kee green pepper fish village" boss Mr. Wang, still indignant.

In October this year, Mr. Wang learned that he was sued, shocked, he also immediately with his family, began to prepare their own business information and other information to prepare for the lawsuit, "really busy before and after more than a month, sleep is not good."

The business license of the sued business

According to Mr. Wang, his "Wang Ji green pepper fish farm" business registration time for August 30, 2011, while the Shanghai Wan Cui Tang Catering Management Co. The other side is much earlier than the other side.

Mr. Wang said, his store signs using the word "green pepper", the intention is to "green pepper" as a product of raw materials to use, in order to highlight the raw materials added to the production of food, not as a food service trademark. Moreover, the plaque on the front of the restaurant highlighted the words "Wang Ji", not confusing the registered trademark "green pepper".

In the catering industry for many years, Mr. Wang believes that the green peppercorn fish, the Sichuan folk have formed a cuisine, in Sichuan or Chongqing, any county, city, use the map to search for "green peppercorn fish" four words, there are a lot of such restaurants, only on the plaque in front of the font size of the difference in Sichuan, "green peppercorn", "green peppercorn", "green peppercorn", "green peppercorn", "green peppercorn", "green peppercorn". The "green peppercorns" are a household name for flavoring ingredients.

"In the afternoon of November 25th ready to court, the other side looked at my entire set of defense, the results of the court, they withdrew directly." For such prosecution behavior, Mr. Wang questioned the company purpose is not pure, "is not deliberately to extortion?"

The plaintiff withdrew

Lawyer's view:

No factual basis and justified reasons for the lawsuit, to be investigated according to the law

For this matter, the Sichuan one on the partner of the law firm, Mr. Lin Xiaoming lawyers that, according to the "Trademark Law". Trademark Law, only the general name of the goods, graphics, models; only directly indicate the quality of the goods, the main raw materials, functions, uses, weight, quantity and other characteristics of the sign, shall not be registered as a trademark. The signs listed in the preceding paragraph after the use of distinctive features, and easy to recognize, can be registered as a trademark.

In addition, the Trademark Law also provides that the names of administrative divisions above the county level or publicly known foreign names shall not be used as trademarks. However, the name of the place has other meanings or as a collective mark, proof of the trademark component except; has been registered using the name of the trademark continues to be valid.

Thus, if the "green pepper" itself as a generic name, not through the use of distinctive features and easy to identify, it should not be registered as a trademark. If the "green peppercorns" registered party in the name of the name of the county above the title, the title of the name is not a collective trademark, proof of trademark component, then the registered party to bring the infringement of the claim is not the corresponding factual basis and justification, does not rule out the behavior of similar litigation abuse of the right to sue or even malicious litigation.

According to the regulations, if there is no factual basis and reasonable grounds for civil litigation, especially in intellectual property litigation, there is no right basis is recognized as the main basis for malicious litigation. According to the provisions of the Civil Procedure Law, malicious collusion between the parties, attempting to infringe on the legitimate rights and interests of others through litigation, mediation, etc., the people's court shall reject the request, and according to the severity of the circumstances to be fined, detained; constitutes a crime, shall be investigated for criminal responsibility.

In addition, according to the Supreme Court, the Supreme Prosecutor of the "on the handling of criminal cases of false litigation on the application of the law of the interpretation of a number of issues", many times to fabricate the facts of civil litigation or suspected of false litigation, of course, from the point of view of the lawsuit, not enough to be recognized as a "fabricated facts of the civil litigation", therefore, the behavior is more of an abuse of the lawsuit. This behavior is more of an abuse of the right to sue, should be rejected according to law, the plaintiff to apply for the withdrawal of its exercise of the rights of the way, but this behavior should not be fostered, thus affecting the normal business order.