"Green pepper" was registered and many hotels were accused of infringement. It is understood that the plaintiffs of this green pepper incident are all Shanghai Wancuitang Catering Management Co., Ltd., and the lawsuit first started in February 20 18. "Green pepper" was registered and many hotels were accused of infringement.
"Green pepper" was registered and many restaurants were accused of infringement. Recently, a number of restaurants in Sichuan Province were sued for trademark infringement by a catering company in Shanghai because of the name problem. During the interview, several defendant merchants told Beijing Youth Daily that green pepper is a special seasoning in Sichuan and is used in many Sichuan dishes. They believe that a condiment with a wide range of uses cannot be registered as a trademark. The reporter of Beiqing Daily found that the plaintiff company had sued many restaurants for trademark infringement many times, and the case was basically withdrawn or won, and the compensation amount ranged from 1.5 million yuan to 200,000 yuan. Some defendant merchants called this a "lawsuit that can't be won."
Beiqing Daily noticed that regarding the dispute over the registration of the "green pepper" trademark, individuals or enterprises had previously applied to the State Trademark Review and Adjudication Board for invalidation, but all of them were rejected. The State Trademark Review and Adjudication Board believes that the "green pepper" applied by the company for hotels, restaurants and other services does not violate the relevant provisions of the Trademark Law on generic names and can be registered. However, if there is unfair competition that hinders the development of the industry in actual use, the relevant subjects can find another way to remedy it.
Ms. Yang, a businessman in Chengdu who has been convicted of infringement before, said that she would appeal.
Several hotels containing "green peppers" were accused of trademark infringement.
June 5438+this year 10, Zhu Paixuan received a notice from the court and was sued by a restaurant in Shanghai for trademark infringement of "green pepper", claiming 50,000 yuan. After receiving the notice, Zhu Paixuan found out that the company named Shanghai Wancuitang Catering Management Co., Ltd. was founded on 20 13, and then began to register several related trademarks of "Green Pepper". Through the evidence provided by the other party, Zhu Paixuan found that as early as July this year, the other party sent someone to his shop to take photos and collect evidence. "I didn't know they were unannounced visits."
2021111On October 25th, the case was opened in the Intermediate People's Court of Guang 'an City, Sichuan Province. After Zhu Paixuan provided his own shop opening and registration information, Zhu Paixuan dropped the lawsuit on the day of the court session because he opened the shop before the registration of the "green pepper" trademark.
Ms. Yang, who runs green pepper fish in Chengdu, is not so lucky. She has received a court decision that she should pay the plaintiff 30,000 yuan. Ms. Yang told the reporter of Beiqing Daily that on 20 19, she opened a hot pot restaurant with green peppers and fish in Wenjiang District, Chengdu, and the store name was "Hot pot with green peppers and fish". Ms. Yang said that green pepper fish is a specialty of the store. When she opened the shop, she didn't know that "green pepper" was a registered trademark, only that it was the name of the seasoning. In June 5438+10, she received a summons from Chengdu Intermediate People's Court. 165438+1On October 26th, Ms. Yang's family went to court without a lawyer. "We think this is a common name, a raw material, and we think it makes sense."
During the trial, after seeing the evidence, shop signs, payment invoices and down payment codes provided by the other party, Ms. Yang realized that someone went to the store to collect evidence in May this year. 65438+February 18, Ms. Yang received the court judgment and paid the plaintiff 30,000 yuan. The verdict shows that the focus of the dispute in this case is whether the behavior of hot pot restaurant constitutes trademark infringement and civil liability. The court found that the hot pot restaurant used a trademark similar to the trademark involved, which infringed on the exclusive right to use a registered trademark and should bear civil liability for stopping the infringement and compensating for the losses. At present, Ms. Yang has removed the word "green" from the shop signboard.
According to Tianyancha's information, Shanghai Wancuitang Catering Management Co., Ltd. still has a number of information about filing a case or bringing a lawsuit against Sichuan catering merchants. Ms. Yang said that she wanted to appeal. At present, Ms. Yang has contacted many local defendant shops in Sichuan. As far as she knows, the progress of each case is different. Some have just received a subpoena, some have already decided, and everyone decided to exchange information.
Li Weihua (pseudonym), a merchant in Nantong, Jiangsu Province, is also one of the defendant's merchants. He described this as a "lawsuit that can't be won." Li Weihua told the reporter of Beiqing Daily that his store was opened in 2008. Later, he joined a catering company on 20 16 and paid an initial fee of 80,000 yuan. He is authorized to use brands such as "fish in green pepper casserole" and "fish with pickled vegetables", and the signboard in the store is "fish with green pepper". "I heard that the store I joined had to register' green pepper', but it was not registered successfully." Li Weihua said. Last year, Li Weihua was sued for infringement by Shanghai Wancuitang Catering Management Co., Ltd., and the court finally awarded compensation of 1.5 million yuan. After losing the case, Li Weihua can only change the "green pepper fish" in front of the store into "pepper fish".
Li Jihai, intellectual property consultant of Sichuan Cuisine Association and partner of Beijing Unitalen Intellectual Property Agency Co., Ltd. Sichuan Branch, told Beiqing Daily that the four merchants involved had previously consulted Sichuan Cuisine Association on related issues and puzzles, and provided them with comprehensive suggestions, opinions and related help. "At present, we intend to obtain evidence from at least three aspects, whether green pepper is a common name, whether Sichuan is the main producing area of green pepper, and whether green pepper is the main cooking seasoning of Sichuan cuisine. At the same time, we also want to discuss whether it is reasonable for the plaintiff company to register and use the trademark. "
It is understood that according to the plan, relevant departments, involved merchants and lawyers in Sichuan will hold a seminar organized by Sichuan Cuisine Association next week.
The plaintiff successfully defended her rights with the trademark of "green pepper" for many times.
According to the survey data, Shanghai Wancuitang Catering Management Co., Ltd. was established in June 2065438+2003. Its main business scope is small restaurants (excluding cooked food), drinking in bars and catering management. It has several "green pepper casserole fish" shops in Shanghai, Nanjing and Nantong. On the 24th, the reporter of Beiqing Daily opened the company's official website, and a "Statement of Rights Protection" popped up. It was mentioned in the statement that Shanghai Wancuitang Catering Management Co., Ltd. has taken rights protection actions to protect the rights of the "Green Pepper" brand (trademark registration number: 12046607) under the name of Shanghai Wancuitang Catering Management Co., Ltd. through legal channels.
The reporter of Beiqing Daily found that Shanghai Wancuitang Catering Management Co., Ltd. has registered the related trademarks of "green pepper" since 20 13, including not only "green pepper" but also "green pepper", "golden pepper" and "green pepper". Among them, the trademark registration classification of "green pepper" includes catering and accommodation, advertising and sales, food, convenience food, clothing, shoes and hats, kitchen sanitary ware, manual equipment and many other classifications. However, among these registered trademarks, the applications for trademark classification 29 (food) and 30 (convenience food) were rejected and not accepted.
Since then, Wancuitang Company has repeatedly used trademarks to protect rights. The reporter of Beiqing Daily noticed that in many judgment results that have been announced so far, Wancuitang Company withdrew the lawsuit or won the case as a result.
statement
"Green pepper" still has the identity and distinctiveness to distinguish goods or services.
The reporter of Beiqing Daily noticed that one of the accused infringing companies filed an appeal after losing the case. The reason for the appeal mentioned that green pepper belongs to the name of a plant and its seeds, and green pepper is an important seasoning for catering and Sichuan cuisine. The two trademarks mentioned by the appellee lacked the necessary distinctiveness. Even if the appellant uses the word green pepper in catering service, it only indicates the raw material and taste type of the product, does not play the role of identifying the source of the goods, and will not cause confusion among consumers, which belongs to the situation stipulated in Article 59 of the Trademark Law. Although the appellee is the owner of the trademark involved, green pepper, as an important and universal condiment, cannot prevent the appellee and other enterprises and individuals from using it reasonably.
In the second instance, Qingdao Intermediate People's Court held that the green pepper in the usual sense is the name of a plant and its seeds and condiments made from it, but according to the provisions of China's Trademark Law, "green pepper" itself is not a matter that cannot be registered, and it still has the characteristics of distinguishing goods or services, so the green pepper trademark involved in the case has been registered according to law, and the legitimate rights and interests of trademark owners should be protected; In this case, the Appellee claimed that the Appellee's tort did not use "green pepper" as seasoning and taste, but the Appellee used "green pepper" significantly on its door head and packaging bag, which was not only a descriptive use advocated by the Appellee, but as a commodity logo. Therefore, the appellant's argument that it is proper use cannot be established; The appellant's behavior constitutes an infringement of the appellee's trademark right.
Whether it constitutes infringement depends on the use of "green pepper"
As early as 20 17, an individual filed an application for invalidation of the trademarkNo. 12046607 "Green Pepper". The applicant believes that "green pepper" is a common condiment in people's daily life, which is used to improve the taste and sometimes used in spicy food, so it is a common raw material in catering industry.
In 20 19, a catering company sued for infringement once again declared the trademark number 12046607 invalid. The company mentioned in the application reason that green pepper, as a condiment, belongs to the common name of goods or services generally recognized by the relevant public, and the respondent registered "green pepper" on Service No.43, which is a descriptive trademark and does not have it. The registration of disputed trademarks violates the principle of good faith.
The State Trademark Review and Adjudication Board rejected the application twice. The State Trademark Review and Adjudication Board believes that the "green pepper" applied by the company for hotels, restaurants and other services does not violate the relevant provisions of the Trademark Law on generic names and can be registered. However, if there is unfair competition that hinders the development of the industry in actual use, the relevant subjects can find another way to remedy it.
Can green pepper be registered as a trademark? In this regard, Wang Jianbing, a lawyer of Beijing Youken Law Firm, told Beiqing Daily that green pepper itself is a condiment, so it is not allowed to register the trademark of condiment category, but it is no problem to register the hotel category, and green pepper is not a common name of hotel category. Wang Jianbing said that this is equivalent to "Apple" can not be registered as a fruit trademark, but can be registered as an electronic product trademark. Previously, the Trademark Review and Adjudication Board rejected two applications for invalidation, and also responded to the query about "common name" in Article 11 of the Trademark Law.
Whether it constitutes infringement or not depends on the way the defendant uses it, according to Wang Jianbing. If the word "green pepper" is used as a trademark on the hotel signboard, it may constitute infringement, but if the introduction of food seasoning is only an objective description, it may not constitute trademark infringement.
Wang Jianping, a professor at Sichuan University Law School, executive director of china law society Civil Law Research Association and director of China Commercial Law Research Association, told Beiqing Daily that he thought that from a legal point of view, there was no problem for Shanghai companies to register the "green pepper" trademark. As a common name, "pepper" cannot be registered, but adding "green" is special and can be registered.
"Green pepper" was registered and many hotels were accused of infringement. Recently, several restaurants in Sichuan were sued by a catering company in Shanghai because of the name of the restaurant, the name of the dish and the word "green pepper" on the menu. While this incident caused heated discussion, netizens even suspected that this rights protection was "touching porcelain".
As the incident fermented, Zuo, the chairman of the company, responded through the media that he had ordered the withdrawal of all lawsuits and denied the claim of making money through malicious lawsuits or using trademarks.
The defendant was surprised to learn the news, but has not yet received a formal notice of withdrawal.
The facts of a legal case
Claim 2 million for the word "green pepper"
It is understood that the plaintiffs of the green pepper incident are all Shanghai Wancuitang Catering Management Co., Ltd. (hereinafter referred to as "Wancuitang"). According to media reports, Wan sued dozens of restaurants across the country for compensation because the word "green pepper" appeared in store names, recipes, dishes and other places, including more than ten merchants in Chengdu, Suining and Meishan, Sichuan. Wan believes that it registered the "green pepper" trademark, and the sued merchant has the word "green pepper" on the signboard and menu, which is an infringement.
The reporter found that as early as 2065438+February 2008, Wan filed a lawsuit on the grounds of infringement of trademark rights, and there were 7 records in the online judgment documents of China. 20180,000 v. a catering company in Shanghai for a claim of 2 million yuan. After trial, the court ruled that the defendant constituted an infringement and compensated 200,000 yuan. After the defendant appealed, the original judgment was upheld.
In 2020, two shops operated by individuals in Jiangsu became defendants, both of whom were claimed 80,000 yuan. After trial, the court awarded compensation of 10,000 yuan15,000 yuan.
202 1 A green pepper fish restaurant in Guang 'an, Sichuan was also claimed 10000 yuan, but it was finally settled by Wancuitang.
The claim that the trademark was invalid was rejected.
According to the judgment of Shinan District People's Court of Qingdao, Shandong Province on April 6, 2006+2065438, Wan obtained the trademark of "Green Pepper" from Shanghai Kenai Industrial Co., Ltd., and the approved services include restaurants, cafes, houses (hotels and guest houses for meals), banquets, bar services, fast food restaurants, teahouses, mobile catering services and self-service.
More than five months later, the snack bar of Taishi Workshop in Shinan District of Qingdao (hereinafter referred to as "Taishi Workshop") was registered and established. 20170,000 took this snack bar to court and claimed 300,000 yuan.
The reason is that "green pepper" is used in the door, plaque, billboard, menu and background wall of the shop.
Later, Taiwan Province Food Workshop removed the door plaque and shop advertisement suspected of infringing the exclusive right to use the green pepper trademark in Wancuitang, and replaced the menu suspected of infringing the exclusive right to use the green pepper trademark. At the discretion of the court, the Taiwan Province food workshop was ordered to pay 30,000 yuan.
It is understood that the person in charge of the food workshop in Taiwan Province filed an application for invalidation of the disputed trademark on the third day after the trial, but it was eventually rejected. After the judgment of the first instance was made, Taiwan Province Food Workshop appealed and the court upheld the original judgment.
doubt
Why can "green pepper" be registered successfully?
Green pepper is a common condiment, and it is also a geographical symbol of some big green pepper planting counties in Sichuan. These businesses are puzzled. Why can green pepper be registered as a trademark?
Chang Liang, a lawyer of Beijing Jiashan Law Firm, believes that this "green pepper" incident is inevitably reminiscent of the previous "Tongguan Meat Sandwich" incident, but the two are not of the same nature and there are differences.
The "Tongguan Chinese hamburger" incident actually made it clear that geographical trademarks could not prevent others from using the place names contained in the trademarks reasonably. However, "green pepper" is not a geographical trademark. According to legal logic, there are not many loopholes in its way of safeguarding rights. If the restaurant uses the word "green pepper" on the signboard and confuses the public, the restaurant may constitute infringement.
"You can use' green pepper' to register a trademark and enjoy the exclusive right to use the trademark." Chang Liang explained that the first paragraph of Article 11 of China's Trademark Law stipulates that only the common name, figure and model of the commodity shall not be registered as a trademark. According to the above law, "green pepper", as a generic name, cannot be registered as a trademark in the category of convenience food. However, Wancuitang is not a "green pepper" trademark registered in the convenience food category, but a trademark registered in the catering and accommodation category. However, China's Trademark Law does not prohibit the cross-category registration of common names, that is to say, as long as "green pepper" is not registered in the category of convenience food itself, there is no legal obstacle to registration in other categories.
respond
Denying a malicious lawsuit is withdrawing it.
On February 25th, 65438, Wan said in response to the media that all lawsuits were initiated by a third party-Zhengshang Law and (Beijing) Intellectual Property Service Co., Ltd. (referred to as Zhengshang Law and), which was not the original intention of Shanghai Wancuitang. And denied the idea of making money through malicious lawsuits or using trademarks.
"In the process of registering a trademark, I found that many names were registered and it was difficult to register. At that time, I thought about more than 20 names to see which one was registered. " Zuo introduced that Kenai Industrial Company successfully registered the "Green Pepper" brand, so it used this brand to cook grilled fish.
"In the past, we mainly sued merchants who maliciously imitated our store name, renovated or even defrauded the franchise fee." Fei said that in the process of defending rights, the cost of the claim is not even enough for lawyers' fees. Last year, Zheng Shangluhe offered to help defend rights for free, and the proceeds of rights protection were owned by the company. However, in the actual rights protection, Fei claimed that he did not participate, and he did not know that he had sued so many Sichuan restaurants.
"At present, it has been ordered to uphold the law and withdraw all lawsuits, and stop cooperating with it to further communicate whether there is excessive rights protection and reserve the right to pursue legal and legal responsibilities." Zuo Zheng fly said.
On the 26th, the staff of Zhengshanghe told reporters that they did receive a call from Wan and would issue a unified response to this matter in the near future.
Merchants said that they may accept an apology or continue to sue.
The proprietress of a hot pot restaurant with pepper and fish in Wenjiang District, Chengdu, changed her avatar to express her happy mood after learning the news that Wan withdrew the lawsuit. "We won, I just want to change my avatar and change my mood." She wrote on her personal short video platform account.
Ms. Tang, the person in charge of Tsinghua Hotpot Restaurant in Qingyang District, Chengdu, said in an interview with the media that she was surprised to see the news that the merchant decided to withdraw the lawsuit. "Most businesses in the rights protection group have not received the news of the official withdrawal. Originally, we planned to entrust a lawyer to counterclaim together on February 27, 65438. "
At present, about 20 shops in the rights protection group with "green pepper" have begun to prepare counterclaims, suing the trademark of Wanqingjiao for being invalid.
"We are discussing that we may accept an apology or continue to sue him." The interviewed merchants said.
"Green pepper" was registered and many hotels were accused of infringement. Following the trademark infringement of Hu spicy soup in Xiaoyao town and Chinese hamburger in Tongguan, green pepper has once again attracted attention. Recently, a number of catering enterprises in Chengdu, Suining, Meishan and other places in Sichuan were sued by a catering management enterprise in Shanghai for their store signs and menu dishes with the word "green pepper". The owner of a restaurant in Chengdu said that/kloc-0 received a court summons at the end of 0/0 and was sued by a catering company in Shanghai for trademark infringement of green peppers. Finally, the court awarded the other party 30 thousand yuan. These businesses are puzzled. Why can green pepper be registered as a trademark? At present, many sued restaurant owners have also started joint counterclaims.
These sued businesses can really be described as "people falling from the sky sitting in a pot at home". Just because they used the words "green pepper", it somehow constituted infringement. Not only do the businesses involved feel wrong, but ordinary netizens also feel very confused. This actually involves the question of whether a generic name can be registered as a trademark and whether it can affect the use of others after being registered as a trademark.
According to Articles 11 and 59 of the Trademark Law, only the logo with the same name, figure and model as the commodity may not be registered as a trademark, but it can be registered as a trademark if it has obvious characteristics and is easy to identify after use. A registered trademark contains the common name, figure and model of a commodity, or directly indicates the quality, main raw materials, function, use, weight and quantity of the commodity, or contains a place name, and the exclusive right holder of a registered trademark has no right to prohibit others from using it properly.
In addition, according to the provisions of Article 49 of the Trademark Law, when a registered trademark becomes the common name of the goods approved for use, any unit or individual may apply to the Trademark Office for cancellation of the registered trademark. For example, USB flash drive was registered as a trademark by a company in Shenzhen and used in mobile storage products. Later, due to its wide use, USB flash drive became the common name of goods, and its registered trademark was revoked.
What is the common name of a commodity? Refers to the legal or commonly used commodity names within a certain range. Specific to the "green pepper" dispute, "green pepper" can be a plant, a seasoning, a food preparation method or a food raw material. Then, although some merchants have registered the text and logo of "green pepper", as long as others do not completely copy the logo of the registered trademark when using "green pepper" and do not cause confusion, it should belong to fair and reasonable use, and there is no intentional infringement.
On the contrary, it is debatable for some businesses to sue other operators with the registered trademark of "green pepper". It is necessary to judge whether this is improper rights protection and whether it will interfere with the market order according to the actual situation.
Previously, in view of the rights protection issues such as "Tongguan Meat Sandwich", the relevant person in charge of the Supreme Law pointed out that there is no basis in the Trademark Law for individual associations and organizations to use collective trademarks of geographical indications to obtain the franchise fee. The Supreme Law resolutely curbed malicious litigation with a clear attitude and effective measures. For trademark rights protection that everyone is concerned about, relevant departments should strictly protect intellectual property rights, not only to ensure public interests, but also to encourage innovation. The judicial organs should also be cautious and unify the standards of adjudication so that legitimate operators will not be confused by "infringement" lawsuits.